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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

KERRY M. SPENCER, )
)
Petitioner, )
)
v. ) Case No. 2:16-cv-01877-AMM
)
TERRY RAYBON, Warden of )
William C. Holman Correctional )
Facility, )
)
Respondent. )
MEMORANDUM OPINION AND ORDER
Alabama prisoner Kerry M. Spencer petitions this court for a writ of habeas
corpus under 28 U.S.C. § 2254, challenging his capital murder convictions and death
sentence in the Circuit Court of Jefferson County, Alabama in connection with his
murder of three Birmingham police officers and his attempted murder of a fourth
officer. Doc. 1. Mr. Spencer alleges that multiple constitutional violations require
the reversal of his conviction s and sentence and requests discovery and an
evidentiary hearing. See id . The petition is fully briefed. Docs. 1, 18, 19, 21. 1 Mr.
Spencer has not established that he is entitled to relief . For the reasons explained

1 After briefing closed, the court directed the substitution of Warden Terry Raybon
for the former Commissioner of the Alabama Department of Corrections, Jefferson
Dunn. Doc. 26 at 2.
FILED

2026 Apr-01 PM 04:14
U.S. DISTRICT COURT
N.D. OF ALABAMA
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below, the court DENIES Mr. Spencer’s request for habeas relief and DISMISSES
his Section 2254 petition.

Case 2:16-cv-01877-AMM Document 31 Filed 04/01/26 Page 2 of 218

TABLE OF CONTENTS
I. BACKGROUND ............................................................................................ 6
A. Criminal Conduct, Conviction, and Sentence ............................................. 6
B. Procedural History ......................................................................................22
II. STANDARD OF REVIEW .........................................................................24
A. Sections 2254(d) and (e) ..............................................................................25
B. The Procedural Default Doctrine ...............................................................28
C. Burden of Proof and Heightened Pleading Requirements ......................32
D. Claims Dismissed Pursuant to Rules 32.3, 32.6(b), and 32.7(d) of the
Alabama Rules of Criminal Procedure .....................................................33
E. Ineffective Assistance of Counsel ...............................................................35
III. ANALYSIS ...................................................................................................38
A. Ineffective Assistance Of Counsel Claims .................................................38
1. Guilt Phase Ineffectiveness ................................................................... 38
i. Failure To Object to Prejudicial Atmosphere .........................................39
ii. Failure To Object to Victim Impact Clothing and Accessories ..............48
iii. Counsel’s Pretrial Commentary To Local Media ...................................53
iv. Failure To Move For Change In Venue ..................................................58
v. Failure To Conduct Adequate Voir Dire.................................................66
vi. Failure To Investigate And Present Viable Defense Theory ..................84
vii. Failure To Investigate And Present Expert Testimony Supporting
Manslaughter Charge Based On Voluntary Intoxication ........................93
viii. Failure To Have Thorough Mental Evaluation By Competent Expert
103
ix. Failure To Object To Introducing Evidence of Prior Bad Acts ............110
x. Failure To Subpoena “Key” Witness ....................................................110
xi. Failure To Argue Governmental Interference With Material Defense
Witness ..................................................................................................118

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xii. Failure To Object To The Trial Court’s Failure To Instruct Jury On Both
Voluntary Intoxication And Manslaughter Defense .............................122
xiii. Failure To Ensure Complete Appellate Record .................................138
xiv. Guilt-Phase Error Cumulative Effect .................................................139
2. Penalty Phase And Sentencing Ineffectiveness ................................. 141
i. Failure To Investigate And Present Mitigation Evidence During Penalty
Phase ......................................................................................................141
ii. Failure To Challenge Aggravating Factors ...........................................153
iii. Failure To Object To Double- Counting As Element Of Charge And In
Aggravation ...........................................................................................159
iv. Failure To Object To Death Sentence As Disproportionate .................160
v. Failure To Object To Improper Victim Impact Evidence During Judicial
Sentencing .............................................................................................161
vi. Failure To Object To Improperly Considered Evidence .......................165
vii. Penalty-Phase Error Cumulative Effect ................................................170
3. Direct Appeal – Ineffective Assistance Of Counsel .......................... 171
B. Substantive Claims ....................................................................................182
1. Alabama’s Capital Sentencing Process Does Not Violate Ring v.
Arizona................................................................................................. 182
2. Trial Court Erred By Refusing To Instruct On Lesser Included
Offenses ............................................................................................... 188
i. Refusal To Charge Jury On Voluntary Intoxication And Manslaughter
188
ii. Refusal To Charge Jury on Provocation Manslaughter ........................194
iii. Refusal To Charge Jury on Self-Defense ..............................................197
3. Prosecution’s Alleged Interference With Mr. Spencer’s Right To
Present Evidence In His Defense ...................................................... 201
4. Alabama’s Method Of Execution ...................................................... 213
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5. The Cumulative Effect Of The Alleged Errors Does Not Entitle Mr.
Spencer To Habeas Relief ................................................................. 214
IV. DISCOVERY & EVIDENTIARY HEARING .......................................215
V. CONCLUSION ..........................................................................................217

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I. BACKGROUND
A. Criminal Conduct, Conviction, and Sentence
On July 17, 2004, Birmingham Police Officers Carlos Owen, Harley A.
Chisolm III, and Charles R. Bennett were shot and killed while executing an arrest
warrant on Nathaniel Woods at an apartment complex where Mr. Woods and Mr.
Spencer maintained a drug dealing operation in Ensley, Alabama . See Spencer v.
State, 58 So. 3d 215, 220 –23 (Ala. Crim. App. 2008) ( “Spencer I”). A fourth
Birmingham Police Officer, Michael Collins, was also shot, survived, and testified
at Mr. Spencer’s trial. Id.; see generally Docs. 17-22 and 17-23. Mr. Spencer was
tried and convicted of capital murder and sentenced to death. Spencer I, So. 3d at
254. Likewise, Mr. Woods was tried and convicted of capital murder ; the State
executed him in 2020. See id. at 221 n.3; Case No. 2:16-cv-01758-LSC-JEO, Docs.
50, 51.
Around 10:00 am on the morning of Ju ly 17, 2004, Officer Owen notified
dispatch that he was getting out of his patrol vehicle to investigate suspicious activity
in Ensley on the 1600 block of 18th Street. Spencer I , 58 So. 3d at 220; see, e.g.,
Doc. 17 -23 at 5– 7. Officer Collins overheard the dispatch call and went to the
address identified to provide backup to Officer Owen. Spencer I, 58 So. 3d at 220.
Officer Collins drove his patrol vehicle to the back of the apartment complex where
he saw Officer Owen talking with a then unidentified, Black male through a screened
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door. Id.; Doc. 17-23 at 9. Officer Collins later learned from Officer Owen that the
man behind the screened door was Nathaniel Woods. Spencer I, 58 So. 3d at 221.
On scene, Officer Collins witnessed Mr. Woods’s behavior toward Officer
Owen. Mr. Woods yelled profanities at the officers, including “Fuc k the police .”
Spencer I, 58 So. 3d at 220 (quoting Doc. 17-23 at 14). Mr. Woods taunted Officer
Owen, saying, “[Y]ou hide behind that badge and gun. I ’ll fuck you up. Take that
badge and gun off, I ’ll fuck you up. ” Id. (quoting Doc. 17 -23 at 17). In response,
Officer Owen removed his badge but quickly put it back on when Carolyn Slaughter,
a resident of the adjoining apartment, approached. Id. at 220. While Ms. Slaughter
and Officer Owen talk ed, Officer Collins saw movement in one of the apartment
unit’s back windows. Spencer I, 58 So. 3d at 221; see also Doc. 17-23 at 14– 15.
Officer Collins was unable to see the person through the glass but heard someone
yell “Fuck the police” from the other side of this back window. Spencer I, 58 So. 3d
at 221 (quoting Doc. 17-23 at 18); Doc. 17-23 at 18–19.
In addition to Mr. Woods, Travis Dumas lived at the apartment on 18th Street
as of Ju ly 17, 2004. Spencer I, 58 So. 3d at 223 (citing Doc. 17- 24 at 7 –8). Mr.
Dumas was one of many State witnesses who testified at Mr. Spencer’s trial.
Specifically, Mr. Dumas testified that Mr. Woods, Mr. Spencer, and another person
he called “the doorman” also lived in the apartment. Doc. 17-24 at 7–8. Mr. Dumas
said that he lived there for almost three weeks and was aware of the police presence
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in the area, but had not seen officers at the apartment before the morning of the
shootings. Spencer I, 58 So. 3d at 223. Mr. Dumas testified that people frequently
came and went from the apartment because they were selling crack cocaine out of
the apartment. Doc. 17- 24 at 9. Mr. Dumas was the assistant doorman, which he
explained meant that it was his responsibility to control the flow of people coming
and going from the apartment, while selling them drugs. Id. at 9–10.
Mr. Dumas spent the night of July 16, 2004, at the apartment. Spencer I , 58
So. 3d at 223. Mr. Dumas recalled about eight or nine people slept at the apartment
that night. Doc. 17-24 at 11. The next morning, Mr. Dumas was awoken by a bang
on the front door. Doc. 17-24 at 12; Spencer I, 58 So. 3d at 223. Mr. Dumas ran from
where he was sleeping towards the back door because he believed that the police
were going to raid the home, but he did not leave because there were police officers
at the back door. Doc. 17 -24 at 12–14. Mr. Dumas made his way back towards the
front and saw Mr. Woods standing at that door, arguing with police officers. Spencer
I, 58 So. 3d at 223. Mr. Dumas also recalled hearing Mr. Spencer yelling at the
officers and overheard one officer say that they would “be back.” Id. (quoting Doc.
17-24 at 22).
Mr. Dumas testified that Mr. Spencer said that he was going to “bust” the
officers if they returned, which Mr. Dumas believed to mean “ shoot” the officers.
Id. (quoting Doc. 17-24 at 23) . But Mr. Dumas said that he did not take Mr.
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Spencer’s comment seriously. Id. During his testimony, Mr. Dumas identified the
SKS rifle used in the shootings on July 17, 2004, as the gun Mr. Spencer bought and
live-fired the night before. Id. Mr. Dumas recalled that Mr. Spencer “essentially kept
it in his possession from the time he purchased it until the shootings the following
day.” Id.
When Officer Collins returned to his patrol vehicle, and having learned Mr.
Woods’s identity, he entered his name into the onboard computer to determine if
there were any open arrest warrants for Mr. Woods. Id. at 221. Officer Collins
checked city files first before running Mr. Woods’s name though the National Crime
Information Center ( “NCIC”) database. Doc. 17- 23 at 2 2–24. Officer Collins ’s
search of the NCIC database indicated that Mr. Woods had an arrest warrant. See
id.; see also Spencer I, 58 So. 3d at 221. Additional testimony adduced and evidence
admitted at trial confirmed that Mr. Woods had an active outstanding warrant with
the City of Fairfield for assault in the third degree. Doc. 17 -15 at 9–10; Doc. 17-24
at 110–11; see also Doc. 17-24 at 189 (indicating Mr. Woods’s warrant was issued
for misdemeanor assault) . The officers obtained a printout from the NCIC of the
outstanding charges against Mr. Woods along with his photograph. See Doc. 17-23
at 38, 102–03, 112; Doc. 17-24 at 136–37.
Officer Collins testified that he, Officer Owen, Officer Benne tt, and Officer
Chisolm went back to the apartment to execute the arrest warrant. Spencer I, 58 So.
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3d at 221. Upon arrival, the officers split into groups of two, with Officers Chisolm
and Bennett covering the front and Officers Owen and Collins covering the back. Id.
By the time they reached their positions, Officer Collins remembered that Mr.
Woods was waiting for them on the other side of the screened door. Id.
Officer Owen told Mr. Woods that he had an active arrest warrant, and Mr.
Woods began cursing, denied the existence of a warrant, and demanded to be shown
“‘the papers.’” Id. (quoting Doc. 17-23 at 111); see also Doc. 17-23 at 36. Officer
Chisolm left his station at the front of the apartment to show Mr. Woods a printed
copy of the arrest warrant from the NCIC. Spencer I, 58 So. 3d at 221. Mr. Woods
again cursed at the three officers before running away from the door and into the
apartment. Id. Officer Chisolm was the first to pursue Mr. Woods with Officer Owen
close behind and Officer Collins further back. Id. The officers did not have their
service weapons drawn upon entry, and Officer Collins testified that he never saw
any officer draw their gun while he was inside the apartment. Id. at 222.
When Officer Collins caught up, reaching the apartment’s kitchen, Officer
Collins saw Officer Chisolm holding Mr. Woods down to place him in handcuffs.
Id. at 221–22. Officer Collins believed Officer Chisolm had Mr. Woods in custody,
as Mr. Woods was yelling: “I give up. I give up. Just don’t spray me with that mace.”
Id. at 221–22 (quoting Doc. 17-23 at 41). Officer Collins then heard Officer Bennett,
who was waiting by the front entrance of the apartment, radio in confirmation that
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“‘[t]hey [were] coming out the front.’” Spencer I, 58 So. 3d at 222 (quoting Doc. 17-
23 at 41).
Mr. Woods, Officer Chisolm, and Officer Owen were blocking Officer
Collins’s path to the front door, so he went to the back door to run around the
perimeter and provide backup to Officer Bennett. Spencer I, 58 So. 3d at 222. Just
as Officer Collins was approaching the back door, he heard gunshots and “felt a slap
on his side” where his weapon remained holstered. Id.
After hearing the gunshots, Officer Collins was stunned while trying to find
cover and radio-in a “shots fired” call. Id.; Doc. 23 -17 at 45. Officer Collins was
aware that there were bullets coming out the back door of the apartment and ran for
cover behind his patrol car. Spencer I , 58 So. 3d at 222; Doc. 23-17 at 46. Once
barricaded, Officer Collins put out a “double aught” call over the radio. Spencer I,
58 So. 3d at 222; Doc. 23- 17 at 47. A “double aught” means an officer down and
requires precinct-wide assistance, activating a citywide emergency response. See
Spencer I, 58 So. 3d at 222.
Officer Collins stayed sheltered behind his patrol car as bullets struck his
vehicle. Id. Officer Collins testified that at one point, he remembered looking
towards the apartment and seeing a man shooting towards him from the threshold of
the back door. Id. Officer Collins identified Mr. Spencer as that man. Id. Officer
Collins then crawled to the other end of his car and saw that the man in the doorway
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was gone. Doc. 17 -23 at 50 –51. So Officer Collins put out over the radio a
description of Mr. Woods and the man from the doorway. Id. at 51. Officer Collins
suffered a gunshot to his leg, and his holster was damaged, from which he “later
found a metal fragment in his pants pocket.” Spencer I, 58 So. 3d at 222.
Many of the first responders to Officer Collins’s double aught call testified at
Mr. Spencer’s trial, including Officers Hugh Butler, Fred Alexander, and Terrance
Hardin, as well as Sergeants Ruben C. Parker and James Blanton. See id. at 222–23.
Officer Butler testified that when he walked towards the front door of the apartment
he saw Officer Bennett lying on the ground with his “‘eyes wide open, his pupils . . .
blown,’” and “‘a hole in his face with a little bit of smoke coming out of it.’” Id. at
222 (quoting Doc. 17-23 at 158 ). And Officer Butler recalled that as he and other
officers entered the apartment, they saw both Officers Owen and Chisolm lying on
the floor, “pretty obviously dead.” Spencer I, 58 So. 3d at 222 (quoting Doc. 17–23
at 170); Doc. 17 -23 at 160 –61; see also Doc. 17-23 at 195, 198 (testimony of
responding paramedic Thomas Edward Lindsey, Jr.). Officer Butler added that he
and the responding officers found an SKS assault rifle outside the front door of the
apartment and saw in plain view multiple other weapons located throughout the
apartment. Spencer I, 58 So. 3d at 222; see also Doc. 17-23 at 159–61.
Officer Alexander testified that he radioed in that there was an officer down
near the front door and two more officers down inside. Spencer I, 58 So. 3d at 222–
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23. Officer Hardin testified that he secured the SKS rifle because it was lying on the
ground next to Officer Bennett’s body and then helped to clear the apartment. Id. at
223. Further testimony established that the responding officers made a sweep of the
apartment to ensure it was clear before establishing a perimeter around the crime
scene both to preserve evidence and limit the geographical search for suspects. Id.
While the crime scene was being documented, officer search groups
canvassed the neighborhood for the suspects. Id. Sergeant James Blanton oversaw
one of these groups, heard that another group located a suspect hiding in a neighbor’s
attic, and went with his group to assist in the arrest. Id. Sergeant Blanton identified
Mr. Spencer as the man found in the attic and said that he was taken into custody
without further incident. Id.
That afternoon , Detective Jody Jacobs took a statement from Mr. Spencer
after Mr. Spencer knowingly waived his Miranda rights. Id. at 225. Mr. Spencer
initially denied being at the crime scene and having any involvement in the
shootings. Id. Mr. Spencer explained that he was hiding in that attic only because he
had two outstanding arrest warrants and didn’t want to go to jail and was aware that
there were officers canvassing the neighborhood. Id. However, Mr. Spencer’s
recollection of events changed after he learned that an eyewitness identified him as
the gunman. Id. After recounting his version of the day ’s events, Mr. Spencer
confessed to shooting Officers Owen, Chisolm, and Bennett. Id. Mr. Spencer also
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admitted to detectives that before fleeing the apartment, he went to the back of the
apartment and fired additional rounds towards an officer taking cover by his police
car. Id.
At trial, Mr. Spencer testified in his own defense. Id. at 226–28; Doc. 17-27
at 152–202; Doc. 17 -28 at 3– 24. After providing his recollection of the morning
encounter with police officers, Mr. Spencer told the jury that because of the police
scrutiny, he and Mr. Woods had decided not to sell any drugs that day. Doc. 17-27
at 163–81; Spencer I, 58 So. 3d at 226–27. Mr. Spencer testified that instead, he and
Mr. Woods had planned to wait for the police shift change and leave the apartment
at 3:00 p.m. to avoid being seen by the police. Doc. 17-27 at 182; Spencer I, 58 So.
3d at 227. Mr. Spencer said that while he waited, he fell asleep. Doc. 17-27 at 182;
Spencer I, 58 So. 3d at 227. Mr. Spencer testified that, w hile he was sleeping, his
SKS rifle was next to his leg. Doc. 17-27 at 182–83; Spencer I, 58 So. 3d at 227. Mr.
Spencer also testified that he took a Seroquel and dr ank a beer around ten in the
morning as a sleep aid. Doc. 17-27 at 185–86; Spencer I, 58 So. 3d at 227.
Mr. Spencer testified that he was awoken by a “commotion” in the apartment.
Doc. 17-27 at 188; Spencer I, 58 So. 3d at 227. According to Mr. Spencer, he got up
and went to the window to see what was going on and saw the police had returned.
Doc. 17-27 at 188–89; Spencer I, 58 So. 3d at 227. So Mr. Spencer grabbed his SKS
and walked out of the bedroom just as Mr. Woods ran towards him, holding his face
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in pain. Spencer I, 58 So. 3d at 227. According to Mr. Spencer, he heard something
behind him and turned around. Id. Mr. Spencer later testified that he thought it was
Officer Chisolm with his gun, so he “automatically opened fire.” Id. (quoting Doc.
17-27 at 191).
Mr. Spencer testified that he then turned to the front door, saw another officer
standing there, and shot the officer. Id. Mr. Spencer explained this decision to the
jury as “a split second decision” because that he did not “ ha[ve] time to” discern
whether this officer would “shoot [him].” Doc. 17-27 at 192; Spencer I, 58 So. 3d at
227. So Mr. Spencer admitted to having “opened fire ” but testified that it was
because the officer “pulled his gun up and [Mr. Spencer] already had the weapon in
[his] hand.” Doc. 17-27 at 192; Spencer I, 58 So. 3d at 227. Mr. Spencer testified
that he did not stop shooting until all the officers inside the apartment were down
because he thought they would kill him based on their threats during the earlier
confrontation. Doc. 17-27 at 192–93; Spencer I, 58 So. 3d at 227.
Mr. Spencer testified that he next went to the back door, where he saw a gun
on the ground next to one of the officers. Id. Mr. Spencer said he picked this gun up
and put it in his pocket because he did not want to be shot in the back and was unsure
whether the officer was still alive. Id. Mr. Spencer recalled then standing in the back
door watching Officer Collins run to his patrol car, and Mr. Spencer testified that he
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allowed Officer Collins to take cover before firing “a couple of rounds into his
windshield.” Id. at 227–28 (quoting Doc. 17-27 at 197).
Mr. Spencer then testified that he carefully ran towards the front door with his
SKS pointing down towards the floor. Id. at 228; Doc. 17-27 at 197−99. Mr. Spencer
testified that Officer Bennett was lying on the ground near the front door and when
Mr. Spencer passed him to leave , Officer Bennett’s hand “‘jumped and touched’”
Mr. Spencer. Spencer I, 58 So. 3d at 228 (quoting Doc. 17-27 at 199). Mr. Spencer
testified that this was why he fired his SKS again, calling his reaction an “automatic
reflex.” Id. (quoting Doc. 17-27 at 199). Mr. Spencer testified that he then dropped
the rifle and fled. Id.
Mr. Spencer testified that he did not intentionally kill any of the officers, but
shot them because he believed he would have been killed if he had not. Id. Mr.
Spencer testified that he could have easily killed Officer Collins as he ran to his car
but did not perceive him as a threat, so he allowed the officer to find cover before
shooting at Officer Collins so that he could escape the scene. Id. Mr. Spencer
testified that both he and Mr. Woods ran to a neighboring house where Mr. Spencer
was found and arrested and, until he moved to hide in the attic, watched television
with the homeowner. Id. Mr. Spencer’s recollection of events ended with hi s
testimony about hiding in the neighbor’s attic until he surrendered to the police. Id.
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On June 19, 2005, Mr. Spencer was convicted of four counts of capital murder
and one count of attempted murder. Id. at 219; Doc. 17-28 at 155–56; see also Ala.
Code §§ 13A –5–40(a)(5), (10); 13A–6–2; 13A–4–2 (1975). Specifically, the jury
found Mr. Spencer guilty of three counts of capital murder for intentionally shooting
and killing the three on-duty Birmingham police officers: Officers Owen, Chisolm,
and Bennett. Doc. 17-28 at 155–56; Spencer I, 58 So. 3d at 219. The jury also found
Mr. Spencer guilty of a fourth capital offense because he committed these three
murders “by one act or pursuant to one scheme or course of conduct.” Spencer I, 58
So. 3d at 219 (citing Ala. Code § 13A–5–40(a)(10) (1975)). The jury also convicted
Mr. Spencer of one count of attempted murder for intentionally shooting at Officer
Collins. Id.
After Mr. Spencer was convicted on all charges, the penalty phase of his trial
began. Id. at 219–20. After opening arguments, the trial court granted the State ’s
motion to incorporate for consideration during the penalty phase all the evidence
presented during the guilt phase of trial. Doc. 17-1 at 110. Using this evidence, the
State presented four aggravating circumstances: (1) the capital offense was
committed to avoid or prevent a lawful arrest or to bring about an escape from police
custody; (2) the capital offense was committed to disrupt or hinder the lawful
exercise of a governmental function or the enforcement of law; (3) Mr. Spencer
knowingly created a great risk of death to many persons; and ( 4) Mr. Spencer
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intentionally caused the death of two or more persons pursuant to one scheme or
course of conduct. Id. In mitigation, defense counsel presented testimony from Mr.
Spencer’s mother and uncle concerning Mr. Spencer’s familial background, his non-
violent character, and his family’s personal pleas for mercy. Id. at 120; Doc. 17-28
at 176–82.
After closing arguments, the trial court charged the jury and dismissed them
for deliberation. Doc. 17-1 at 120–21. The jury deliberated for more than two days
and returned with the recommendation that Mr. Spencer receive a sentence of life
without the possibility of parole on all four capital charges. See Doc. 17-29 at 18–
33; Doc. 17-1 at 121. Specifically, the jury recommended that Mr. Spencer receive
life without parole by a vote of nine for life without parole and three for death for
murdering Officer Owen; by a vote of ten for life without parole and two for death
for murdering Officer Chisolm; and recommended life without the possibility of
parole by a vote of nine for life without parole and three for death for murdering
Officer Bennett. See Spencer I, 58 So. 3d at 219–20; Doc. 17-28 at 33–34. The jury
then recommended by a vote of seven for life without parole and five for death that
Mr. Spencer receive life without parole for intentionally killing two or more
individuals during the same course of conduct. Spencer I, 58 So. 3d at 220.
Pursuant to Alabama law, the trial court conducted a separate sentencing
hearing. Doc. 17-1 at 102, 112. The trial court incorporated for consideration all
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evidence presented during the guilt and penalty phases of trial , and the State and
defense presented additional testimony. Id.
Specifically, the State presented victim -impact testimony from several
witnesses and victim family members. Id. During their testimony, these witnesses
offered their opinions about appropriate punishment. Id. at 112. The State also called
to the stand Belinda Rushton (the custodian of records for the Birmingham
Municipal Court) who identif ied multiple outstanding arrest warrants for Mr.
Spencer from the City of Birmingham that were pending at the time of the murders,
which warrants were admitted into evidence. Id. at 112, 123. The Alabama Board of
Pardons and Parole s prepared a presentence report, which was made a part of the
record. Id. at 112; Doc. 17-3 at 65–82.
To develop evidence about aggravating circumstances, t he State called Fred
Floyd to testify that he (along with five other people, including a child) was at a
nearby barber shop at the time of the shootings. Doc. 17-1 at 122; see Doc. 17-29 at
44–51. Floyd testified that in reaction to the shootings, he grabbed the child and
dropped to the floor of the shop along with the other customers. Doc. 17-1 at 122.
The State also called Priscilla Patrick, who testified that she lived three blocks from
the crime scene. Id. Ms. Patrick testified that she and a friend were walking up the
alley behind the apartments when they heard gunfire and that they ran back to Ms.
Patrick’s residence. Id. at 122–23.
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The State then called Betty Celipsey, whose home is directly behind the back
of the apartment and next door to the church that was struck by one of the bullets
from Mr. Spencer’s rifle. Id. at 123. Ms. Celipsey testified that she was on the phone
with her daughter when she heard the gunshots and went to her back door to look
outside. Id. Ms. Celipsey saw a police officer standing behind a police car, so she
closed her door and called her sister to tell her to lock her doors because “they were
shooting at the police.” Id.
Next, defense counsel called Mr. Spencer, where he apologized to the victims’
families for his actions. Doc. 17-1 at 112. Defense counsel offered several exhibits
in mitigation, including a document prepared by the Alabama Prison Project and Dr.
Allen Shealy’s report on his psychological evaluation of Mr. Spencer. Id. Dr.
Shealy’s report indicated that Mr. Spencer’s IQ was 97 and within the average range
of intelligence in the United States. Id. at 102. The trial court considered all the
evidence before making its sentencing decision. Doc. 17-35 at 10–19; see, e.g., Doc.
17-1 at 102, 126.
On September 23, 2005, the trial court sentenced Mr. Spencer to death for his
capital murder convictions. Doc. 1 at 4; Doc. 17 -1 at 105–06 (Original Sentencing
Order). The trial court explained that the evidence established three statutory
aggravating circumstances because Mr. Spencer (1) “intentionally caused the death
of two or more persons by one act or pursuant to one scheme or course of conduct,”
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Ala. Code § 13A –5–49(9); and because Mr. Spencer committed these capital
offenses (2) “for the purpose of . . . preventing a lawful arrest or effecting an escape
from custody,” Ala. Code § 13A–5–49(5); and, (3) “to disrupt or hinder the lawful
exercise of any government function or the enforcement of laws,” Ala. Code § 13A–
5–49(7). Doc. 17 -1 at 103–04 (Original Sentencing Order); see also Doc. 17 -1 at
124–25 (First Amended Sentencing Order) ; Doc. 17-35 at 2 –3 (Second Amended
Sentencing Order); Doc. 17-35 at 10–11 (Third Amended Sentencing Order).
The trial court found two statutory mitigating circumstances: Mr. Spencer’s
“age at the time of the crime[s]” and his lack of “significant history of prior criminal
activity.” Ala. Code §§ 13A –5–51(7) and (1); Doc. 17- 1 at 12 5–26; Doc. 19 at 7 ;
Doc. 17-35 at 12–13. And the trial court recited non-statutory mitigating evidence,
including Mr. Spencer’s background and the jury’s recommendation of life without
the possibility of parole. Doc. 17-1 at 126; Doc. 17-35 at 5–6; Doc. 17-35 at 13–14.
The trial court weighed the aggravating and mitigating circumstances and found
“beyond a reasonable doubt and to a moral certainty that the aggravating
circumstances outweigh the mitigating circumstances.” Doc. 17-1 at 126; Doc. 17-
35 at 8–9; see Doc. 17-35 at 18–19.
The trial court explained that it assigned great weight to the killing of three
police officers, particularly “in light of the circumstances of [their] murders. . . and
the societal gravity associated with killing law enforcement officers operating within
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their appointed duties of protecting citizens and enforcing the law, ” as recognized
by the legislature in its “provision making such murders capital . . . in contemplation
of the same.” Doc. 17-35 at 18. The trial court overrode the jury’s recommendation
and sentenced Mr. Spencer to death. Doc. 17- 1 at 105 –06, 127; Doc. 17- 35 at 9;
Doc. 17-35 at 19.
B. Procedural History
Mr. Spencer appealed his conviction and death sentence to the Alabama Court
of Criminal Appeals. See Spencer I, 58 So. 3d at 215, 220 . T he appeals court
affirmed Mr. Spencer’s capital convictions but twice remanded the case for the trial
court to clarify its findings about nonstatutory mitigating circumstances and its
decision to override the jury’s sentencing recommendation. Id. at 248–54. The trial
court issued amended sentencing orders on May 15, 2008, and March 30, 2009.2 Id.;
see Doc. 17 -35 at 2 –19. On return from the second remand, the appeals court
affirmed Mr. Spencer’s death sentence and denied rehearing. Spencer I, 58 So. 3d at
215, 259.
Mr. Spencer sought further appellate review. On September 17, 2010, the
Alabama Supreme Court denied certiorari without opinion. Doc. 17-36 at 79. On
June 20, 2011, the United States Supreme Court also denied certiorari; that Court

2 Shortly after the original sentencing order, the trial court issued an amended
scheduling order in October 2005. See generally Doc. 17-1 at 108–27. That amended
sentencing order was before the appeals court.
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denied Mr. Spencer’s application for rehearing on August 15, 2011 . Spencer v.
Alabama, 564 U.S. 1022 (2011); denying reh’g, 564 U.S. 1059.
On September 16, 2011, Mr. Spencer filed a post-conviction petition in the
Circuit Court of Jefferson County (the “ Rule 32 court”) under Alabama Rule of
Criminal Procedure 32. See Doc. 1 at 5; Doc. 17-37 at 169. At the request of defense
counsel, the Rule 32 court twice granted Mr. Spencer leave to amend his petition.
Doc. 1 at 5; see Doc. 17-41 at 43– 44. On August 20, 2012, Mr. Spencer filed his
second amended Rule 32 petition, and, on October 24, 2012 , the State answered.
Doc. 1 at 5; see, e.g., Doc. 17-40 at 13–180; Doc. 17-41 at 46–113. Mr. Spencer also
filed motions for discovery and an evidentiary hearing that the State opposed. See
Doc. 1 at 5; see, e.g., Doc. 17-41 at 119–78.
On July 5, 2013, the Rule 32 court summarily dismissed Mr. Spencer’s second
amended Rule 32 petition and denied Mr. Spencer’s discovery and evidentiary
hearing requests, holding that Mr. Spencer had not met the requirements of Rules
32.2, 32.3, 32.6(b), and 32.7(d) of the Alabama Rules of Criminal Procedure.
Doc. 1 at 6; Doc. 17-37 at 67–149.
On February 6, 2015, the Alabama Court of Criminal Appeals affirmed that
summary dismissal. Spencer v. State , 201 So. 3d 573, 623 (Ala. Crim. App. 2015)
(“Spencer R.32”). The appeals court determined that the claims in Mr. Spencer’s
petition were insufficiently pleaded, did not present a material issue of fact or law,
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or were otherwise procedurally defaulted. Id. at 588–623; see also Rules 32.2, 32.3,
32.6(b), 32.7(d), Ala. R. Crim. P. The appeals court also affirmed the denial of Mr.
Spencer’s requests for an evidentiary hearing and discovery. See generally Spencer
R.32, 201 So. 3d 573 (Ala. Crim. App. 2016); id. at 581–82, 585–86.
Mr. Spencer again sought a writ of certiorari in the Alabama Supreme Court.
Doc. 1 at 6; Doc. 18 at 3. 3 The Alabama Supreme Court denied certiorari without
opinion on February 19, 2016. See Doc. 1 at 6.
On November 21, 2016, Mr. Spencer timely filed his habeas petition in this
court. Doc. 1. The respondent filed his answer and brief on August 21, 2017. Docs.
18, 19. And on November 20, 2017, Mr. Spencer filed his reply. Doc. 21.
II. STANDARD OF REVIEW
This action is governed by 28 U.S.C. § 2254, as amended by the Anti-
Terrorism and Effective Death Penalty Act of 1996 ( “AEDPA”). See Guzman v.
Sec’y, Dep’t of Corr., 663 F.3d 1336, 1345 (11th Cir. 2011).
Under Section 2254(a), a federal district court is prohibited from entertaining
a writ of habeas corpus “in behalf of a person in custody pursuant to the judgment
of a State court ” unless the petition alleges “ he is in custody in violation of the
Constitution or laws or treaties of the United States. ” 28 U.S.C. § 2254(a). Claims

3 Mr. Spencer also requested to supplement this petition because of the intervening
Supreme Court’s decision in Hurst v. Florida, 577 U.S. 92 (2016), which invalidated
Florida’s death-penalty statute concerning judicial override. See Doc. 1 at 6.
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of “an alleged defect in a [state] collateral proceeding” or related to a “state’s
interpretation of its own laws or rules” are not a basis for federal relief under Section
2254. Alston v. Dep ’t of Corr., Fla. , 610 F.3d 1318, 1325– 26 (11th Cir. 2010)
(internal quotation marks and citations omitted).
A. Sections 2254(d) and (e)

AEDPA “imposes a highly deferential standard for evaluating state -court
rulings” and “demands that state-court decisions be given the benefit of the doubt.”
Guzman, 663 F.3d at 1345 (internal quotation marks and citation omitted). To grant
habeas relief, this court must find not only that the constitutional claims are
meritorious, but also that the state court’s resolution of those claims:
(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)(1– 2); see also Boyd v. Allen, 592 F.3d 1274, 1292 (11th Cir.
2010) (quoting Section 2254(d)).
The petitioner bears the burden to establish that a habeas claim triggers
Section 2254(d)(1) or (d)(2). See Woodford v. Visciotti , 537 U.S. 19, 25 (2002).
“[T]he ‘contrary to’ and ‘unreasonable application’ clauses are interpreted as
independent statutory modes of analysis. ” Alderman v. Terry , 468 F.3d 775, 791
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(11th Cir. 2006). A state court’ s decision is contrary to “ clearly established
precedents if it applies a rule that contradicts the governing law set forth in [the
Court’s] cases, or if it confronts a set of facts that is materially indistinguishable
from a decision of th[e] Court but reaches a different result.” Brown v. Payton, 544
U.S. 133, 141 (2005).
On the other hand, to determine whether a state court’ s decision is an
“unreasonable application” of clearly established federal law, “[t]he pivotal question
is whether the state court’s application of the [relevant constitutional] standard was
unreasonable.” Harrington v. Richter , 562 U.S. 86, 101 (2011). “For purposes of
[Section] 2254(d)(1), ‘an unreasonable application of federal law is different from
an incorrect application of federal law.’” Id. (quoting Williams v. Taylor, 529 U.S.
362, 410 (2000)). “A state court must be granted a deference and latitude that are not
in operation when the case involves review under the [relevant constitutional]
standard itself.” Id. “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.” Id. (quoting Yarborough v. Alvarado, 541 U.S. 652,
664 (2004)). “The more general the rule, the more leeway courts have in reaching
outcomes in case -by-case determinations.” Id. (internal quotation marks omitted)
(quoting Yarborough, 541 U.S. at 664).
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Whether a state court’s application of federal law was unreasonable involves
a “substantially higher threshold” than a correctness threshold. Schriro v. Landrigan,
550 U.S. 465, 473 (2007). “Ultimately, before a federal court may grant habeas relief
under [Section] 2254(d), ‘a state prisoner must show that the state court’s ruling on
the claim being presented in federal court was so lacking in justification that there
was an error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement. ’” Guzman, 663 F.3d at 1346 (quoting
Harrington, 562 U.S. at 103). “If this standard is difficult to meet, that is because it
was meant to be. As amended by AEDPA, [Section] 2254(d) stops short of imposing
a complete bar on federal-court relitigation of claims already rejected in state
proceedings.” Harrington, 562 U.S. at 102.
Finally, a state court’s factual determination is presumptively correct under
Section 2254(e)(1). “[T]he petitioner must rebut ‘the presumption of correctness [of
a state court’s factual findings] by clear and convincing evidence. ’” Ward v. Hall,
592 F.3d 1144, 1155–56 (11th Cir. 2010) (alterations in original) (quoting 28 U.S.C.
§ 2254(e)(1)).
Additionally, a habeas petition “must meet [the] heightened pleading
requirements [of] 28 U.S.C. § 2254 Rule 2(c). ” McFarland v. Scott, 512 U.S. 849,
856 (1994). “[T]he petition must ‘specify all the grounds for relief available to the
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petitioner’ and ‘state the facts supporting each ground.’” Mayle v. Felix, 545 U.S.
644, 655 (2005) (quoting Rules Governing § 2254 Cases, Rule 2(c)).
The burden of proof is on the habeas petitioner “to establish his right to habeas
relief” by “prov[ing] all facts necessary to show a constitutional violation. ”
Blankenship v. Hall, 542 F.3d 1253, 1270 (11th Cir. 2008).
B. The Procedural Default Doctrine
Under Section 2254, federal habeas petitioners must exhaust all state
remedies. Cullen v. Pinholster, 563 U.S. 170, 181 (2011). This means that “‘[s]tate
prisoners must give the state courts one full opportunity to resolve any constitutional
issues by invoking one complete round of the State ’s established appellate review
process,’ including review by the state ’s court of last resort, even if review in that
court is discretionary.’” Pruitt v. Jones , 348 F.3d 1355, 1358 –59 (11th Cir. 2003)
(quoting O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)).
“[T]o exhaust state remedies fully the petitioner must make the state court
aware that the claims asserted present federal constitutional issues. ‘It is not enough
that all the facts necessary to support the federal claim were before the state courts
or that a somewhat similar state-law claim was made.’” Snowden v. Singletary, 135
F.3d 732, 735 ( 11th
Cir. 1998) (quoting Anderson v. Harless, 459 U.S. 4, 5 –6
(1982)). “[A]n issue is exhausted if the reasonable reader would understand [ the]
claim’s particular legal basis and specific factual foundation to be the same as it was
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presented in state court.” Pope v. Sec’y for Dep’t of Corr., 680 F.3d 1271, 1286 (11th
Cir. 2012) (alterations in original) (internal quotation marks and citation omitted).
If a petitioner fails to raise his federal claim to the state court at the time and
in the manner dictated by the state’s procedural rules, the state court can decide the
claim is not entitled to a review on the merits. Mason v. Allen, 605 F.3d 1114, 1119
(11th Cir. 2010). A “state court’s rejection of a petitioner’s constitutional claim on
state procedural grounds will generally preclude any subsequent federal habeas
review of that claim. ” Ward, 592 F.3d at 1156. (internal quotation marks omitted)
(quoting Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001)). And “[w]here there
has been one reasoned state judgment rejecting a federal claim, later unexplained
orders upholding that judgement or rejecting the same claim rest upon the same
ground.” Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).
In federal court, “a state court’s rejection of a federal constitutional claim on
procedural grounds may only preclude federal review if the state procedural rul ing
rests upon ‘adequate and independent ’ state grounds. ” Ward, 592 F.3d at 1156
(quoting Marek v. Singletary, 62 F.3d 1295, 1301 (11th Cir. 1995)).
The Eleventh Circuit has created a “three-part test” to determine whether “a
state court’s procedural ruling constitutes an independent and adequate state rule of
decision.” Id. (internal quotation marks omitted) (quoting Judd, 250 F.3d at 1313).
Specifically, the Eleventh Circuit has instructed that a procedural ruling rests on
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“‘adequate and independent’ state grounds” when: (1) the last reasoned state court
judgment in the case “clearly and expressly ’” states the court relies on “state
procedural rules to resolve the federal claim ” and does so “without reaching the
merits of that claim”; (2) when the state court’s decision rests entirely on state law
grounds and is not “intertwined with an interpretation of federal law”; and (3) when
the state procedural rule invoked is “adequate, i.e., firmly established and regularly
followed” which is satisfied when the state rule has not been applied either
“arbitrarily,” or in an “unprecedented ” manner. Id. at 1156–57 (internal quotation
marks omitted).
Sometimes the doctrines of procedural default and exhaustion intertwine. For
instance, if a federal petitioner’s claim is unexhausted, a district court may dismiss
it without prejudice or stay the cause of action to allow the petitioner to avail himself
of his state remedies. See Rose v. Lundy, 455 U.S. 509, 519– 20 (1982). But “if it is
clear from state law that any future attempts at exhaustion [in state court] would be
futile” under the state’s own procedural rules, a court can simply find that the claim
is “procedurally defaulted, even absent a state court determination to that effect. ”
Bailey v. Nagle, 172 F.3d 1299, 1305 (11th Cir. 1999).
The procedural default doctrine is subject to equitable exceptions. “[A]n
adequate and independent finding of procedural default will bar federal habeas
review of the federal claim, unless the habeas petitioner can show cause for the
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default and prejudice attributable thereto[] or demonstrate that failure to consider the
federal claim will result in a fundamental miscarriage of justice. ” Coleman v.
Thompson, 501 U.S. 722, 749 –50 (1991) (internal quotation marks and citation
omitted).
The “cause and prejudice” exception requires a petitioner to prove both cause
and prejudice. Id. at 750. To show cause, a petitioner must prove that “ some
objective factor external to the defense impeded counsel’s efforts” to raise the claim
previously. Murray v. Carrier, 477 U.S. 478, 488 (1986). “ Objective factors that
constitute cause include ‘interference by officials’ that makes compliance with the
State’s procedural rule impracticable, . . . ‘a showing that the factual or legal basis
for a claim was not reasonably available to counsel[,]’” as well as “constitutionally
‘[i]neffective assistance of counsel. ’” McCleskey v. Zant , 499 U.S. 467, 49 3–94
(1991) (quoting Murray, 477 U.S. at 488). “Attorney error short of ineffective
assistance of counsel, however, does not constitute cause and will not excuse a
procedural default.” Id. To show prejudice, a habeas petitioner must evince “ not
merely that the errors . . . created a possibility of prejudice, but that they worked to
his actual and substantial disadvantage, infecting his entire trial with error of
constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982).
Finally, a petitioner may escape a procedural default if he “can demonstrate a
sufficient probability that [this court’s] failure to review his federal claim will result
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in a fundamental miscarriage of justice.” Edwards v. Carpenter, 529 U.S. 446, 451
(2000). To make such a showing, a petitioner must establish that either: (1) “a
constitutional violation has probably resulted in the conviction of one who is actually
innocent,” Smith v. Murray, 477 U.S. 527, 537 (1986) (quoting Carrier, 477 U.S. at
496), or (2) the petitioner shows “by clear and convincing evidence that but for a
constitutional error, no reasonable juror would have found the petitioner eligible for
the death penalty.” Schlup v. Delo , 513 U.S. 298, 323 (1995) (quoting Sawyer v.
Whitley, 505 U.S. 333, 336 (1992)).
C. Burden of Proof and Heightened Pleading Requirements
Federal habeas “exists only to review errors of constitutional dimension. ”
McFarland, 512 U.S. at 861 (O’Connor, J., concurring in part and dissenting in part);
see also 28 U.S.C. § 2254(a). Further, “[w]hen the process of direct review . . . comes
to an end, a presumption of finality and legality attaches to the conviction and
sentence.” Barefoot v. Estelle, 463 U.S. 880, 887 (1983). Two consequences flow
from these rules.
First, the habeas petitioner bears the burden of (1) overcoming the
presumption of “legality” that attaches to the state court conviction and sentence,
and (2) establishing a factual basis to demonstrate that federal postconviction relief
should be granted. See, e.g., 28 U.S.C. §§ 2254(d), (e)(1); Hill v. Linahan, 697 F.2d
1032, 1036 (11th Cir. 1983) (“The burden of proof in a habeas proceeding is always
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on the petitioner.”).
Second, the habeas petitioner must meet “heightened pleading requirements.”
McFarland, 512 U.S. at 856; Borden v. Allen, 646 F.3d 785, 810 (11th Cir. 2011)
(holding that Section 2254 requires “fact pleading, ” and not merely “ notice
pleading”). The mere assertion of a ground for relief, without sufficient factual detail,
does not satisfy the petitioner’s burden of proof under Section 2254(e)(1), nor the
requirements of Rule 2(c) of the Rules Governing Section 2254 Cases in the United
States District Courts. See also 28 U.S.C. § 2242 (stating that an application for
writ of habeas corpus “ shall allege the facts concerning the applicant’ s
commitment or detention”).
A habeas petitioner must include in his statement of each claim supporting
facts sufficient to justify a decision for the petitioner if the alleged facts are proven
true. See, e.g., Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977) ( quoting Advisory
Committee Notes to Rule 4, Rules Governing § 2254 Cases) (observing that a habeas
petition must “state facts that point to a ‘real possibility of constitutional error’”).
D. Claims Dismissed Pursuant to Rules 32.3, 32.6(b), and 32.7(d) of the
Alabama Rules of Criminal Procedure

Rule 32.3 of the Alabama Rules of Criminal Procedure provides:

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
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petitioner shall have the burden of disproving its existence
by a preponderance of the evidence.

Ala. R. Crim. P. 32.3 . Further, Rule 32.6(b) of the Alabama Rules of Criminal
Procedure mandates:
Each claim in the [Rule 32] 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). Finally , Rule 32.7(d) of the Alabama Rules of Criminal
Procedure allows summary disposition of a state habeas petition 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.

Ala. R. Crim. P. 32.7(d).

“A ruling by an Alabama court under Rule 32.6(b) is also a ruling on the
merits.” Borden, 646 F.3d at 812. Under AEDPA, when a claim has been dismissed
by the Alabama Court of Criminal Appeals (“ACCA”) pursuant to Rule 32.6(b),
federal habeas review is limited to an “examin[ation of] the reasonableness of the
[ACCA’s] adjudication of [a petitioner ’s] claims based upon the allegations
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contained in his [Rule 32] Petition. ” Id. at 816–17 (citing Cullen, 563 U.S. at 181)
(“We now hold that review under [Section] 2254(d)(1) is limited to the record that
was before the state court that adjudicated the claim on the merits.”).
Rule 32.6(b) includes a “heightened pleading requirement—fact pleading,” id.
at 810, and “[t]he burden of pleading under Rule 32.3 and Rule 32.6(b) is a heavy
one.” Hyde v. State, 950 So. 2d 344, 356 (Ala. Crim. App. 2006).
“Conclusions unsupported by specific facts will not satisfy the requirements
of Rule 32.3 and Rule 32.6(b).” Id. A petitioner must include “[t]he full factual basis
for the claim” in his Rule 32 state postconviction petition. Id. And if the reviewing
court, after assuming each fact to be true , cannot determine if relief is warranted ,
then the petitioner has not satisfied the burden of pleading under Rule s 32.3 and
32.6(b). Id.
E. Ineffective Assistance of Counsel
“[T] he Constitution guarantees criminal defendants only a fair trial and a
competent attorney. It does not insure that defense counsel will recognize and raise
every conceivable constitutional claim.” Engle v. Isaac, 456 U.S. 107, 134 (1982).
“The benchmark for judging any claim of ineffectiveness must be whether counsel’s
conduct so undermined the proper functioning of the adversarial process that the trial
cannot be relied on as having produced a just result.” Strickland v. Washington, 466
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U.S. 668, 686 (1984). “[T]he ultimate focus of inquiry must be on the fundamental
fairness of the proceeding whose result is being challenged.” Id. at 696.
“Strickland . . . provides the standard for inadequate assistance of counsel
under the Sixth Amendment. ” Premo v. Moore , 562 U.S. 115, 118 (2011). “To
establish ineffective assistance of counsel ‘a defendant must show both deficient
performance by counsel and prejudice.’” Id. at 121 (quoting Knowles v. Mirzayance,
556 U.S. 111, 122 (2009)) . “Surmounting Strickland’s high bar is never an easy
task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010). Strickland recognizes that it is
“all too tempting” to “second-guess counsel’s assistance after conviction or adverse
sentence.” 466 U.S. at 689.
“To establish deficient performance, a person challenging a conviction must
show that counsel’ s representation fell below an objective standard of
reasonableness,” and “[a] court considering a claim of ineffective assistance must
apply a strong presumption that counsel’s representation was within the wide range
of reasonable professional assistance. ” Harrington, 562 U.S. at 104 (quoting
Strickland, 466 U.S. at 688 –89). “The question is whether an attorney ’s
representation amounted to incompetence under ‘prevailing professional norms,’ not
whether it deviated from best practices or most common custom.” Id. at 105 (quoting
Strickland, 466 U.S. at 690). This standard is “highly deferential,” id. (internal
quotes omitted), to the extent that “a petitioner must establish that no competent
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counsel would have taken the action that his counsel did take ,” Chandler v. United
States, 218 F.3d 1305, 1315 (11th Cir. 2000) (en banc).
“To establish prejudice, ‘[t]he defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceedings
would have been different.’” Knowles, 556 U.S. at 127 (quoting Strickland, 466 U.S.
at 694). “A reasonable probability is a probability sufficient to undermine confidence
in the outcome.” Id. (quoting Strickland, 466 U.S. at 694).
“Establishing that a state court’s application of Strickland was unreasonable
under [Section] 2254(d) is all the more difficult.” Harrington, 562 U.S. at 105. This
is because of the interplay between Strickland and Section 2254(d) that results in
“double deference ” on federal habeas review, which “is doubly difficult for a
petitioner to overcome.” Johnson v. Sec’y, Dep’t of Corr., 643 F.3d 907, 911 (11th
Cir. 2011).
“The Strickland standard is a general one, so the range of reasonable
applications is substantial.” Harrington, 562 U.S. at 105. Thus, “[w]hen [Section]
2254(d) applies, the question is not whether counsel’s actions were reasonable[, but]
whether there is any reasonable argument that counsel satisfied Strickland ’s
deferential standard.” Id.
Because Mr. Spencer has “invok[ed] one complete round of [Alabama ’s]
established appellate review process,” he has exhausted his state court remedies as
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required by 28 U.S.C. § 2254(b)(1). O’Sullivan, 526 U.S. at 845; see Smith v. Jones,
256 F.3d 1135, 1141 (11th Cir. 2001); Pruitt, 348 F.3d at 1359. The court explains
below the few instances of procedural default as appropriate.
III. ANALYSIS
A. Ineffective Assistance Of Counsel Claims
Mr. Spencer asserts that he is entitled to habeas relief because his trial counsel
provided ineffective representation during the guilt and sentencing phases of his
trial, and his appellate counsel was ineffective on direct appeal. See Doc. 1 at 6–128;
Doc. 17 -40 at 15– 160. Mr. Spencer asserts fifteen reasons why his counsel was
ineffective during his guilt phase and seven reasons why his counsel was ineffective
at sentencing.
Mr. Spencer presented his ineffectiveness claims to the Rule 32 court in his
second amended Rule 32 petition. See generally Doc. 17-40 at 15–160. That court
dismissed those claims, and Mr. Spencer appealed. See Doc. 17-37 at 67–107; Doc.
17-45 at 33 –160. The Alabama Court of Criminal Appeals affirmed , and Mr.
Spencer now asserts that that affirmance violated Sections 2254(d)(1) and
2254(d)(2). See Spencer R.32, 201 So. 3d 573; Doc. 21 at 11–92.
1. Guilt Phase Ineffectiveness
The court discusses in turn each of the fifteen claims of guilt-phase ineffective
assistance of counsel that Mr. Spencer raises.
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At the outset, the court observes that Mr. Spencer’s habeas petition fails to
properly plead his Strickland claims in accordance with Rule 2(c) of the Rules
Governing Section 2254 Petitions. Specifically, Mr. Spencer does not plead which
subsection of Section 2254 entitles him to habeas relief. See Doc. 1 at 6–128. Instead,
he relies on his reply brief to explain why he believes the state courts’ adjudications
of his Strickland claims violate Section 2254(d). Compare Doc. 1 at 6, with Doc. 21
at 11–92.
Nevertheless, as explained below, Mr. Spencer has failed to demonstrate that
the affirmance of the dismissal of his Rule 32 petition was contrary to, or involved
an unreasonable application of, clearly established Supreme Court precedent. See 28
U.S.C § 2254(d)(1). Nor has Mr. Spencer demonstrated that the ACCA ruling rested
on an unreasonable determination of the facts presented. See id. § 2254(d)(2).
i. Failure To Object to Prejudicial Atmosphere
Mr. Spencer alleges that his trial counsel undermined his right to a fair trial
“by failing to litigate adequately pre- trial motions which sought to prohibit an
institutional effort by the Birmingham Police Department to have uniformed police
officers attend Mr. Spencer’s trial in overwhelming numbers.” Doc. 1 ¶ 23.
In February 2005, Mr. Spencer filed a pretrial motion to preclude law
enforcement officers from wearing their uniforms to watch the trial because such a
presence would create undue influence and pressure on jurors. Id. ¶ 24. The trial
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court denied that motion but commented, “[I]f they bring 150 officers up here and
want to fill up the courtroom, that’ s a different matter. ” Id. (citing Doc. 17 -20 at
156–57).
Approximately two months later, Mr. Spencer filed a nother pretrial motion
after his counsel purportedly obtained an internal Birmingham Police Department
memo describing an “overwhelming police presence” that would fill the courtroom
in addition to a visible presence outside the courthouse during trial. Id. ¶ 25 (quoting
Doc. 17-3 at 30). At the hearing on that motion, the State argued that the memo was
a hoax , while Mr. Spencer ’s trial counsel argued that he had obtained it from a
confidential source with whom he had a recorded conversation. Id. ¶ 26. The case
agent for Mr. Spencer’s trial investigated the memo and “concluded that the memo
was fraudulent based on having asked supervisors at all Birmingham police precincts
whether they had seen, authorized, or disseminated it[.]” Id. The trial court listened
to the recording in camera and declined to preclude the attendance of police
spectators absent evidence the tape was authentic. Id. Mr. Spencer’s trial counsel
stated that he would rather withdraw the motion than reveal his source, settling for
no ruling on the motion. Id.
Mr. Spencer asserts that “[e]ven though the threat in the memo came to
fruition when trial commenced, [ Mr. Spen cer’s] counsel made no other motion,
objection, or comment about the prevalence of police spectators during the trial.” Id.
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¶ 28. He further asserts that “[t] he culpability phase was affected because the
conspicuous presence of hordes of uniformed police told jurors deciding whether
Mr. Spencer was guilty of capital murder . . . two, equally damaging, things — that
he was exceptionally dangerous and guilty.” Id.
According to Mr. Spencer, “[d]uring post-conviction interviews, deliberating
juror, L. Burks, recalled seeing many police officers present in the courtroom for
each day of the trial.” Id. ¶ 29. And “Juror V. Raby recalled that police were present
in the courtroom every day, but packed the courtroom, standing along the courtroom
walls, on the day the jury announced its life recommendation. ” Id. Finally, Mr.
Spencer alleges that “[t]he sentencing phase of [his] trial was also affected because
. . . police presence ensured that the trial court would override the jury ’s life
recommendation.” Id.
Mr. Spencer raised this issue during his Rule 32 proceedings, and the ACCA
wrote:
First, Spencer argues that his trial counsel was ineffective
for failing to ensure that he was not tried in an
“overwhelmingly prejudicial atmosphere. ” (Spencer’s
brief, at 20.) Specifically, Spencer argues that he was
prejudiced by the presence of numerous uniformed police
officers in the courtroom during his trial.

The circuit court stated the following when summarily
dismissing this claim:

“While Spencer sets forth in great detail in the
second amended Rule 32 petition his claim that an
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internal police memorandum was sent out
requesting an overwhelming police presence during
Spencer’s trial, Spencer fails to specifically plead
that this police presence actually occurred during
his trial. All Spencer alleges is that juror [L.B.]
recalled seeing many police officers during trial and
that juror [V.R.] recalled that police were present in
the courtroom every day. Spencer does not set forth
with any specificity the number of officers that were
in the courtroom, whether the officers were in
uniform, or whether the officers were armed.
Spencer has not shown with specificity that the
performance of his attorneys was deficient or that
he was prejudiced by counsel’s conduct.

“Spencer also alleges that the police presence
caused the trial court to override the jury’ s life
without parole jury recommendation. An
evidentiary hearing is not required where the
police presence did not cause this Court to
override the jury’s life without parole sentence
recommendation. In fact, this Court finds that
there was not an overwhelming police presence
in the courtroom during Spencer’s trial.”

(C. 87–88.)

The record of Spencer ’s trial shows that defense counsel
filed a pretrial motion requesting that officers who would
attend the trial as spectators be ordered not to appear in the
courtroom in their uniforms. (Trial C. 352.) The State
responded:

“At this juncture, it is unknown whether or not the
courtroom will be ‘full’ of uniformed officers, as
[Spencer] speculates. Should it become necessary to
diffuse what may appear to be an undue number of
uniformed officers, this Honorable Court has the
discretion to grant [Spencer ’s] motion should it
become necessary to minimize the number of
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uniformed officers in the courtroom at that time or
to disperse them throughout the courtroom should
they be seated as a group.”

(Trial C. 375.) The trial court then ruled:

“I’m not going to tell a uniformed officer who is on
duty that comes up here to listen to the testimony
for some period of time that he cannot come into the
courtroom with his uniform on. I just don ’t think
that would be — now, if they bring 150 officers up
here and want to fill up the courtroom, that ’s a
different matter. As a general rule, I’m not going to
get involved in ordering people they can’t show up
with a uniform on.”

(Trial R. 246–47.)

In the order dismissing Spencer’s postconviction petition,
the circuit judge specifically found that, based on his
personal knowledge of the trial, there had not been an
overwhelming police presence in the courtroom. “A
circuit court may summarily dismiss a Rule 32 petition
without an evidentiary hearing if the judge who rules on
the petition has ‘personal knowledge of the actual facts
underlying the allegations in the petition ’ and ‘states the
reasons for the denial in a written order. ’” Ex parte
Walker, 800 So. 2d 135, 138 (Ala. 2000) (quoting Sheats
v. State, 556 So. 2d 1094, 1095 (Ala. Crim. App. 1989)).

Moreover, the United States Supreme Court in Holbrook
v. Flynn, 475 U.S. 560, 571–72, 106 S. Ct. 1340, 89 L. Ed.
2d 525 (1986), noted the inherent problems that arise when
a “roomful” of armed uniformed guards are in a
courtroom. Later, the Supreme Court in Carey v.
Musladin, 549 U.S. 70, 127 S. Ct. 649, 166 L. Ed. 2d 482
(2006), noted the distinction between the presence of
uniformed guards versus the presence of uniformed
spectators.

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“In contrast to state-sponsored courtroom practices,
the effect on a defendant ’s fair -trial rights of the
spectator conduct to which [the defendant] objects
is an open question in our jurisprudence. This Court
has never addressed a claim that such private-actor
courtroom conduct was so inherently prejudicial
that it deprived a defendant of a fair trial....

“Reflecting the lack of guidance from this
Court, lower courts have diverged widely in
their treatment of defendants’ spectator-conduct
claims.”

549 U.S. at 76 (footnote omitted).

Recently, this Court in Jackson v. State, 169 So. 3d 1 (Ala.
Crim. App. 2010) (opinion on return to remand),
recognized that the presence of a large number of
uniformed spectators may deprive a defendant of a fair
trial. Adopting the analysis used by the United States
Court of Appeals for the Eleventh Circuit in Woods v.
Dugger, 923 F.2d 1454 (11th Cir. 1991), this Court stated:

“Woods v. Dugger was clearly specific to its
circumstances. The case involved the presence of a
large number of uniformed probation officers
following the death of a probation officer. The
Court looked to the record and found that, based on
the extensive pretrial publicity, the voir dire
questioning, as well as the specific circumstances of
the small community involved, the presence of the
uniformed officers had deprived Woods of a fair
trial.

“....

“Here, there is no indication in the record that a
large number of officers were present or of any
prejudicial effect or influence caused by the
presence of any officers. Moreover, there was no
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objection by Jackson as to the presence of the
officers; although this does not preclude review on
appeal, it does weigh against a finding of prejudice.
See Ex parte Jackson, 68 So. 3d 211, 213–14 (Ala.
2010). As previously stated, there was no showing
of undue prejudice caused by pretrial publicity. See
Issue XXXIV. The jury was necessarily aware that
the victims were police officers who were on duty
at the time of the offense. See Centobie v. State, 861
So. 2d 1111, 1127 (Ala. Crim. App. 2001)
(‘Considering the fact that the appellant was
charged with the capital offense of killing a police
officer, along with overpowering, kidnapping, and
beating two law-enforcement officers and shooting
a third officer, we conclude that allowing an
“additional” number of law-enforcement officers to
be seated in the courtroom was not an abuse of the
trial court’s discretion. No plain error occurred in
this regard.’).”

Jackson, 169 So. 3d at 105 (opinion on return to remand).

The State asserted in its answer to Spencer ’s second
amended petition that “Spencer does not set forth facts to
support his claim that there was a prejudicial atmosphere
during his trial nor does Spencer allege that he was
prejudiced by this atmosphere, as is required by Strickland
v. Washington, 466 U.S. 668 (1984).” (C. 860.) This Court
agrees. Not only did Spencer fail to plead how many and
when uniformed officers were present in the courtroom, he
failed to plead how he was prejudiced by the presence of
those uniformed police officers. Spencer failed to plead
facts, such as those discussed in Jackson, that would
entitle him to relief on this claim. Thus, the circuit court
correctly summarily dismissed this claim pursuant to Rule
32.6(b), Ala. R. Crim. P.

Spencer R.32, 201 So. 3d at 587–89.
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Mr. Spencer argues that this “decision was an unreasonable application of
clearly established federal law and an unreasonable factual determination.” Doc. 21
at 1 7. According to Mr. Spencer, “the CCA’s decision was an unreasonable
application because, to state this type of Strickland , claim, Mr. Spencer was only
required to allege that his counsel’s failure to pursue well-founded objections to
violations of his right to a fair trial prejudiced him.” Id. And, Mr. Spencer alleges,
“[g]iven the specificity with which Mr. Spencer asserted the claim, the CCA’s
decision to the contrary was objectively unreasonable.” Id. at 18. Mr. Spencer claims
that he “met his pleading burden, by alleging that, due to counsel’s failure to renew
pre-trial objections, the large number of police officers present during his trial were
intended to and did negatively influence jurors who saw them.” Id. at 17. And he
claims that “he identified two jurors who were so influenced.” Id. So, Mr. Spencer
concludes, “[i]n this case, the CCA’s rejection of Mr. Spencer’s claim was based on
an unreasonable failure to consider the entire record before the court.” Id. at 18.
Mr. Spencer has not established that the ACCA unreasonably interpreted the
law in deciding this issue. In his petition, Mr. Spencer cites Sheppard v. Maxwell,
384 U.S. 333 (1966), Irvin v. Dowd, 366 U.S. 717 (1961), Smith v. Phillips, 455 U.S.
209 (1982), and Rideau v. Louisiana, 373 U.S. 723 (1963), and argues that his trial
was unfair and violated his due process rights, because of the “considerable” media
coverage his case received. See Doc. 1 ¶¶ 47–48. In those cases, defendants were
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denied due process when a trial court failed to protect the defendant from the
prejudicial effects of publicity surrounding the proceedings.4 See Sheppard, 384 U.S.
at 363; Irvin, 366 U.S. at 728–29; Rideau, 373 U.S. at 727. In his reply brief, Mr.
Spencer cites Estelle v. Williams, which recognized that a defendant going to trial in
“identifiable prison clothes” is not automatically a constitutional violation, 425 U.S.
501, 512–13 (1976), Taylor v. Kentucky, which held that a defendant’s due process
rights were infringed when a trial court refused to instruct a jury on the presumption
of innocence, 436 U.S. 478, 490 (1978), and Holbrook v. Flynn, which held that a
defendant had no t carried his burden to establish that the presence of uniformed
officers in a courtroom was “so inherently prejudicial as to pose an unacceptable
threat to defendant’s right to a fair trial” such that the defendant had suffered “actual
prejudice,” 475 U.S. 560, 572 (1986).
The ACCA did not unreasonably interpret these holdings by deferring to the
trial court’s finding, based on his personal knowledge, that “there was not an
overwhelming police presence in the courtroom during [Mr.] Spencer’s trial.”
Spencer R.32, 201 So. 3d at 588 –89. Indeed, the ACCA analysis was properly
focused on whether “the scene presented to jurors . . . was so inherently prejudicial
as to pose an unacceptable threat to defendant’s right to a fair trial,” Holbrook, 475

4 Mr. Spencer also cites the dissenting opinion in Smith v. Phillips , which cannot
support his claim because it is not controlling law. Doc. 1 ¶ 47.
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U.S. at 572, leading that court to find that Mr. Spencer failed to plead facts that could
meet the applicable prejudice standard, Spencer R.32, 201 So. 3d at 589. The ACCA
thus reasonably applied the law by examining the risk of prejudice Mr. Spencer faced
during his trial— it simply concluded that he did not meet his burden.
Nor did the ACCA unreasonably interpret the facts of Mr. Spencer’s case.
After Mr. Spencer’s trial judge found, based on his personal observation of trial, that
“there was not an overwhelming police presence in the courtroom during [Mr.]
Spencer’s trial,” Doc. 17-37 at 89, Mr. Spencer failed to present clear and convincing
evidence to the contrary . Accordingly, the ACCA reasonably relied on th e trial
court’s finding, and Mr. Spencer is due no habeas relief on this claim.
ii. Failure To Object to Victim Impact Clothing and Accessories
Mr. Spencer next contends that his “[t]rial counsel rendered prejudicial
ineffective assistance by failing to object when the family members of the slain
police officers sat in the spectator ’s gallery of the courtroom during Mr. Spencer’s
trial, wearing t-shirts, buttons, and jewelry with screen- printed photographs of the
victims on them .” Doc. 1 ¶ 30; see id. ¶¶ 30 –32. Mr. Spencer alleges that “this
behavior was a daily occurrence during the entire trial and . . . many of these
individuals sat on the front row, [so] their apparel would have been readily apparent
to the jurors.” Id. “It was readily apparent to members of Mr. Spencer’s family who
attended the trial, including Fred and Dianne Pyles and Alicia Spencer. ” Id. Mr.
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Spencer contends that “[b]ecause these visual depictions of the victims, together
with the overwhelming presence of uniformed police spectators . . . , undermined
Mr. Spencer’s right to a fair trial, counsel should have objected. ” Id. And because
the court previously affirmed that it would not allow victim impact clothing and
accessories, Mr. Spencer argues that “the court would have granted the objection
and the outcome of the trial would have been different.” Id. ¶ 31.
The Alabama Court of Criminal Appeals disposed of this claim as follows:
Spencer next argues that his trial counsel was ineffective
for failing to object when members of the victims’
families, during trial, wore items of clothing or buttons
depicting photographs of the deceased officers.

The circuit court stated the following concerning this
claim:

“While Spencer alleges that family members were
wearing items with the victims’ pictures on them,
Spencer does not identify when this actually
occurred during the trial. In addition, once again,
this is a matter within the judge ’s knowledge.
Because this claim is not specifically pleaded and
because this claim is without merit, Spencer ’s
request for an evidentiary hearing on this claim is
denied.”

(C. 89.)

Spencer failed to plead when the alleged instances
occurred or even if they occurred in the courtroom.
Spencer also failed to plead any specific prejudice in
regard to this claim, and he failed to identify any juror who
was prejudiced based on his or her observation of a
spectator’s clothing. Spencer merely pleaded the
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following regarding the prejudice prong of the Strickland
test: “Spencer was prejudiced because, had counsel
objected when these spectator victim impact gestures
occurred, the Court would have granted the objection and
the outcome of [the] trial would have been different. ” (C.
610.) Spencer ’s “bare allegation ” of prejudice was not
sufficient to satisfy the pleading requirements of Rule
32.6(b), Ala. R. Crim. P. Thus, this claim was correctly
summarily dismissed.

Moreover, the record of Spencer ’s trial shows that the
following discussion occurred at the beginning of voir dire
examination:

“The Court: [A]ny buttons T -shirts—I mean I ’ve
had people come up here with T -shirts with the
victims’ pictures on it, slogans and things, none of
that is going to be allowed in the courtroom....

“[Defense counsel]: Your Honor has ruled to
preclude the T-shirts and the badges?

“The Court: Yes.”

(Trial R. 246–47.) The trial court specifically held that any
clothing or buttons bearing the victims’ pictures would not
be allowed in the courtroom.

This claim was correctly summarily dismissed because it
was insufficiently pleaded and because it failed to state a
material issue of fact or law that would entitle Spencer to
relief. See Rule 32.6(b), Ala. R. Crim. P., and Rule
32.7(d), Ala. R. Crim. P.

Spencer R.32, 201 So. 3d at 589–90. Moreover, that court observed that before trial
began, the “[t]rial court specifically held that any clothing or buttons bearing the
victims’ pictures would not be allowed in the courtroom.” Id.
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According to Mr. Spencer, the ACCA “decision [was] contrary to clearly
established law, objectively unreasonable, and an unreasonable determination of the
facts.” Doc. 21 at 20. Mr. Spencer contends that th e appeals court ’s conclusion is
mistaken because the family members at issue consistently sat near the front of the
gallery throughout trial and were visible to jurors. Id. at 22–23. And according to
Mr. Spencer, “[h]aving pled that the victim -focused garb posed such an inherent
‘unacceptable risk’ because jurors could see it, Mr. Spencer was not obligated to
establish which ones did.” Id. at 21. So, Mr. Spencer contends, “in requiring Mr.
Spencer to plead actual prejudice, Alabama failed to apply the relevant legal rules in
deciding this claim or to apply those rules to the facts, making its decision contrary
to and an unreasonable application of clearly established law.” Id. at 22. Finally,
according to Mr. Spencer, “[t]he CCA also chose to ignore most of the evidence
upon which the claim relied, making its decision an unreasonable determination of
the facts.” Id. The ACCA allegedly ignored Mr. Spencer’s allegations that
“spectators wearing victim-impact paraphernalia ‘sat in the spectator’s gallery of the
courtroom during Mr. Spencer’s trial,’ that media coverage of the trial featured
photographs of these spectators, and that ‘[s]ince this behavior was a daily
occurrence during the entire trial and because many of these individuals sat on the
front row, their apparel would have been readily apparent to jurors.’” Id. (alteration
in original) (quoting Doc. 17-40 at 22).
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But Mr. Spencer neither argues nor establishes that the jury was influenced,
let alone coerced, by victims’ family members’ displays. And even he acknowledges
the legal deficiency of these allegations. See, e.g. , Doc. 21 at 20 ( “Granted, the
Supreme Court has not squarely addressed whether spectator conduct can violate a
defendant’s right to a fair trial. ”). Indeed, the Supreme Court confronted this issue
in a similar case and said:
In this case, a state court held that buttons displaying the
victim’s image worn by the victim ’s family during
respondent’s trial did not deny respondent his right to a
fair trial. We must decide whether that holding was
contrary to or an unreasonable application of clearly
established federal law, as determined by this Court. 28
U.S.C. § 2254(d)(1). We hold that it was not.

Carey v. Musladin, 549 U.S. 70, 72 (2006).
Further, the ACCA ruling was not unreasonable on the facts before it . The
trial court found Mr. Spencer’s claim in this respect was “without merit” because the
trial court’s factual determination was “within the judge’s knowledge ” after that
judge presid ed over Mr. Spencer’s trial. Spencer R.32, 201 So. 3d at 590 . Mr.
Spencer offered no evidence, let alone clear and convincing evidence, to rebut these
factual findings. See Ward, 592 F.3d at 1155 –56; see also 28 U.S.C. § 2254(e)(1).
Although Mr. Spencer asserts “that media coverage of the trial featured photographs
of . . . spectators,” Doc. 21 at 22, Mr. Spencer has not attached those photographs to
his petition as evidence, nor has he provided the court other evidence of the media
Case 2:16-cv-01877-AMM Document 31 Filed 04/01/26 Page 52 of 218

coverage he describes. Accordingly, he cannot establish that the state court’s factual
findings were incorrect, let alone unreasonable, and he is due no habeas relief on this
claim.
iii. Counsel’s Pretrial Commentary To Local Media
Mr. Spencer next contends that trial counsel’s commentary to local media in
the days just prior to trial prejudiced his right to an impartial jury and infringed on
his right to decide for himself whether to testify. See Doc. 1 ¶¶ 33–44. According to
Mr. Spencer, those comments included statements that Mr. Spencer would utilize a
self-defense strategy and testify at trial. Id. ¶¶ 33–34. The attorneys “detailed [their]
defense strategy[,]” which was to raise arguments about police corruption and self-
defense, including with Mr. Spencer’s testimony. Id. ¶ 34. Mr. Spencer contends that
“[c]ounsel rendered deficient performance in announcing prior to trial that Mr.
Spencer would testify, because the announcement foreclosed Mr. Spencer from
making his own decision and also locked counsel into an ill -fated self -defense
strategy that could not be proven solely with Mr. Spencer ’s testimony,” id. ¶ 41,
leading to the prosecution ’s “devastatingly effective ” cross-examination of Mr.
Spencer, id. ¶ 44.
After trial counsel made these comments to local media, the trial court held a
hearing on the State ’s motion for a gag order. The trial court granted that motion,
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though Mr. Spencer ’s counsel “asserted that the comments in the media were
intended ‘to even the playing field,’ and not to influence the jury.” Id. ¶¶ 33–35.
Mr. Spencer argues that “ jurors who deliberated on [his] case were exposed
to media about counsel ’s . . . statements. ” Id. ¶ 39. According to Mr. Spencer, t he
jury foreperson stated that he read The Birmingham News (where the attorneys ’
statements were published) and that he knew “[t]he shooter said it was self-defense.”
Id. “Thus,” Mr. Spencer says, “ once counsel made the decision for [him] in the
media, there could be no retreat from either the self-defense strategy or Mr. Spencer
being forced to take the witness stand.” Id. ¶ 40.
When the Alabama Court of Criminal Appeals rejected this claim, it wrote:
Spencer next argues that his “ trial counsel unreasonably
contributed to the prejudicial atmosphere which pervaded
his trial and, in doing so, undermined his ability to decide
for himself whether to testify. ” (Spencer’s brief, at 24.)
Specifically, Spencer pleaded that his attorney informed
the media before trial that Spencer was going to plead self-
defense and that this comment prejudiced the prospective
jurors.

The circuit court stated the following concerning this
claim:

“While Spencer alleges that the jury foreman
responded to a question on the jury questionnaire
that he had heard or read that Spencer had killed
three officers and that he said it was self -defense,
there is nothing that indicates he heard this from
Spencer’s attorney the weekend before the trial.
Moreover, there is no indication that any potential
juror was tainted by defense counsel’s statements
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prior to trial or that they were aware that Spencer
would actually take the stand and testify in his case.
Moreover, it is clear from the record that counsel
made the strategic decision to argue that Spencer
acted in self-defense and knew that Spencer woul d
have to testify to present this defense. This defense
was consistent with Spencer ’s statement to the
police that he was acting in self -defense when he
shot the officers. Further, Spencer has not plead[ed]
how the outcome of his trial would have been
different had counsel not told the media that
Spencer would testify in support of claims that he
was acting in self -defense. The evidence was
overwhelming that Spencer shot and killed the three
officers, including the fact that Spencer confessed
to shooting Officer Carlos Owen, Officer Harley
Chisolm, and Officer Rob Bennett.

“Not only is this claim insufficiently pleaded, it also
fails to present a material issue or fact of law. Rule
32.7(d), Ala. R. Crim. P.”

(C. 89–90.)

Spencer failed to plead that any specific juror was
prejudiced based on counsel’ s pretrial comments —he
merely pleaded that jurors “were aware ” of the media
coverage. Spencer made a general claim of prejudice;
therefore, this claim was correctly summarily dismissed
because it was insufficiently pleaded. See Rule 32.6(b),
Ala. R. Crim. P.
Spencer R.32, 201 So. 3d at 590–91.
In his reply in support of his habeas petition, Mr. Spencer contends that this
the ACCA “required [him] to allege more than relevant precedent requires to
establish actual or inherent prejudice.” Doc. 21 at 24. And, according to Mr. Spencer,
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that court “ignored substantial evidence which tended to show that [he] was
prejudiced by his counsel’s statements to the media in at least two ways – the
prejudicial impact on the jury and forcing his right to testify decision – which
deprived him of a fair trial.” Id. at 25. Mr. Spencer points to statements from the jury
foreman, who responded to the jury questionnaire by stating that he generally knew
about the murders and that “[t]he shooter said it was self -defense.” Doc. 1 ¶ 39
(quoting Doc. 17-18 at 125).
But the foreman’s response does not indicate the source of his knowledge, so
it would have been speculative for the ACCA to assume that it was Mr. Spencer’s
attorney. More importantly, the foreman’s questionnaire responses do not indicate
that whatever he heard affected his ability to render a fair and impartial verdict. See
Doc. 17-18 at 125. Mr. Spencer’s conjecture in this regard is not a basis for habeas
relief.
Mr. Spencer also points to other comments made by potential jurors as
evidence of prevalent media coverage. Doc. 1 ¶ 38. But this falls far short of the
legal standard. Mr. Spencer has not established that any juror who saw media
coverage carried a fixed view of Mr. Spencer’s guilt into the jury room. Federal law
does not require that jur ors have no outside knowledge that a particular crime
occurred; it requires only that they follow the court’s instructions to render a verdict
based solely on the evidence at trial. Irvin, 366 U.S. at 722–23 (“In these days [(the
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year 1961)] of swift, widespread, and diverse methods of communication, an
important case can be expected to arouse the interest of the public . . . , and scarcely
any of those best qualified to serve as jurors will not have formed some impression
or opinion as to the merits of the case. . . . It is sufficient if the juror can lay aside his
impression or opinion and render a verdict based on the evidence presented in
court.”); see Heath v. Jones, 941 F.2d 1126, 1135 (11th Cir. 1991).
Further, any potential juror who indicated potential bias during voir dire was
separately questioned. Doc. 17- 22 at 56 –80. And one prospective juror who
indicated biases they could not set aside was struck for cause at the request of Mr.
Spencer’s attorney. Id. at 70–71. Accordingly, the record establishes no prejudice in
connection with how Mr. Spencer’s trial counsel addressed the media, and the court
certainly cannot conclude that this is one of the “‘extreme’ cases” of inherent
prejudice, see Woods v. Dugger, 923 F.2d 1454, 1459 (11th Cir. 1991).
5
Mr. Spencer has thus failed to establish that the state court’s determination of
this issue was contrary to or involved an unreasonable application of clearly
established federal law or was based on an unreasonable factual determination.

5 Mr. Spencer also cites Rock v. Ark ansas, 483 U.S. 44 (1987), to support his
argument that he was deprived of his right to choose whether to testify on his own
behalf. Doc. 21 at 24. But Rock held that an Arkansas rule of evidence “excluding
all posthypnosis testimony infringes impermissibly on the right of a defendant to
testify on his own behalf.” 483 U.S. at 62. That holding is plainly inapplicable here,
where no Alabama rule, evidentiary or otherwise, prohibited Mr. Spencer from
choosing to testify.
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iv. Failure To Move For Change In Venue
Mr. Spencer next argues that his trial counsel was ineffective for failing to
move for a change of venue even though “defense counsel knew the media coverage
of the trial would be considerable. ” See Doc. 1 ¶ 48. Specifically, Mr. Spencer
alleges that his “trial was the subject of inaccurate, prejudicial, saturation media
coverage, violating his constitutional rights to a fair trial by a fair and impartial jury
under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments.” Id. ¶ 67.
Mr. Spencer asserts that “[i]n all, potential jurors were exposed to over 60
newspaper reports concerning the case . . . , as well as additional coverage by
television and radio news stations.” Id. ¶ 64. He further asserts that “[t]he community
was saturated with victim impact evidence, graphic and prejudicial details of the
shootings, and specific ‘facts’ to be presented at trial, many of which were later
shown to be false or were never presented. ” Id. And he contends that his counsel
recognized the widespread impact of the news, “[m]oving for sequestration of the
jury[.]” Id. ¶ 48. Mr. Spencer details the various media that “saturat[ed] ” the
community. See id. ¶¶ 52–63. “Despite having seen the media coverage themselves,
to the point that they felt the need to ‘even the playing field,’ despite being warned
by the trial court of the extent of the media coverage, and despite nearly every single
juror having seen, read or heard media reports of the case, defense counsel never
moved for a change of venue.” Id. ¶ 50.
Case 2:16-cv-01877-AMM Document 31 Filed 04/01/26 Page 58 of 218

In his reply, Mr. Spencer contends that “voir dire in this case did not consist
of the careful inquiry necessary to ensure” that his jury was impartial. Doc. 21 at 30.
He alleges that even though “12 of the 14 jurors (including alternates) selected had
read, seen or heard media reports[,] . . . [o]nly one of the 12 — V. Raby — was
individually questioned as to what she had seen, read or heard about the case.” Id.
When the Alabama Court of Criminal Appeals upheld the Rule 32 court ’s
rejection of this claim, it wrote:
Spencer next argues that his trial counsel was ineffective
for failing to move for a change of venue. Specifically,
Spencer argues that the media coverage surrounding the
case saturated the community to such an extent that
prejudice was presumed and that his trial counsel was
ineffective for failing to move for a change of venue.

The circuit court stated the following concerning this
claim:

“While it is true that Spencer sets forth dates of
newspaper articles and quotes from some of these
articles, none of the quotes show that the articles
were not correct factually or that the articles were
sensational. In addition, Spencer has not set forth
with any specificity that an actual or identifiable
prejudice occurred in his jury. Of the five jurors
who were questioned during voir dire about the
publicity, only one had a fixed opinion about
Spencer’s guilt and this juror was successfully
challenged for cause. Spencer has not plead[ed] in
his second amended Rule 32 petition that a pattern
of deep and bitter prejudice existed in the
community due to the pre -trial publicity or that
there was a connection between the publicity
generated and the existence of actual jury prejudice.
Case 2:16-cv-01877-AMM Document 31 Filed 04/01/26 Page 59 of 218

Spurgeon v. State, 560 So. 2d 1116 (Ala. Crim.
App. 1989); Brooks v. State, 520 So. 2d 195 (Ala.
Crim. App. 1987). In fact, Spencer has not
identified one juror who was prejudiced by the pre-
trial publicity.”

(C. 90–91.)

This claim was correctly summarily dismissed because
Spencer failed to plead how he was prejudiced; i.e., he
failed to identify any juror who was biased based on the
pretrial publicity. See Moody v. State, 95 So. 3d 827, 845
(Ala. Crim. App. 2012). As this Court recently stated when
reviewing a similar claim:

“Although Mashburn made a bare allegation that
there were ‘numerous’ newspaper articles regarding
the crimes and the trial, he failed to plead any facts
regarding the nature of the articles that would
indicate that the articles were biased or prejudicial.
He also asserted that the newspaper articles
‘saturated the community with information, ’ but
failed to allege any specific facts in support of this
conclusory statement. In addition, Mashburn made
a bare assertion that ‘a majority’ of the venire had
heard about the case, but he failed to allege how
many prospective jurors had actually heard about
the case and he did not identify a single juror who
sat on his jury who had read or heard about the case.
Contrary to Mashburn’s contention, ‘the existence
of widespread publicity does not require a change
of venue.’ McGahee v. State, 885 So. 2d 191, 211
(Ala. Crim. App. 2003). Because Mashburn failed
to allege sufficient facts in his petition indicating a
reasonable probability that a change of venue would
have been granted had counsel filed a motion
requesting a change of venue, he failed to plead
sufficient facts indicating that his trial counsel were
ineffective for not moving for a change of venue.
Case 2:16-cv-01877-AMM Document 31 Filed 04/01/26 Page 60 of 218

Therefore, summary dismissal of this claim of
ineffective assistance of counsel was proper.”

Mashburn v. State, 148 So. 3d 1094, 1129–30 (Ala. Crim.
App. 2013). “This fact—that the circuit judge had personal
knowledge of the answers the veniremembers gave during
voir dire regarding media exposure —also supports the
circuit court’s summary dismissal of this claim.” Yeomans
v. State, 195 So. 3d 1018, 1033 (Ala. Crim. App. 2013).

Furthermore, in Luong v. State, 199 So. 3d 139 (Ala.
2014), the Alabama Supreme Court addressed Luong ’s
claim that prejudice was presumed because the community
was saturated with pretrial publicity surrounding the
murder of Luong’ s four children. The Supreme Court
noted the high threshold that is necessary to satisfy the
“presumed prejudice” standard. The Court stated, in part:

“[T]he record in this case does not establish that bias
and prejudice permeated the Mobile community at
the time of Luong’s trial. Although the facts
surrounding the offenses in this case are
inflammatory, no evidence indicates that the
community demanded Luong ’s arrest or that an
underlying bias against Luong existed at the time of
trial.”

199 So. 3d at 150.

Here, Spencer pleaded the following in regard to this
claim:

“From the day of the shootings, Jefferson County
media outlets extensively covered this case. Mr.
Spencer’s arrest was covered on live television, his
confession was made public, as was every step of
counsel’s preparation for trial. Given the limits
placed on the undersigned ’s ability to subpoena
materials until this petition is filed, there is no way
of knowing the exact extent of television and radio
Case 2:16-cv-01877-AMM Document 31 Filed 04/01/26 Page 61 of 218

coverage of the case. However, the print -media
coverage is indicative of the massive coverage. A
single newspaper, The Birmingham News, carried
innumerable stories on Mr. Spencer’s case, from the
date of the shootings on June 17, 2004, to the start
of trial on June 13, 2005. The media coverage as a
whole carried lurid details about the case, long
before any juror heard evidence in court, presented
critical pieces of information bef ore the court was
in a position to rule on admissibility, exposed
potential jurors to both parties’ cases before jurors
were selected, and forced the defense into making a
series of statements ‘to even the playing field ’
which framed their entire case before the jury was
even empaneled.”

(C. 187–88.)

Because Spencer did not plead sufficient facts to show that
he would have been entitled to a change of venue he failed
to plead the “full facts” that would entitle him to relief. See
Rule 32.6(b), Ala. R. Crim. P., and Ex parte Beckworth,
supra. Therefore, this claim was correctly summarily
dismissed. See Rule 32.7(d), Ala. R. Crim. P.

Spencer, R.32, 201 So. 3d at 591–92.
Mr. Spencer now asserts that “[c]ontrary to what the [ACCA] held, no clearly
established Supreme Court precedent requires a petitioner to establish a specific
juror was biased to make out a presumed prejudice claim. ” Doc. 21 at 28. In other
words, Mr. Spencer appears to suggest that the ACCA applied the actual prejudice
standard to a presumed prejudice claim. The record refutes this suggestion: the
appeals court clearly understood and applied the correct legal standard for a
presumed prejudice claim. Mr. Spencer also contends that the ACCA “decision is an
Case 2:16-cv-01877-AMM Document 31 Filed 04/01/26 Page 62 of 218

unreasonable determination of the facts in the state record because it refused to
consider Mr. Spencer’s evidence about presumed prejudice, absent evidence of
actual juror bias.” Id. at 30.
The origins of the presumed prejudice standard are found in Rideau v.
Louisiana, a Supreme Court case from 1963 in which the Court held that due process
requires a trial court to grant a defendant’ s motion for a change of venue if
prejudicial pretrial publicity preclude s seating an impartial jury. See 373 U.S. at
726–27. In that case, Wilbert Rideau’ s confession to multiple crimes, including
murder, was broadcast three times on television stations across the Lake Charles,
Louisiana area. Id. at 724. The Court held that this rendered any trial in the Lake
Charles area “a hollow formality” and violative of Mr. Rideau’s due process rights.
Id. at 726. Today, the standard for a presumed prejudice claim is: “where a petitioner
adduces evidence of inflammatory, prejudicial pretrial publicity that so pervades or
saturates the community as to render virtually impossible a fair trial by an impartial
jury drawn from that community, ‘(jury) prejudice is presumed and there is no
further duty to establish bias. ’” Mayola v. Ala bama, 623 F.2d 992, 997 (5th Cir.
1980)
6 (quoting United States v. Capo, 595 F.2d 1086, 1090 (5th Cir. 1979)).

6 Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) ( “We hold that
the decisions of the United States Court of Appeals for the Fifth Circuit . . . , as that
court existed on September 30, 1981, handed down by that court prior to the close
of business on that date, shall be binding as precedent in the Eleventh Circuit, for
this court, the district courts, and the bankruptcy courts in the circuit.”).
Case 2:16-cv-01877-AMM Document 31 Filed 04/01/26 Page 63 of 218

As the old Fifth Circuit explained, this standard is demanding:
To satisfy his burden even in such sensational cases, the
petitioner must, therefore, demonstrate that the populace
from which his jury was drawn was widely infected by a
prejudice apart from mere familiarity with the case.
Where, as here, the petitioner r elies solely upon the
inflammatory details and tenor of particular newspaper
articles as the seeds of that prejudice, he must evince some
indication of the ambit of the dissemination of this
poisonous palaver. Without such, no measure of the taint
alleged to have derived from it can be deduced, and
certainly the pervasive prejudice required to trigger
Rideau will not have been proved.

Mayola, 623 F.2d at 999.
The ACCA carefully applied the controlling standard to its analysis. See
Spencer R.32, 201 So. 3d at 591–92. For instance, the ACCA found that Mr. Spencer
had “merely pleaded” that an objection to prejudicial victim impact clothing would
have resulted in a different result in his case and concluded that his petition was a
“bare” conclusory allegation that did not entitle him to relief. Id. at 590. Implicit in
that finding is a determination that Mr. Spencer’s pleadings fall far short of alleging
a “poisonous palaver,” Mayola, 623 F.2d at 999, and do not allege that Mr. Spencer’s
trial was just a “hollow formality,” Rideau, 373 U.S. at 726.
The ACCA likewise upheld the dismissal of Mr. Spencer’s venue arguments,
finding that his petition “failed to identify any juror who was biased based on the
pretrial publicity.” Spencer R.32, 201 So. 3d at 591. The ACCA relied in part on the
fact that the trial court had personal knowledge of the venire and their respective
Case 2:16-cv-01877-AMM Document 31 Filed 04/01/26 Page 64 of 218

dispositions during voir dire and concluded that the facts pled by Mr. Spencer fell
far short of suggesting an irredeemably prejudiced jury. See id. at 591–92.
This court cannot say that the ACCA’s application of the prejudice standards
“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.” 28 U.S.C. § 2254(d) (1). Indeed, the ACCA correctly analyzed
whether Mr. Spencer’s petition pled that his jury was incapable of rendering a fair
verdict in his case, which it did not, and it dismissed his claim on that ground. Nor
was the state court’ s determination of this issue “based on an unreasonable
determination of the facts in light of the evidence presented in State court
proceedings.” Id. § 2254(d)(2). T he potential jurors who indicated that they had
formed opinions about the case based on information they received from the media
were either (1) struck for cause, Doc. 17-21 at 135–368; Doc. 17-22 at 70–71, or (2)
clarified that they could follow the court’s instructions, id. at 56–80. So even if the
court had presumed prejudice because of the publicity surrounding this case, that
prejudice was cured because the jurors in Mr. Spencer’s case pledged to follow the
law as the court explained it to them. Accordingly, Mr. Spencer is due no relief on
this claim.
Case 2:16-cv-01877-AMM Document 31 Filed 04/01/26 Page 65 of 218

v. Failure To Conduct Adequate Voir Dire
Next, Mr. Spencer contends that his trial counsel was ineffective during voir
dire. Doc. 1 at 30.
a. Failure to object to venire members seeing Mr. Spencer in
handcuffs
Mr. Spencer argues that his counsel was ineffective during voir dire because
“counsel failed to articulate legal arguments detailing the prejudice inherent in
restraining a defendant or in allowing the jurors to see him in restraints. ” Id. ¶ 68.
Mr. Spencer alleges that he “remained in handcuffs, which were visible to the jury,
for the duration of group and individual voir dire. ” Id. More particularly, Mr.
Spencer alleges that he “sat in a chair, in handcuffs, throughout the entire voir dire
process with an officer standing beside him. He was not sitting behind a desk, a table,
or anything else that would have obstructed the venire ’s view of him. ” Id. Mr.
Spencer contends that the failure to object “undercut the presumption of innocence
and made him appear exceptionally dangerous.” Id. ¶ 70.
The ACCA addressed the claim as follows:
First, Spencer argues that his trial counsel was ineffective
for failing to object when venire members “were likely to
see Mr. Spencer being escorted out . . . handcuffed and
possibly shackled.” (C. 195) (emphasis added).

The circuit court made the following findings concerning
this claim:

Case 2:16-cv-01877-AMM Document 31 Filed 04/01/26 Page 66 of 218

“Spencer does not allege or specify that any person
who actually served on his jury saw him in
handcuffs. This Court took great pains to ensure that
[Spencer] was not seen by potential jurors during
the trial and during jury selection. [Spencer] was
brought to the Courtroom each day by a jail elevator
which opens to a small holding room where the
shackles were removed prior to [Spencer] entering
the Courtroom. The door from the holding area
looks just like any other door in the courtroom so
the jury doesn’t know where it leads to. This claim
is not sufficiently pleaded, therefore, Spencer ’s
request for an evidentiary hearing on this claim is
denied.”

(C. 91–92.)

Spencer made only a bare claim of “possible prejudice”
and failed to plead sufficient facts regarding the prejudice
prong of the Strickland test— he failed to identify any
jurors who observed him in handcuffs. See Rule 32.6(b),
Ala. R. Crim. P. This claim was correctly summarily
dismissed pursuant to Rule 32.6(b), Ala. R. Crim. P.

Spencer R.32, 201 So. 3d at 593.
As an initial matter, this recitation of the facts is at odds with the above -
described allegations in Mr. Spencer’s habeas petition. Compare Doc. 17-40 at 41–
42 and Doc. 1 ¶ 68, with Spencer R.32, 201 So. 3d at 593. This court presumes the
facts found in the state court proceedings are true. See Boyd, 592 F.3d at 1292
(quoting 28 U.S.C. § 2254(e)(1)).
And on its deferential AEDPA review, the court cannot say that the ACCA
ruling was based on an unreasonable interpretation of the facts, for two reasons.
Case 2:16-cv-01877-AMM Document 31 Filed 04/01/26 Page 67 of 218

First, Mr. Spencer’s counsel did, in fact, object to members of the venire potentially
seeing him in handcuffs:
Mr. Boudreaux: I have a concern. Some of these jurors
may or may not — are you going to keep the doors locked?

The Court: No. The doors will be open.

Mr. Boudreaux: What if some of the jurors come back at
1 and the defendant is coming out of the jail door?

The Court: What do you want me to make them do?

Mr. Barber [the prosecutor]: Just take the handcuffs off.

The Court: They know he’s in jail anyway. Just like she
said she’s followed this case, they’d have to be morons or
living on another planet not to know he’s in custody.
Besides they don’t know what’s through that door. I just
don’t want 70 people congregating out there in the hall.

. . .

Mr. Boudreaux: I guess just please use caution in the
handling of Mr. Spencer.

The Court: Use as much caution as you can given the
physical limitations of this building.

The Bailiff: Yes, Sir.
Doc. 17-21 at 140–41.
Second, Mr. Spencer cannot establish that even if some potential jurors saw
him in restraints during voir dire, that visual prejudiced him at trial, for the reasons
stated by the trial court on the record. Numerous potential jurors stated during voir
Case 2:16-cv-01877-AMM Document 31 Filed 04/01/26 Page 68 of 218

dire that they had heard at least something about Mr. Spencer’s case, meaning they
may have known (or inferred or expected) that he was in custody. Id. at 164. And
during trial, Mr. Spencer confessed to the murders, which would have aligned with
that knowledge, or those inferences or expectations. Doc. 17- 27 at 188 –93.
Accordingly, the court sees no factual basis for habeas relief on Mr. Spencer’s claim
that his counsel was ineffective in connection with the possibility that potential
jurors might have observed him in restraints.
Further, Mr. Spencer argues that the ACCA unreasonably interpreted Deck v.
Missouri, 544 U.S. 622, 626 (2005), when it denied his petition on this ground. See
Doc. 1 ¶¶ 69–70. In Deck, the Supreme Court held that due process “prohibit[s] the
use of physical restraints visible to the jury absent a trial court determination, in the
exercise of its discretion, that they are justified by a state interest specific to a
particular trial.” 544 U.S. at 629. The Deck Court reversed a state court conviction
where the defendant was visibly shackled during voir dire and during sentencing.
See id. at 624–25, 634–35.
Here, t he ACCA did not unreasonably interpret Deck because it correctly
understood that Mr. Spencer’s allegations were that potential jurors likely saw him
in shackles during voir dire . See Spencer R.32, 201 So. 3d at 593. Deck did not
address a likelihood allegation. Deck, 544 U.S. at 624 –25. Therefore, this court
cannot say that the ACCA unreasonably interpreted Deck.
Case 2:16-cv-01877-AMM Document 31 Filed 04/01/26 Page 69 of 218

b. Failure to elicit complete responses during voir dire
Mr. Spencer next contends that trial counsel was ineffective during voir dire
“because their questioning was inadequate to elicit the types of responses from
venire members that would allow the selection of a fair and impartial jury. ”
Doc. 1 ¶ 71. Specifically, Mr. Spencer asserts that trial counsel “failed to adequately
question jurors about the interracial nature of this crime, and any resulting bias,
questions that they were entitled to ask under the law,” and that “there was discussion
from white jurors wanting to impose the death penalty because Mr. Spencer was a
black man who killed three white police officers. ” Id. ¶ 72. Mr. Spencer does not
specifically identify the jurors who had this discussion. See id. But , he says that
according to one juror, “even prior to deliberations, racial tension regarding the death
penalty was immediately evident.” Id. He asserts that “[w]ithin the first few days of
trial, some white jurors started talking about imposing the death penalty whenever
they went back to the jury room.” Id. Mr. Spencer contends that “failure to conduct
voir dire on racial bias resulted in [these] racially -charged deliberations which
directly contributed to a guilty verdict.” Id.
The ACCA addressed this issue, writing:
Spencer argues that his trial counsel was ineffective during
voir dire because counsel failed to inquire into a discussion
among three prospective jurors concerning Spencer’ s
guilt.

Case 2:16-cv-01877-AMM Document 31 Filed 04/01/26 Page 70 of 218

The circuit court stated the following concerning this
claim:

“While Spencer identifies a juror who recalls a
discussion between white jurors who wanted to
impose the death penalty because Spencer killed
three white police officers, he does not identify the
jurors who were engaged in this conversation. In
addition, Spencer does not identify specifically how
this alleged bias changed the outcome of the guilt
phase of his trial. This is especially necessary where
the evidence of Spencer ’s guilt is overwhelming
and where Spencer has not specifically plead[ed]
how he was prejudiced by his attorney’ s failure to
question potential jurors about racial bias. Because
this claim is not specifically pleaded, Spencer’ s
request for an evidentiary hearing on this claim is
denied.”

(C. 92.)

When pleading a claim that a prospective juror was biased,
the petitioner must plead the identity of the allegedly
biased prospective juror.

“The circuit court correctly summarily dismissed
this claim because Washington failed to identify
specific jurors by name; he failed to plead what
should have been done during voir dire
examination; and he failed to plead how he was
prejudiced by counsel’ s performance during the
voir dire examination. See Rule 32.6(b), Ala. R.
Crim. P.”

Washington v. State , 95 So. 3d 26, 64 (Ala. Crim. App.
2012).

Spencer failed to plead the identity of the allegedly biased
prospective jurors; therefore, according to Washington,
this claim was correctly summarily dismissed because
Case 2:16-cv-01877-AMM Document 31 Filed 04/01/26 Page 71 of 218

Spencer failed to plead sufficient facts that would entitle
him to relief. See Rule 32.6(b), Ala. R. Crim. P.

Spencer R.32, 201 So. 3d at 593.
In his reply in support of his habeas petition, Mr. Spencer argues that the
ACCA misunderstood his arguments on this issue, which he did not intend to be a
claim about a discussion between three jurors. Doc. 21 at 34. Mr. Spencer clarified
on reply that his argument is “that as an African-American capital defendant accused
of murdering three white police officers, he was entitled to have his counsel question
prospective jurors about racial bias, and identified the controlling precedent, Turner
v. Murray[, 476 U.S. 28 (1986)]. . .’” Id. at 34–35.
Out of an abundance of caution, this court reviews this claim without AEDPA
deference, assuming arguendo that if t he ACCA misunderstood Mr. Spencer’s
claim, its determinations about it were “based on an unreasonable determination of
the facts in light of the evidence presented in State court proceedings.” 28 U.S.C. §
2254(d).
To prevail on this claim under Strickland, Mr. Spencer must show that his trial
counsel’s performance was deficient and that he was prejudiced by it . 466 U.S. at
687. Mr. Spencer cites Turner for the proposition that defendants have a right to
question potential jurors about racial bias in the context of interracial capital cases,
such as this one. Doc. 1 ¶ 72. But Turner does not mandate such questioning as a
categorical requirement for counsel’s effectiveness; it simply establishes a
Case 2:16-cv-01877-AMM Document 31 Filed 04/01/26 Page 72 of 218

defendant’s right to engage in such questioning and leaves the strategic decision
whether to do that up to the defendant and his counsel . See Turner, 476 U.S. at 36
n.10 (“Should defendant’s counsel decline to request voir dire on the subject of racial
prejudice, we in no way require or suggest that the judge broach the topic sua
sponte.”). Further, Turner holds that “a defendant cannot complain of a judge’ s
failure to question the venire on racial prejudice unless the defendant has specifically
requested such an inquiry.” Id. at 37.
There is no indication in the record that Mr. Spencer or his trial counsel
thought it important or necessary to ask such questions during voir dire . See Doc.
17-21 at 125–202; Doc. 17-22 at 3–129. Turner does not comment one way or the
other whether Mr. Spencer’s counsel was deficient in this regard, and it is not a basis
for Mr. Spencer to now “establish that no competent counsel would have taken the
action that his counsel did take. ” Chandler, 218 F.3d at 1315. And Mr. Spencer
supplies no other basis for the court to make such a finding. Accordingly, the court
cannot say that Mr. Spencer’s counsel was deficient on this ground.
In any event, even if Mr. Spencer could establish deficient performance on
this issue, Mr. Spencer has not shown that the result of the trial would have been
different if his trial counsel had asked questions about racial bias . Mr. Spencer
confessed to murdering three police officers, and his attempts to prove an affirmative
defense were not fruitful. The jury had overwhelming evidence of Mr. Spencer ’s
Case 2:16-cv-01877-AMM Document 31 Filed 04/01/26 Page 73 of 218

guilt and convicted him of the murders and the attempted murder of Officer Collins.
Additionally, the jury’s decision to spare Mr. Spencer’s life reflects a favorable
decision for him on any question in their minds whether his shootings were racially
motivated. Ultimately, Mr. Spencer makes no arguments that the jury convicted him
because of racial bias, nor does he explain how questions about racial bias could
have resulted in a different or better outcome in his case. Accordingly, Mr. Spencer
is due no habeas relief on this claim.
c. Failure to follow up on indications of bias in venire
Mr. Spencer next contends that trial counsel was ineffective during voir dire
because “counsel failed to move to remove biased venire members for cause ” and
“did not adequately follow-up with several jurors who demonstrated bias. ” Doc. 1
¶¶ 73, 74. Specifically, one venire member “stated that he had a fixed opinion about
the case and that it was ‘going to be an uphill battle ’ for the defendant. ” Id. ¶ 73.
And another venire member “stated that she was ‘leaning 70 percent towards’ Mr.
Spencer’s guilt based on what she knew about the case prior to trial, and was related
to police chief Johnson[.]” Id. Finally, another potential juror “indicated that he had
read extensively about the case —even though he knew that he might be called to
serve on the jury —and that Mr. Spencer appeared to be very guilty. ” Id. ¶ 74. Mr.
Spencer contends that “[c]ounsel failed to question the identified jurors at all or
questioned them only minimally about their fixed opinions on guilt, and counsel
Case 2:16-cv-01877-AMM Document 31 Filed 04/01/26 Page 74 of 218

should have questioned them probingly to determine whether these jurors had
irrevocably fixed opinions about Mr. Spencer’s guilt[.]” Id. ¶ 73.
The ACCA addressed this issue, writing:
Third, Spencer argues that his trial counsel was ineffective
for failing to ask follow -up questions to several
prospective jurors who indicated biases during the voir
dire examination. Specifically, Spencer pleaded that his
trial counsel failed to ask foll ow-up questions of
prospective jurors R.H., J.J., and J.W. after they indicated
biases against Spencer.

The circuit court stated the following concerning this
claim:

“Jurors [R.H.], [J.J.] and [J.W.] unequivocally
indicated during voir dire that they would base their
verdicts on the evidence presented during trial and
would follow the trial court’ s instructions and
would not base their verdicts on what they had read
about the crime. Counsel were not ineffective for
failing to conduct a more thorough voir dire on these
jurors because they stated that they could set aside
their opinions and follow the trial judge ’s
instructions. Because no material issue of fact or
law exists concerning this claim Spencer ’s request
for an evidentiary hearing is denied.”

(C.R. 92–93.)

Spencer pleaded in his postconviction petition that
prospective juror R.H. stated during voir dire examination
that he had a fixed opinion about Spencer ’s guilt.
However, a review of the record of the voir dire
examination shows that R.H. said that he did not have a
fixed opinion about Spencer ’s guilt and that he could
follow the court’s instructions on the case. (Trial R. 547 –
48.) Spencer also pleaded that prospective juror J.J. was
Case 2:16-cv-01877-AMM Document 31 Filed 04/01/26 Page 75 of 218

biased because she said that she was leaning 70% toward
guilt, that she was related to a police chief, and that she
was familiar with the facts of the case. However, J.J.
indicated that she could render a decision based on the jury
instructions. Spencer fu rther pleaded that prospective
juror J.W. indicated that he had read extensively about the
case. However, the record shows that trial counsel moved
that J.W. be removed for cause based on his answers to
voir dire questions but that that motion was denied. (Trial
R. 569.)

More importantly, Spencer failed to plead, and could not
show, any prejudice in regard to his trial counsel’s failure
to more adequately question prospective jurors R.H., J.J.,
and J.W. Indeed, the trial record shows that none of the
challenged prospective jurors served on Spencer ’s jury.
(Trial R. 628; Trial C. 3251– 3404.) “[T]he Alabama
Supreme Court has held that the failure to remove a juror
for cause is harmless when that juror is removed by the use
of a peremptory strike. Bethea v. Springhill Mem’l Hosp.,
833 So. 2d 1 (Ala. 2002).” Pace v. State, 904 So. 2d 331,
341 (Ala. Crim. App. 2003). “Because the substantive
claim underlying the claim of ineffective assistance of
counsel has no merit, counsel could not be ineffective for
failing to raise this issue. ” Lee v. State, 44 So. 3d 1145,
1173 (Ala. Crim. App. 2009).

The circuit court correctly found that this claim was due to
be summarily dismissed because no material issue of fact
or law existed that would entitle Spencer to relief. See Rule
32.7(d), Ala. R. Crim. P.

Spencer R.32, 201 So. 3d at 593–94.
Mr. Spencer’s claim fails because his counsel, the prosecution, and the trial
court thoroughly followed up on indications of bias in the venire , as noted by the
ACCA. See Doc. 17-21 at 158–202; Doc. 17- 22 at 3– 43, 56–116. As such, the
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ACCA did not unreasonably decide that Mr. Spencer was provided a fair and
impartial jury. See Morgan v. Ill., 504 U.S. 719, 729 (1992); Rosales-Lopez v. United
States, 451 U.S. 182, 188 –92 (1981). Nor, on these facts, did the ACCA
unreasonably conclude that Mr. Spencer ’s counsel effectively represented his
interests in this respect.
d. Failure to challenge for cause venire-members whose
views on death penalty infected their impartiality
Mr. Spencer next contends that trial counsel was ineffective during voir dire
because “counsel failed to adequately challenge for cause venire members whose
views on the death penalty substantially impaired their ability to be fair jurors. ”
Doc. 1 ¶ 75. Mr. Spencer points to “venire member Garner, who twice stated that if
he found Mr. Spencer guilty, he would impose the death penalty.” Id. According to
Mr. Spencer, “[t]hough he subsequently stated that he could ‘weigh’ the two options,
this statement was insufficient to overcome his prior expressions of bias.” Id. Mr.
Spencer also mentions th e venire member who made the “uphill battle” comment
and the one who “stated that she was ‘leaning 70 percent towards ’ Mr. Spencer’s
guilt . . . , and was related to police chief Johnson[.]” Id. ¶ 73.
The ACCA addressed this issue, writing:
Spencer next argues that his trial counsel was ineffective
for failing to adequately challenge venire members who
expressed fixed opinions in favor of the death penalty. In
his second amended petition, Spencer identifies only one
prospective juror by name. Spencer pleaded that counsel
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was ineffective for failing to adequately question
prospective juror K.G. because K.G. indicated that if
Spencer were found guilty he would vote for the death
penalty.

The circuit court stated the following concerning this
claim:

“Spencer requests an evidentiary hearing on his
claim that counsel were ineffective because they
failed to challenge for cause prospective juror
[K.G.]. This request is denied because the claim is
insufficiently pleaded because, with one exception,
Spencer does not identify which jurors had views on
the death penalty that substantially impaired their
ability to be fair jurors.

“In addition, while juror [K.G.] indicated that he
was in favor of the death penalty the trial court
then explained the process that would occur
during the penalty phase of the trial and asked
juror [K.G.] whether he could decide what
punishment to impose based on the process of
weighing aggravating and mitigating
circumstances. Juror [K.G.] responded that he
could base his decision using this process. There
is no evidence in the record that juror [K.G. ’s]
views on the death penalty ‘would prevent or
substantially impair ’ the performance of his
duties as a juror in accordance with his
instructions and his oath. Spencer ’s request for
an evidentiary hearing on this claim is denied
because no material issue of fact or law exists
which would entitle Spencer to relief.”

(C. 94.) Spencer failed to plead any prejudice in regard to
prospective juror K.G. Indeed, the trial record shows that
prospective juror K.G. did not serve on Spencer ’s jury.
(Trial R. 628; Trial C. 3251– 3404.) In affirming a circuit
court’s summary dismissal of a similar claim in a
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postconviction petition, this Court in Lee v. State, 44 So.
3d 1145 (Ala. Crim. App. 2009), stated:

“The circuit court correctly found that this claim
was not sufficiently pleaded because Lee failed to
plead how he was prejudiced by counsel’s failure to
use his peremptory strikes to remove these three
jurors. See Beckworth v. State, [190 So. 3d 527 (Ala.
Crim. App. 2009)]. Lee did not allege that any of
the jurors were actually biased against him and,
unlike [State v.] Terry, [601 So. 2d 161 (Ala. Crim.
App. 1992),] the record of the voir dire examination
shows that the three jurors indicated that they ha d
no bias against Lee nor were they biased in favor of
the State. As the Mississippi Supreme Court stated
in Le v. State, 913 So. 2d 913 (Miss. 2005):

“‘The Fifth Circuit Court of Appeals considers
an attorney ’s actions during voir dire to be a
matter of trial strategy, which “cannot be the
basis for a claim of ineffective assistance of
counsel unless counsel’s tactics are shown to be
‘so ill chosen that it permeates that entire trial
with obvious unfairness. ’” Teague v. Scott, 60
F.3d 1167, 1172 (5th Cir. 1995) (quoting
Garland v. Maggio, 717 F.2d 199, 206 (5th Cir.
1983)). Federal courts have held that an
attorney’s failure to exercise peremptory
challenges does not give rise to a claim of
ineffective assistance of counsel absent a
showing that the defendant was prejudiced by
the counsel’s failure to exercise the challenges.
United States v. Taylor, 832 F.2d 1187 (10th
Cir. 1987). See also Mattheson v. King, 751
F.2d 1432, 1438 (5th Cir. 1985).’

“913 So. 2d at 954.”

Lee, 44 So. 3d at 1164–65.

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This claim was correctly summarily dismissed because
Spencer failed to meet his burden to plead the full factual
basis of his claim. See Rules 32.6(b) and 32.7(d), Ala. R.
Crim. P.

Spencer R.32, 201 So. 3d at 594–96.
As the ACCA correctly explained, Mr. Spencer cannot establish that his
counsel was ineffective, because his counsel, the prosecution, and the trial court
extensively questioned Mr. Garner on his beliefs. Doc. 17-21 at 189–98. Mr. Garner
responded to the court ’s questions and affirmed that he could “[a]bsolutely” “base
[his] verdict on what [he] hear[d] in the court room. ” Id. at 190. Mr. Spencer’ s
counsel, still not satisfied by Mr. Garner’ s response, followed up with Mr. Garner
and asked, “would you automatically vote for the death penalty [if you found Mr.
Spencer guilty]? ” After Mr. Garner responded, “Yes,” the trial court again
questioned Mr. Garner, who again affirmed that he could be fair and reasonable, and
decide the case based on the evidence presented . Id. at 192 –93. Mr. Spencer’s
counsel then moved to strike Mr. Garner from the venire for cause . Id. at 196–97.
Accordingly, Mr. Spencer’s counsel acted reasonably in his defense, was attentive
to the issues that Mr. Garner ’s jury service might pose, and was not ineffective in
this regard.
What’s more, even though the trial court denied defense counsel’s request to
strike Mr. Garner from the jury for cause, Mr. Garner did not serve on the jury, so
Mr. Spencer cannot establish that he was prejudiced by any alleged deficiencies in
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his counsel’s performance in this respect. Spencer R.32 , 201 So. 3d at 595.
Accordingly, Mr. Spencer is due no habeas relief on this claim.
e. Failure to adequately object to death qualification of jurors
Mr. Spencer contends that trial counsel was ineffective during voir dire
because “counsel failed to adequately object to the pretrial death -qualification of
jurors.” Doc. 1 ¶ 76. He argues that “social scientific evidence shows” problematic
outcomes when jurors are death qualified, namely, “death qualified juries are
significantly more prone to convict than ordinary juries[,]” “ the process of pretrial
death qualification . . . conditions the jury towards guilt[,]” and “death qualification
disproportionately excludes minorities and women. ” Id. And he argues that in his
case “counsel failed to adequately question and marshal arguments that the trial court
erred in removing venire members Andrews and Dillard based on their views about
the death penalty.” Id. ¶ 77. He alleges that “counsel should have used the readily
available Colorado method of voir dire to life-qualify these jurors[.]” Id.
The ACCA addressed this issue, writing:
Spencer next argues that his trial counsel was ineffective
because he failed to object to the pretrial death
qualifications of the prospective jurors. Specifically,
Spencer argues that his trial counsel failed to object when
prospective jurors E.A. and C.D. were removed for cause
based on their opposition to the death penalty.

The circuit court stated the following concerning this
claim:

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“Spencer [is not] entitled to an evidentiary hearing
on his claim that his attorneys should have
questioned prospective jurors [E.A.] and [C.D.]
more thoroughly concerning their views on the
death penalty. Both jurors were questioned
extensively about their views on the death penalty
and both stated that they could not impose the death
penalty. There was nothing more counsel could
have done. The opposition of these jurors to the
death penalty would have prevented or substantially
impaired their ability to perform their duties as
jurors. No material issue of fact or law exists
concerning this claim; therefore, Spencer ’s request
for an evidentiary hearing is denied.”

(C. 70–71.)

The circuit court did not summarily dismiss this claim
based on the insufficiency of the pleadings; instead, the
circuit court found that, based on the record, this claim
presented no material issue of fact or law that would entitle
Spencer to relief. See Rule 32.7(d), Ala. R. Crim. P. This
Court has reviewed the transcript of the voir dire
examination and agrees. Prospective jurors E.A. and C.D.
were properly excused for cause after they indicated
during voir dire that they were opposed to the death
penalty. Any further action by counsel would not have
changed the prospective jurors’ responses.

The circuit court correctly found that this claim was due to
be summarily dismissed because there was no material
issue of fact or law that would entitle Spencer to relief. See
Rule 32.7(d), Ala. R. Crim. P.

Spencer R.32, 201 So. 3d at 596.
Mr. Spencer contends that the ACCA “absolved counsel from any duty to
rehabilitate [prospective jurors E.A. and C.D.] or raise reasonable objections to their
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dismissal[,] and that doing so was improper because counsel has “a duty to
thoroughly question prospective jurors in order to ensure a fair and impartial jury
capable of considering a life sentence.” Doc. 21 at 36. And, Mr. Spencer contends,
excluding a juror simply because of an opposition to the death penalty is improper
if the juror would still be able to impose the death penalty if the law required. Id. at
36–37. According to Mr. Spence r, “E.A. and C.D. were not wholly opposed to
capital punishment,” ev en though they both expressed opposition to it. Id. at 37.
Rather, E.A. said, “I would think that I could follow the instructions.” Id. Mr.
Spencer contends that “E.A.’s personal views against the death penalty did not
substantially impair his ability to follow the court’s instructions, [so] he was subject
to rehabilitation and should not have been removed for cause.” Id. And as to potential
juror C.D., “counsel made only a shallow effort to rehabilitate her, resulting in
premature excusal.” Id. at 38. According to Mr. Spencer, excluding these two jurors
violated Witherspoon v. Illinois, 391 U.S. 510 (1968) , and Wainwright v. Witt, 469
U.S. 412 (1985). See Doc. 21 at 36. Mr. Spencer contends that those cases “impose
upon counsel a duty to thoroughly question prospective jurors in order to ensure a
fair and impartial jury capable of considering a life sentence.” Id.
Mr. Spencer’ s arguments run headlong into controlling Supreme Court
precedent, see Lockhart v. McCree , 476 U.S. 162 (1986), in which the Supreme
Court ruled:
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Does the Constitution prohibit the removal for cause, prior
to the guilty phase of a bifurcated capital trial, of
prospective jurors whose opposition to the death penalty
is so strong that it would prevent or substantially impair
the performance of their duties as jurors at the sentencing
phase of trial? We hold that it does not.

Id. at 165 (citations omitted).
The ACCA did not unreasonably interpret this holding or the evidentiary
record in Mr. Spencer’s case. See Doc. 17-21 at 167 –77 (excusing juror Andrews
after he expressed strong opposition to the death penalty); id. at 186–89 (excusing
juror Dillard after she expressed strong opposition to the death penalty). Mr. Spencer
is thus due no relief on this claim.
vi. Failure To Investigate And Present Viable Defense Theory
Mr. Spencer contends that trial counsel was ineffective because “[c]ounsel
failed to conduct an independent investigation, despite the obvious weaknesses in
the prosecution’s case and the ample, and readily available, sources of exculpatory
evidence.” Doc. 1 ¶ 78. According to Mr. Spencer, trial counsel continued to pursue
a self-defense theory despite numerous warnings from the trial court that doing so
would be “at their own peril. ” Id. ¶ 81. Mr. Spencer contends that trial counsel
should have “ presented more viable defenses of provocation manslaughter, and
voluntary intoxication.” Id. ¶ 82. Because counsel did not “investigate an alternative
legal theory, and instead focus[ed] on a legal theory that had been explicitly rejected
by the judge ,” id. ¶ 84, Mr. Spencer alleges “counsel was unable to provide a
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concrete way for the jury to give effect to any doubts it had about Mr. Spencer’s
guilt,” id. ¶ 83.
Specifically, Mr. Spencer alleges that counsel was ineffective when it failed
to utilize the testimony of two witnesses, Markesha Williams and Tyran “Bubba”
Cooper, “who could have offered proof supporting the provocation defense ,” id.
¶¶ 87, 88, which “defense attorneys asserted . . . , but failed to offer additional proof
of[,]” id. ¶ 86. But “the testimony of [these] two witnesses was critical to explain the
nature of the imminent threat that Mr. Spencer faced on [the day of the shootings].”
Id.
Ms. Williams allegedly “could have offered substantial corroboration for a
provocation manslaughter defense ” because Ms. Williams allegedly saw an
exchange of “ protection money” between Officer Owen and Mr. Cooper , “the
individual who was supplying the drugs that Mr. Spencer and Mr. Woods sold from
the apartment.” Id. ¶ 87. “Before the shooting, Ms. Williams also saw the police
enter the apartment by ‘snatching the door off the hinges,’ with their guns drawn.”
Id.
Mr. Cooper allegedly would have offered testimony about a scheme between
himself and Officers Owen and Chisolm, in which he paid the officers to protect his
drug activities and to “warn[] [Mr.] Cooper in advance about imminent police raids
and narcotic task force activities that might impact his business[.] ” Id. ¶ 88. Mr.
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Cooper allegedly would have explained that he had stopped paying the officers “and
that Officers Owen and Chisolm had threatened [ Mr.] Cooper, [Mr.] Woods and
[Mr.] Spencer when he stopped paying them. ” Id. Further, “[Mr.] Cooper would
have also testified that . . . the case agent for Mr. Spencer’s case[] had threatened ‘to
bury’ [Mr.] Cooper if he revealed information about his arrangement with police[.]”
Id. Mr. Spencer alleges that “counsel’s failure to present this evidence ensured that
the court would decline to instruct the jury on provocation manslaughter [,]” which
meant that “jurors were unable to render a not guilty verdict on evidence that trial
counsel did present, tending to show that Mr. Spencer shot the officers because he
had been threatened[,]” and “enabled the prosecution to argue repeatedly that Mr.
Spencer committed a premeditated crime.” Id. ¶ 89.
The ACCA addressed this issue:
First, Spencer argues that his trial counsel was ineffective
for failing to investigate and to gather evidence to support
counsel’s theory of the case. Specifically, Spencer pleaded
that his trial counsel was ineffective for failing to present
a viable defense based on provocation manslaughter
because counsel failed to present the testimony of Tyran
“Bubba” Cooper and Markesha Williams.

Attached to Spencer ’s postconviction petition was an
affidavit executed by Cooper. Cooper stated that he paid
two Birmingham police officers so that police would not
interfere with the drug business that he was conducting at
the location where the officers were killed. According to
Cooper, the officers threatened him when he stopped
making payments. Spencer did not plead in his amended
petition, nor did Cooper state in his affidavit, that he was
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present or witnessed the shootings. Spencer also pleaded
that Williams witnessed Cooper hand a police officer a
bundle of money several days before the shootings.

“Alabama courts have, in fact, recognized three
legal provocations sufficient to reduce murder to
manslaughter: (1) when the accused witnesses his or
her spouse in the act of adultery; (2) when the
accused is assaulted or faced with an imminent
assault on h imself; and (3) when the accused
witnesses an assault on a family member or close
relative.”

Rogers v. State, 819 So. 2d 643, 662 (Ala. Crim. App.
2001).

In discussing what constitutes “ imminent assault” in
regard to provocation manslaughter, this Court has stated:

“‘“‘Mere words, no matter how insulting, never
reduce a homicide to manslaughter. Manslaughter is
the unlawful killing of a human being without
malice; that is, the unpremeditated result of
passion— heated blood —caused by a sudden,
sufficient provocation. And such provocation can,
in no case, be less than an assault, either actually
committed, or menaced under such pending
circumstances as reasonable to convince the mind
that the accused has cause for believing, and did
believe, he would be presently assaulted, and that he
struck, not in consequence of a previously formed
design, general or special, but in consequence of the
passion suddenly aroused by the blow given, or
apparently about to be given. ’ ...” Reeves v. State,
186 Ala. 14, 65 So. 160, 161 [ (1914) ]. ’ Easley v.
State, 246 Ala. 359, at 362, 20 So. 2d 519, 522
(Ala.1944). Thus, the mere appearance of imminent
assault may be sufficient to arouse heat of passion.”

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Cox v. State, 500 So. 2d 1296, 1298 (Ala. Crim. App.
1986). “What constitutes legal provocation is left to the
trial judge ’s interpretation. ” Gray v. State, 574 So. 2d
1010, 1011 (Ala. Crim. App. 1990) (citing Shultz v. State,
480 So. 2d 73, 76 (Ala. Crim. App. 1985)).

Here, the circuit court stated the following concerning this
claim:

“Spencer contends that the testimony of Tyran
Cooper and Markesha Williams would have shown
that the officers were not at the house for a lawful
purpose but were there for the unlawful purpose of
bribe—taking and retaliation for unpaid bribes
against Mr. Co oper and would have supported a
defense that he was assaulted or faced an imminent
assault on himself.

“Spencer’s request is denied because no ‘ material
issue of fact or law exists’ which would entitle him
to relief. Rule 32.7(d), Ala. R. Crim. P. While it is
true that Spencer has pleaded more facts to support
his claim that his attorney should have presented a
provocation manslaughter defense, the facts
pleaded do not support this defense. The Court of
Criminal Appeals discussed the law concerning this
defense on direct appeal, as follows:

“‘Section 13A–6–3, Ala. Code 1975, states, in
pertinent part:

“‘“(a) A person commits the crime of
manslaughter if:

“‘“....

“‘“(2) He causes the death of another person
under circumstances that would constitute
murder under Section 13A–6–2; except, that
he causes the death due to a sudden heat of
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passion caused by provocation recognized by
law, and before a reasonable time for the
passion to cool and for reason to reassert
itself.”

“‘(emphasis added.) It is well settled that even
where the defendant commits the killing due to
a sudden heat of passion, an instruction on
manslaughter is properly refused where there is
no evidence that that sudden heat of passion was
caused by a provocation recognized by law.
Harrison v. State, 580 So. 2d 73, 74 (Ala. Crim.
App. 1991).

“‘“Alabama courts have, in fact, recognized
three legal provocations sufficient to reduce
murder to manslaughter: (1) when the
accused witnesses his or her spouse in the act
of adultery; (2) when the accused is assaulted
or faced with an imminent assault on himself;
and (3) when the accused witnesses an assault
on a family member or close relative.”

“‘Rogers v. State, 819 So. 2d 643, 662 (Ala.
Crim. App. 2001).’

“Spencer v. State, 58 So. 3d 215, 244 –45 (Ala.
Crim. App. 2008). The Court of Criminal Appeals
then found that the evidence presented by Spencer
at trial was insufficient to support a heat-of-passion
manslaughter defense, as follows:

“‘Here, based on the evidence supporting
Spencer’s theory of events, the events leading
up to the shootings, even if creating a sense of
passion or mental or emotional imbalance, did
not constitute a legally recognized provocation.
It is apparent that neither the first (accused
witnesses his spouse commi tting adultery) nor
the third (accused witnesses an assault on a
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family member or close relative) legally
recognized provocation is applicable in this
case. As to whether the second legally
recognized provocation (whether Spencer was
assaulted or faced with an imminent assault on
himself) is applicable under the facts of this
case, we have reviewed the evidence and
answer that question in the negative.

“‘Even assuming, without finding as true,
Spencer’s contentions that the officers made
remarks during the earlier encounter that caused
Spencer to fear that the officers would hurt or
kill him, those comments were made hours
before the final encounter where the officers
were killed. Additionally, the init ial arguments
were between Woods and officers; Spencer
willingly joined in the verbal jousting, and again
continued his verbal sparring with a second
officer even though the first officer had,
according to Spencer, made threatening
comments. Further, the first two officers
Spencer encountered during the final and fatal
engagement were shot repeatedly in the back
while attempting to exercise a lawful arrest on
Woods. The evidence also indicates that
Spencer made statements following the earlier
encounters with the officers that if the officers
returned he would ‘bust ‘em’ (R. 913), and that
‘they was gonna get’ the officers if they
returned. (R. 1638.) Additionally, Spencer,
knowing that the officers had retur ned because
he looked out the window, exacerbated the
situation by intentionally grabbing his loaded
SKS assault rifle and proceeding toward the
commotion in the kitchen. This evidence further
militates against any contention that the
murders were committed in a sudden passion
and thus warranted such a jury instruction.
Because the evidence did not support a charge
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on heat-of-passion manslaughter, the trial court
properly rejected Spencer ’s request for such a
charge.’

“Id. at 245.

“Tyran Cooper’s testimony does nothing to change
the facts set forth above. It does not show that
Spencer was assaulted or faced with an imminent
assault on himself. As the Court of Criminal
Appeals found, Spencer was the aggressor—not the
officers. As the Court of Criminal Appeals also
noted, Spencer shot the first two officers in the back
as they were lawfully arresting Woods, he made
statements earlier in the day that he would get the
officers if they returned, and when Spencer saw that
the officers had returned, he picked up his SKS
assault rifle and sought out the officers. Spencer, 58
So. 3d at 245. The same is true of Markesha
Williams’s testimony. As the Court of Criminal
Appeals found, the words between Spencer and the
officers occurred hours between the initial visit
from the officers and their attempt to serve the arrest
warrant on Woods. In addition, the earlier
confrontation was between Woods and the officers
and did not involve Spencer. None of the evidence
Spencer now alleges should have been p resented
would have changed these facts.

“The fact that Tyran Cooper was allegedly in a
dispute with the officers concerning bribes does
not show that Spencer was assaulted or faced
with an imminent assault when the officers
entered the house to arrest Woods. Spencer has
not shown that counsel was ineffective because
he failed to find and present more evidence to
support a provocation manslaughter defense.
Spencer is not entitled to an evidentiary hearing
on this claim because no ‘material issue of fact
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or law exists’ which would entitle him to relief.
Rule 32.7(d), Ala. R. Crim. P.”

(C. 71–75.)

The evidence that Spencer pleaded should have been
presented at trial —evidence of an alleged dispute that
Nathaniel Woods was having with police officers— would
not have supported a jury instruction on provocation
manslaughter. Spencer did not plead in his second
amended petition that he was in imminent threat of an
assault at the time of the shootings. Spencer ignores the
critical and undisputed evidence that two of the police
officers were shot in the back with their guns still in their
holsters. Indeed, Spencer’s own testimony at trial showed
that the officers were talking with Woods at the time of the
shootings.

This claim was correctly summarily dismissed pursuant to
Rule 32.7(d), Ala. R. Crim. P., because, assuming that all
the pleaded facts were true, the claim failed to state any
material issue of fact or law that would entitle Spencer to
relief.

Spencer R.32, 201 So. 3d at 596–99.
Mr. Spencer contends that “the state courts made no findings of fact respecting
this distinct claim[.]” Doc. 21 at 39. Rather, he argues, “[i]t appears that the Court
of Criminal Appeals simply overlooked it.” Id. But as the foregoing analysis by the
ACCA reflects, this is simply not so—th at court addressed this claim.
Mr. Spencer also contends that the ACCA’s determination of his provocation
manslaughter claim was “objectively unreasonable” because his “Rule 32 petition
presented sufficient evidence of his belief that he was under an imminent deadly
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threat from the police officers when he shot them.” Id. at 42–43. But as the ACCA
ruling makes plain, the ACCA did not unreasonably interpret the facts of Mr.
Spencer’s case. Mr. Spencer’s counsel had limited evidence to support any viable
theory of defense, and his pursuit of those theories was, in the end, fruitless. See
Spencer R.32, 201 So. 3d at 596–99.
Mr. Spencer also contends that “the [A]CCA unreasonably applied Beck v.
Alabama” and that he was prejudiced because his jury was not given an opportunity
to consider a lesser -included offense. Doc. 21 at 43 –44. For the reasons discussed
above and in Part III.B.2.i., below, the ACCA reasonably applied Beck to conclude
that Mr. Spencer was not entitled to a jury instruction on a lesser -included offense
or self-defense. Indeed, the ACCA ruling is that, even with perfect counsel, Mr.
Spencer would not have been entitled to thos e jury instructions. See Spencer R.32,
201 So. 3d at 597–99.
vii. Failure To Investigate And Present Expert Testimony Supporting
Manslaughter Charge Based On Voluntary Intoxication
Mr. Spencer argues that trial counsel was ineffective because counsel “fail[ed]
to investigate and present evidence supporting [a cocaine paranoia] defense, despite
having specific knowledge that they would not be permitted to pursue a defense of
self-defense.” Doc. 1 ¶ 96. According to Mr. Spencer, “[a]bundant, readily available
evidence demonstrated that Mr. Spencer ’s intoxication should have been a critical
issue at trial.” Id. ¶ 100.
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Mr. Spencer contends that trial counsel contacted and provided material to a
“Psychiatric Pharmacy Specialist, ” Dr. Shannon Lee , to investigate a cocaine
paranoia defense, but “counsel did not pursue this line of inquiry and did not present
any evidence of this defense at trial.” Id. ¶ 94. Further, Mr. Spencer asserts, “Despite
receiving repeated notice from the trial court that any effort to present a self-defense
defense would likely fail, defense counsel did not further investigate the defense of
‘cocaine paranoia.’” Id. ¶ 96. According to Mr. Spencer, an expert such as Dr. Lee
or Dr. Johnathan Lipman (a post-conviction neuropharmacologist) could have
testified “that the medications and illegal drugs that Mr. Spencer ingested, in
combination with the visual and spatial neurological deficits caused by multiple head
injuries, tremendously hindered his ability to react appropriately at the time of the
crime.” Id. ¶ 104.
According to Mr. Spencer, “Dr. Lipman concludes, based on the record, that
at the time of the offenses Mr. Spencer’s brain and behavior would have been acting
under the combined and concerted neuropharmacological influences of chronic
cocaine abuse and acute Quetiapine drug action and possibly to some extent alcohol
. . . .” Id. ¶ 110. Mr. Spencer believes that “[w]ith expert evidence, the jury would
have learned that Mr. Spencer ’s level of cocaine use likely caused severe paranoia
and possibly even full psychosis.” Id. ¶ 103.
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Further, Mr. Spencer asserts, several “occupants of the crack house where Mr.
Spencer had been living . . . were readily available witnesses who have testified that
he was intoxicated when he committed the crime. ” Id. ¶ 101. But he says that
“[b]ecause of defense counsel ’s failure to investigate and present evidence of
intoxication, the jurors were effectively prevented from considering why Mr.
Spencer acted as he did. ” Id. ¶ 98. And this allegedly led to a “forced guilty
verdict[,]” where “the jury was trapped between the only two possible verdicts —
acquittal and guilt of capital murder[.]” Id. ¶ 112.
The ACCA addressed this issue:
Spencer also argues that his trial counsel was ineffective
for failing to obtain and to present expert testimony on the
defense of voluntary intoxication. Specifically, he argues
that he should have had an expert testify about the effects
of alcohol when mixed with other drugs.

The circuit court stated the following concerning this
claim:

“For a jury to consider the issue of whether a
defendant’s level of intoxication rises to the level to
negate a requisite intent, there must be sufficient
evidence to support a reasonable theory of an
extreme level of intoxication. See Ex parte
McWhorter, 781 So. 2d 330, 342–343 [(Ala.2000)].
A jury typically must consider whether a defendant
was so intoxicated, at the time of the charged
offense, that his mental state amounted to insanity,
therefore, finding that his extreme intoxication
negated the requis ite intent, as charged in the
indictment. See Crosslin v. State, 446 So. 2d 675,
681–682 (Ala. Crim. App. 1983).
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“Spencer argues that an expert should have testified
that the effects of Seroquel and cocaine on
Spencer’s brain would have left him confused and
unable to process information logically. In addition,
Spencer argues that disorientation, agitation,
aggression, hallucinations, and paranoia have been
reported with Quetiapine use. Finally, Spencer
asserts that ‘[c]hronic cocaine abuse is known to
engender panic, anxiety, and irrational fears. ’ This
evidence is insufficient to show that, at the time he
murdered the three police officers, Spencer was
intoxicated to the point of insanity. In fact, Spencer
does not even allege in the Rule 32 petition that he
was suffering from any of these side effects when
he murdered the three police officers— just that
these are po ssible side effects from these drugs.
Counsel’s performance, therefore, was not deficient
because they failed to present this evidence at
Spencer’s trial.

“In addition, Spencer ’s claim that he was
prejudiced by counsel’s failure to present this
expert testimony does not present a material
issue of fact or law because his actions during
this crime show that he was not intoxicated to
the point of insanity. When Spencer heard a
commotion outside, he went to the bedroom
window to see what was going on. When
Spencer saw the officers in the apartment, he
started shooting and did not stop shooting until
all the officers were down. He walked to the
back door of the apartment and saw Officer
Collins. He shot at Officer Collins to make sure
that he was not a threat to him. When he left the
apartment, he went to a house down the street
where he hid in the attic to avoid the police.
Spencer’s actions during the murders of the
police officers clearly reveal that he was not
functioning as someone who was intoxicated to
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the point of insanity but as someone who
understood what he was doing and was aware of
the consequences of his actions. Because
Spencer’s actions during the murders show that
he was not intoxicated to the point of insanity,
he cannot prove that he was prejudiced by
counsel’s failure to present expert evidence
concerning his cocaine, alcohol, and pill use.”

(C. 75–77.)

This Court has held that a petitioner fails to plead
sufficient facts regarding a claim that counsel failed to
present an intoxication defense when he makes only a bare
allegation that the petitioner was intoxicated at the time of
the offense. As this Cour t has stated: “[The appellant]
failed to allege how much he had to drink the night of the
crime, how long before the crime he had been drinking, or
any fact indicating that his alleged intoxication amounted
to insanity.” Connally v. State, 33 So. 3d 618, 623 (Ala.
Crim. App. 2007).

“[The appellant] failed to plead sufficient facts to
indicate that voluntary intoxication would have
been a viable defense or that he would have been
entitled to a jury instructions on voluntary
intoxication ...; thus, he failed to plead sufficient
facts in dicating that his trial counsel were
ineffective in this regard.”

Mashburn v. State, 148 So. 3d 1094, 1126–27 (Ala. Crim.
App. 2013). This claim was insufficiently pleaded.

Moreover, recently in Wiggins v. State, 193 So. 3d 765
(Ala. Crim. App. 2014), this Court stated:

“Some courts have found that expert testimony on
the effects of alcohol is not necessary because it
concerns an issue within the common knowledge of
a juror. As the Washington Court of Appeals stated
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in State v. Thomas, 123 Wash. App. 771, 98 P.3d
1258 (2004):

“‘A voluntary intoxication defense allows the
jury to consider “evidence of intoxication” to
determine whether the defendant acted with the
requisite intent. But unlike diminished capacity,
it is not necessary to present expert testimony to
support an involuntary intoxication defense.
The effects of alcohol are commonly known and
jurors can draw reasonable inferences from
testimony about alcohol use. State v. Kruger,
116 Wash. App. 685, 692– 93, 67 P.3d 1147,
rev. denied 150 Wash. 2d 1024, 81 P.3d 120
(2003); State v. Smissaert, 41 Wash. App. 813,
815, 706 P.2d 647 (1985).’

“123 Wash. App. at 781 –82, 98 P.3d at 1263. See
also State v. Frank, 364 N.W. 2d 398, 400
(Minn.1985) ( ‘Most jurors have some experience
with the effects of excessive alcohol consumption
and therefore, in an ordinary case, will not need
expert assistance.’).”

193 So. 3d at 802.

Furthermore, the trial record shows that trial counsel filed
a pretrial motion for funds to hire a pharmacologist. (Trial
C. 380.) In the motion, counsel stated:

“[D]efendant needs to have an expert testify at trial
as to whether or not habitual use of cocaine may
lead to episodes of paranoia that create a fear that
has no actual basis. This testimony may be used to
negate the State’s argument of the specific intent to
kill by the Defendant.”

(Trial C. 380.) That motion was granted. Postconviction
counsel admitted in the second amended petition that trial
counsel had hired Dr. Shannon Lee, a psychiatric
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pharmacy specialist, “to investigate and prepare material
for a ‘cocaine paranoia’ defense. For some reason, counsel
did not pursue this line of inquiry and did not present any
evidence of this defense at trial.” (C. 659.)

“[T]rial counsel had no reason to retain another
psychologist to dispute the first expert ’s findings.
‘A postconviction petition does not show
ineffective assistance merely because it presents a
new expert opinion that is different from the theory
used at trial.’ State v. Combs, 100 Ohio App. 3d 90,
103, 652 N.E. 2d 205, 213 (1994). See also State v.
Frogge, 359 N.C. 228, 244 –45, 607 S.E. 2d 627,
637 (2005). ‘Counsel is not ineffective for failing to
shop around for additional experts.’ Smulls v. State,
71 S.W. 3d 138, 156 (Mo. 2002). ‘Counsel is not
required to “continue looking for experts just
because the one he has consulted gave an
unfavorable opinion.” Sidebottom v. Delo, 46 F.3d
744, 753 (8th Cir. 1995).’ Walls v. Bowersox, 151
F.3d 827, 835 (8th Cir. 1998).”

Waldrop v. State, 987 So. 2d 1186, 1193 (Ala. Crim. App.
2007).

Testimony presented at trial indicated that the night before
the shootings Spencer ingested cocaine. Testimony further
indicated that the next morning between 9:00 a.m. and
10:00 a.m. Spencer drank one beer, took one Seroquel pill,
and ingested a small amount of cocaine. Spencer, 58 So.
3d at 256. The circuit court found in its amended
sentencing order that “‘more than sufficient time had
elapsed between the time the last drugs or alcohol were
ingested and the shooting[s].’” 58 So. 3d at 256. There was
no evidence at trial indicating that Spencer ’s intoxication
at the time of the shootings rose to such a level that it
amounted to insanity. See Connally v. State, supra.

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100

For the reasons stated above, this claim was correctly
summarily dismissed pursuant to Rule 32.6(b), Ala. R.
Crim. P.

Spencer R.32, 201 So. 3d at 599–601 (footnotes omitted).
According to Mr. Spencer, the ACCA ruling was “[in]consistent with a
reasonable application of relevant precedent[]” and an “[un]reasonable factual
determination[].” Doc. 21 at 47. Mr. Spencer contends that “it’s no answer for the
CCA to agree that not much evidence was presented at trial.” Id. at 48–49. “The crux
of Mr. Spencer’s claim is that trial counsel should have presented evidence about
cocaine paranoia and the like because it was relevant and readily available to support
a defense that counsel actually pursued.” Id. at 49. So, Mr. Spencer argues, “the
CCA’s reliance on the inadequate evidence in the trial record actually supports Mr.
Spencer’s post-conviction claim.” Id. According to Mr. Spencer, had counsel
provided adequate representation, a retained expert like “Dr. Lipman would have
corroborated what counsel argued[.]” Id. at 46. And “[w]hile the CCA derides this
new evidence as insufficiently specific, Mr. Spencer’s post-conviction expert would
testify that his cocaine intoxication persisted during the crime and that its
psychotoxic impacts would have included behavioral symptoms that mirror
psychosis[.]” Id. at 47. Mr. Spencer contends that his “Rule 32 petition contains a
much more detailed account of his intoxication than was found sufficient to warrant
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101

such a[ voluntary intoxication instruction]” by the ACCA in previous cases. Id. at
48.
At the outset, the court cannot consider Mr. Spencer’s factual allegations that
“are not before the [c]ourt because they were not presented to the state court at trial
or on direct appeal when the instant claim was raised. ” Doc. 18 at 39. Those facts
are: “The effects of chronic high dose cocaine abuse mimic in many ways the
symptoms and signs of psychosis in mental patients. The preferred pharmacological
term for this drug-induced psychotic-like condition is psychotomimesis.” Doc. 1 ¶
107. And:
Mr. Spencer’s last use of cocaine was about three hours
prior to the shootings. Although the subjective “rush” from
cocaine lasts at most an hour, and commonly less, cocaine
actually has a half -life of up to 1.5 hours. Dr. Lipman
opines, that even if Mr. Spencer had not been using
cocaine repeatedly and continuously for days, he would on
the basis of cocaine kinet ics alone, still have had an
appreciable blood level of the drug at the times of the
shooting. Since Mr. Spencer was also constantly drinking
alcohol, he would have had, routinely, a measurable blood
concentration of both alcohol and cocaine simultaneously.
When consumed together, the kinetics of cocaine are
altered (the half-life is extended) and cocaine blood levels
are raised above the level expected from cocaine alone.

Id. ¶ 109. Under controlling precedent, the court cannot consider these factual
allegations because they were not presented to the state courts. See Cullen, 563 U.S.
at 181; Snowden, 135 F.3d at 735.
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102

Separately, Mr. Spencer cites two Supreme Court cases to support his legal
argument, Harrington v. Richter, 562 U.S. 86 (2011), and Hinton v. Alabama, 571
U.S. 263 (2014). See Doc. 21 at 45–49. But he analyzes only Hinton, which he says
the ACCA incorrectly applied when it ignored his newly introduced expert
testimony about his intoxication. See id. at 47–48.
Mr. Spencer’s argument fails because in Hinton, the Supreme Court decided
that “the inadequate assistance of counsel [there] . . . d[id] not consist of the hiring
of an expert who, though qualified, was not qualified enough.” 571 U.S. at 274–75.
The court expressly did not “launch federal courts into examination of the relative
qualifications of experts hired and experts that might have been hired ” but instead
ruled only on “the unreasonable failure to understand the resources that state law
made available” to counsel, resulting in ineffective assistance. Id. at 275. And that’s
what Mr. Spencer asked the state court to do here— his petition invited the state court
to examine the potential testimony of a different expert who his previous counsel
might have obtained. See Doc. 21 at 46; Spencer R.32, 201 So. 3d at 600–01. Indeed,
Mr. Spencer’s counsel sought and received funds to hire a pharmacologist. Spencer
R.32, 201 So. 3d at 601. So the ACCA ruling was not an unreasonable interpretation
of Hinton.
Separately, the record supplies no indication that the ACCA unreasonably
interpreted the facts that were adduced at Mr. Spencer ’s trial. See id. Mr. Spencer
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testified that he did drugs the night before the murders and that he took a Seroquel
the morning of the murders. Doc. 17-27 at 157, 161–62, 186. But he did not testify
that he was high during the murders; he testified that he was asleep until the officers
entered the apartment while chasing Mr. Woods . See id. at 179 –88. The ACCA
reasonably interpreted these facts.
Accordingly, Mr. Spencer is due no habeas relief on this claim.
viii. Failure To Have Th orough Mental Evaluation B y Competent
Expert
Mr. Spencer contends that trial counsel was ineffective during the guilt phase
“by failing to have Mr. Spencer evaluated by any competent mental health expert
prior to his trial. ” Doc. 1 ¶ 113. According to Mr. Spencer, “[s] uch an expert was
necessary to testify that Mr. Spencer has post-traumatic stress disorder, a mental
health condition which either negated the specific intent for capital murder or
lessened his culpability for that crime.” Id.
Mr. Spencer acknowledges that before trial, “defense counsel requested funds
to have Mr. Spencer evaluated for competence to stand trial,” and he was evaluated
by Dr. Kimberly Ackerson, a forensic psychologist. Id. ¶ 114. She “concluded that
‘there is nothing to indicate this defendant has ever suffered from a serious mental
illness such as a formal thought disorder , psychotic disorder, or major affective
disorder.’” Id. But Mr. Spencer maintains that Dr Ackerson’s evaluation was “only
for the limited purpose of determining competence ” and “relied on limited
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information from only a few sources,” so her “report contained ‘red flags,’ . . . which
should have alerted counsel that a more detailed inquiry into Mr. Spencer ’s mental
health was warranted.” Id.
According to Mr. Spencer, trial counsel should have retained a competent
expert, such as Dr. Donna Schwartz -Watts, whom “ post-conviction counsel has
retained to evaluate Mr. Spencer[.] ” Id. ¶ 116. Dr. Schwartz -Watts “would have
testified that the accumulated trauma that he experienced prior to the crime for which
he was convicted caused him to develop post-traumatic stress disorder[,]” id., which
would have allegedly bolstered his self-defense theory when she explained that Mr.
Spencer suffered from “super hyper-vigilance and . . . an active startle response[,] ”
id. ¶ 118. His previous head injuries also allegedly caused “brain damage, including
visual and spatial defects which, in combination with his drug intoxication, would
have affected his ability to see and to process accurately what he saw at the time of
the crime.” Id. ¶ 119.
The ACCA addressed this issue:
Spencer next argues that counsel was ineffective for
failing to have him evaluated by a competent mental-
health expert. Specifically, Spencer pleaded in his second
amended petition that counsel should have hired Dr.
Donna Schwartiz –Watts—a psychiatrist —to evaluate
Spencer.

Spencer pleaded that Dr. Schwartiz –Watts evaluated
Spencer for the postconviction proceedings and that it was
her opinion that Spencer suffered from post- traumatic
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105

stress disorder and that he “ demonstrates super hyper -
vigilance ... and an active startle response. ” (C. 671.)
Spencer also pleaded that Dr. Schwartiz–Watts found that
Spencer had brain injuries from his childhood.

The circuit court stated the following concerning this
claim:

“Spencer fails to explain how the guilt phase of his
trial would have been different had he presented the
evidence that he suffers from post- traumatic stress
disorder or is brain damaged. The evidence is
overwhelming that Spencer indicated that he would
kill the officers if they returned to the apartment and
that he followed through on this threat. No material
issue of fact or law exists concerning this claim,
therefore, the request for an evidentiary hearing is
denied.”

(C. 94–95.)

The State asserts that this claim was not sufficiently
pleaded because Spencer did not “proffer any specific
facts that would show how his post- traumatic stress
syndrome or brain damage caused him to kill the
victim[s].” (C. 878.) This Court agrees. Spencer also failed
to plead how he was prejudiced by this expert’s failure to
testify. Therefore, this claim was correctly summarily
dismissed pursuant to Rule 32.6(b), Ala. R. Crim. P.

Moreover, the trial record shows that trial counsel moved
that Spencer be evaluated to determine his competency to
stand trial and that Spencer was evaluated by Dr. Kimberly
Ackerson, a forensic psychologist. The record also shows
that trial counsel moved for funds for a mitigation expert
and that that motion was granted. (C. 1582.) Dr. Allen E.
Shealy, a psychologist, conducted a psychological
evaluation of Spencer, administered intelligence tests to
Spencer, administered the “Bender–Gestalt” screening for
gross brain damage to Spencer, examined Spencer’ s
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medical records, and conducted numerous interviews.
(Trial C. 3468.) Dr. Shealy compiled a report, which was
admitted at the judicial sentencing hearing. In the report,
Dr. Shealy stated:

“I found Mr. Spencer to be cognitively intact as
indicated by a WAIS–III Verbal IQ of 97 which is
in the range of average intelligence, relative to the
general U.S. population. He reads at the Grade
Level of 10.8. There is no evidence of major brain
dysfunction as measured by the Bender –Gestalt, a
screening of gross neuropsychological intactness.
These findings are consistent with the conclusions
reached by Dr. Ackerson in her psychological
evaluation of trial competency. Therefore, his level
of intelligence is not considered of mitigating value.
Also his medical history including the history of
treatment during incarceration provides no evidence
of a major mental disorder which might have
mitigating value.

“One of the mitigating factors that is present is the
absence of a history of previous violent behavior.
This is reflected in the absence of arrests for violent
offenses and is consistent with reports from
collateral sources and with his behavioral history
since incarceration at the Jefferson County jail since
February 2005. At the time of my evaluation, he was
residing in the general population without violent
incidents.

“A second mitigating factor is Mr. Spencer’s social
and family history. Even though he grew up with
deficits of paternal parenting, according to all
reports he has been a devoted father to his two
children. In support of this, he was able to provide
me with immediate and exact date of birth of both
of his children. Other evidence of positive character
traits include reports from his minister at St. Luke’s
Baptist Church that he has attended church
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107

regularly with his family for most of his life. His
pastor has known him for 17 years and further
characterizes him as a devoted father and says,
‘He’s a top -of-the-line, superb father. He ’s crazy
about them (his two children) and they ’re crazy
about him.’ He states that Mr. Spencer was active in
the Youth Ministry of his church and the pastor has
ongoing visitation with Mr. Spencer at the jail.

“A further mitigating factor is that most of the
evidence supports the premise that the offense
he is charged with occurred under extreme
emotional duress in which the defendant feared
for his life. This may have been exacerbated by
the influence of drugs that he was under at the
time of the offense.”

(Trial C. 3468–69.)

Spencer was evaluated by two mental- health experts
before his trial, and trial counsel was privy to Dr.
Ackerson’s and Dr. Shealy’s findings. Again,

“[t]rial counsel had no reason to retain another
psychologist to dispute the first expert ’s findings.
‘A postconviction petition does not show
ineffective assistance merely because it presents a
new expert opinion that is different from the theory
used at trial.’ State v. Combs, 100 Ohio App. 3d 90,
103, 652 N.E. 2d 205, 213 (1994). See also State v.
Frogge, 359 N.C. 228, 244 –45, 607 S.E. 2d 627,
637 (2005). ‘Counsel is not ineffective for failing to
shop around for additional experts.’ Smulls v. State,
71 S.W.3d 138, 156 (Mo. 2002). ‘Counsel is not
required to “continue looking for experts just
because the one he has consulted gave an
unfavorable opinion.” Sidebottom v. Delo, 46 F.3d
744, 753 (8th Cir. 1995).’ Walls v. Bowersox, 151
F.3d 827, 835 (8th Cir. 1998).”

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108

Waldrop, 987 So. 2d at 1193.

Spencer failed to plead the full facts in regard to this claim,
and, thus, it was correctly summarily dismissed pursuant
to Rule 32.6(b), Ala. R. Crim. P. Moreover, assuming all
the pleaded facts are true, there was no material issue of
fact or law that would entitle Spencer to relief; therefore,
pursuant to Rule 32.7(d), Ala. R. Crim. P., this claim was
also due to be summarily dismissed.

Spencer R.32, 201 So. 3d at 601–03.
According to Mr. Spencer, “[t]he CCA’s summary dismissal of the mental
health expert component of this claim was . . . unreasonable, in that it was premised
on a facially deficient pretrial competence evaluation.” Doc. 21 at 49. Mr. Spencer
argues that Ake v. Oklahoma , 470 U.S. 68, 82 (1985), established his right to
evaluation by a n expert, who would then assist in the preparation of his defense.
Doc. 21 at 50. Mr. Spencer further argues that “counsel’s decision to merely have
Mr. Spencer examined for competence to stand trial was deficient performance”
because Ake requires more than just an evaluation. Id.
Mr. Spencer also argues that the ACCA “finding that Mr. Spencer failed to
plead prejudice [is] a[n in]correct statement of the record.” Id. “Mr. Spencer’s Rule
32 petition explained that his post-conviction psychiatric expert . . . would have told
the jury what Dr. Ackerson could not – that Mr. Spencer’s post- traumatic stress
disorder and the residual impacts of brain damage accounted for his belief that the
police posed an imminent threat to his life when he shot them.” Id.
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The ACCA did not unreasonably interpret Ake in determining that, even
“assuming all the pleaded facts” in Mr. Spencer’s Rule 32 petition were true, he was
not entitled to relief. Spencer R.32, 201 So. 3d at 603. As explained above, “ the
inadequate assistance of counsel . . . does not consist of the hiring of an expert who,
though qualified, was not qualified enough.” Hinton, 571 U.S. at 274–75. The court
cannot “launch . . . into examination of the relative qualifications of experts hired
and experts that might have been hired ” but instead may only examine “the
unreasonable failure to understand the resources that state law made available .”
Id. at 275.
Mr. Spencer’s counsel hired multiple experts to evaluate his mental health.
Spencer R.32, 201 So. 3d at 603. One expert, Allen E. Shealy, Ph.D., wrote that he
“found Mr. Spencer to be cognitively intact as indicated by a WAIS -III Verbal IQ
of 97 which is in the range of average intelligence, relative to the general U.S.
population.” Doc. 17-19 at 70. He further found that “[t]here [was] no evidence of
major brain dysfunction” and “no evidence of a major mental disorder which might
have mitigating value. ” Id. at 70 –71. Another expert , Dr. Kimberly Ackerson,
determined that Mr. Spencer was competent to stand trial. See id. at 70.
The State provided Mr. Spencer funds to pay all of these experts, and he was
given the benefit of their services . So t he State “at a minimum, assure[d] the
defendant access to a competent psychiatrist who . . . conduct[ed] an appropriate
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examination” of Mr. Spencer to assist his defense. Ake, 470 U.S. at 83. Accordingly,
Mr. Spencer is due no habeas relief on this claim.
ix. Failure To Object To Introducing Evidence of Prior Bad Acts
Mr. Spencer argues that trial counsel was ineffective because “counsel failed
to mount effective arguments” about why evidence of Mr. Spencer’s drug dealing,
gun possession, and arrest warrants “should have been excluded as not relevant to
the guilty/innocence phase determination.” Doc. 1 ¶ 120. According to Mr. Spencer,
“counsel should have requested that the jury be instructed on the limited purpose for
which this evidence could be used.” Id.
Warden Raybon responds that this claim is “not fully exhausted and [is]
therefore procedurally defaulted because [it] was not raised on appeal to the Court
of Criminal Appeals or in [Mr.] Spencer ’s petition for writ of certiorari in the
Alabama Supreme Court from the denial of the post-conviction petition.” Doc. 19 at
16–17. Mr. Spencer “concedes that [this claim is] procedurally defaulted” because
he raised it in his Rule 32 Petition but not “in his appeal challenging the dismissal
thereof,” so it was “not exhausted before the state appellate courts[.]” Doc. 21 at 4.
Mr. Spencer is thus due no habeas relief on this claim.
x. Failure To Subpoena “Key” Witness
Mr. Spencer next contends that trial counsel was ineffective for failing “to
adequately ensure ” a key witness’s testimony “ by properly subpoenaing him, or
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contacting [his] attorney to ensure his presence.” Doc. 1 ¶ 124. Mr. Spencer argues
that this “crucial witness,” Tyran (“Bubba”) Cooper, could have established why the
officers were at the apartment on the day of the shootings. Id. ¶ 123. And, Mr.
Spencer contends, “in requesting that the court issue an instanter subpoena, counsel
failed either to proffer the entirety of Cooper ’s expected testimony or to assert the
legal basis for its materiality when the court inquired whether Cooper ’s testimony
would be admissible.” Id. ¶ 125. “Thus, compounding the error of failing to ensure
Cooper would appear at Mr. Spencer’s trial, counsel rendered deficient performance
by failing to establish that Cooper’ s testimony was both favorable and material to
Mr. Spencer’s defense, which was necessary to obtain either an instanter subpoena
or a continuance.” Id. “Counsel also should have, but did not, argue that Cooper ’s
testimony was admissible because Mr. Spencer had a constitutional right . . . to
present a complete defense, which state law does not trump.” Id.
Mr. Cooper allegedly would have testified that he had an agreement with
Officers Owen and Chisolm, in which Mr. Cooper paid the officers not to interfere
with Mr. Cooper’s drug business and to provide advance notice of impending police
raids. Id. ¶ 126. Shortly before the shootings, “the price of these officers ’
cooperation increased from $1000 per week to $1500 per week when Cooper was
involved in an attempted murder plot[.] ” Id. Mr. Cooper allegedly would have
explained “that the officers’ protection of Cooper ’s drug business included
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protection of Mr. Spencer and Mr. Woods, who sold drugs in partnership with
Cooper from the green apartment[.]” Id. And when Mr. Cooper stopped paying the
officers, the officers allegedly threatened Mr. Cooper. Id.
Mr. Spencer argues that Mr. Cooper’s testimony would have shown that “the
presence of the police at the green apartments [on the day of the shootings] was for
an unlawful purpose related to retaliation for Cooper’s failure to continue paying
them[.]” Id. ¶ 127. But because defense counsel failed to secure Mr. Cooper ’s
testimony, “defense counsel had no ability to combat the State ’s evidence that the
officers were there to serve a legal arrest warrant.” Id. ¶ 124.
Mr. Spencer alleges that “[p]ost -conviction juror interviews have confirmed
that the jury foreperson . . . , among others, would have been persuaded of lesser
culpability during guilt-phase deliberations by evidence that the police were at the
green apartments to conduct illegal or corrupt activity.” Id. ¶ 128 n.119.
The ACCA addressed this issue:
Spencer next argues that his trial counsel was ineffective
for failing to subpoena Tyran “Bubba” Cooper, who
Spencer describes as a key witness. Specifically, he argues
that Cooper ’s testimony supported convictions for the
lesser offense of provocation manslaughter and that
counsel was ineffective for failing to ensure that Cooper
testified.

The circuit court made the following findings concerning
this claim:

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“Spencer cannot prove that he was prejudiced
because counsel failed to subpoena Tyran Cooper to
establish his provocation manslaughter defense.
The fact that Tyran Cooper was allegedly in a
dispute with the officers concerning bribes does not
show that Spencer was assaulted or faced with an
imminent assault when the officers entered the
house to arrest Woods. As the Court of Criminal
Appeals also noted, Spencer shot the first two
officers in the back as they were lawfully arresting
Woods, he made statements earlier in the day that
he would get the officers if they returned, and when
Spencer saw that the officers had returned, he
picked up his SKS assault rifle and sought out the
officers. Spencer [v. State ], 58 So. 3d [215,] 245
[(Ala. Crim. App. 2009)]. As the Court of Criminal
Appeals found, the words between Spencer and the
officers occurred hours between the initial visit
from the officers and their attempt to serve the arrest
warrant on Woods. In addition, the earlier
confrontation was between Woods and the officers
and did not involve Spencer. Tyran Cooper ’s
testimony would not have changed these facts.
Spencer is not entitled to an evidentiary hearing on
this claim because no ‘material issue of fact or law
exists’ which would entitle him to relief.”

(C. 77–78.)

The record of Spencer ’s trial shows that trial counsel
attempted to call Cooper as its last witness. On direct
appeal, this Court stated the following facts surrounding
this issue:

“In the present case, at approximately 4:45 p.m. on
Saturday, June 19, 2005, during the defense’s case,
the defense called Cooper as its final witness;
however, he was not present. Outside the hearing of
the jury, defense counsel informed the trial court
that the witness had not been subpoenaed because
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the witness had told defense counsel ‘on three or
four occasions he didn’ t need a subpoena. ’ (R.
1719.) Defense counsel requested a continuance
until 8:30 a.m. the following morning, and the trial
court recessed until 8:30 a.m. the following
morning.

“The following morning, defense counsel informed
the trial court that Cooper was again not present.
Defense counsel averred that a subpoena had been
issued on May 17, 2005, to secure the presence of
Cooper as a witness at trial. That subpoena was
returned u nserved on May 23, 2005, because
Cooper had not been located. According to defense
counsel, an alias was issued on May 25, 2005, but
defense counsel was unaware as to whether that
subpoena had been served. Defense counsel
informed the trial court that he had spoken with
Cooper on the telephone the day before; he stated
that Cooper claimed to have been unaware that he
was supposed to be in court and that Cooper wanted
to speak with his attorney before agreeing to testify
at Spencer ’s trial. Defense counsel averred that
members of Spencer’s family had spoken with
Cooper that morning and provided the trial court
with the address of the apartment where Cooper was
supposedly located at that time.... Cooper had
informed the family members that he did not wish
to testify at Spencer’s trial. The trial court instructed
defense counsel to telephone Cooper at the number
they had been given, but that number was the
general office number for the apartment complex,
rather than the specific apartment where Cooper
was allegedly located.

“Defense counsel requested that the trial court
issue an attachment to have Cooper picked up
and brought to court.”

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Spencer, 58 So. 3d at 235. Trial counsel then asked the
trial court to issue an instanter subpoena to Cooper. After
a lengthy discussion, the circuit court declined to delay the
trial. (Trial R. 1725–33.)

Attached to Spencer ’s postconviction petition is an
affidavit executed by Cooper. Cooper states that he openly
sold drugs from the apartment where the shooting
occurred, that he had an arrangement with police officers
whereby he would pay them not to disturb that business,
that, before the shootings, he had stopped paying the
officers, and that the officers had been coming by the
apartment frequently to try to collect money. Cooper did
not state, and Spencer does not allege in his postconviction
petition, t hat Cooper was present at the time of the
shooting. The contents of Cooper ’s affidavit did not
establish sufficient facts to support the elements of
provocation manslaughter.

Assuming all the facts as pleaded in Spencer’s petition are
true, “no material issue of fact or law exist[ed] which
would entitle [Spencer] to relief ” on this claim. Rule
32.7(d), Ala. R. Crim. P. This claim was correctly
summarily dismissed.

Spencer R.32, 201 So. 3d at 603–05.
Mr. Spencer argues that Mr. Cooper’s testimony was critical to his defense ,
and that he was deprived of his right to put on a “full defense.” Doc. 1 ¶ 125;
Doc. 21 at 51–55; see also United States v. Valenzuela-Bernal , 458 U.S. 858, 867
(1982); Washington v. Texas, 388 U.S. 14, 16 ( 1967). Mr. Spencer argues that the
ACCA unreasonably interpreted Valenzuela-Bernal or Washington by deciding that
Mr. Cooper’s testimony was immaterial. Doc. 21 at 52. According to Mr. Spencer,
“even if Mr. Cooper’s testimony did not help to prove provocation, it was admissible
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as relevant to establishing Mr. Spencer’s state of mind – that he lacked intent to
commit capital murder[,]” and “Mr. Cooper’s testimony was also material because
it would have disproved a key facet of the prosecution’s case — that police were
killed during the lawful course of performing their duties.” Id. at 53–54. Mr. Spencer
argues that Mr. Cooper’s testimony also “would have undermined the credibility of
a key prosecution witness — Michael Collins, the surviving officer.” Id. at 54. And
finally, “Mr. C ooper’s testimony [allegedly] would have dispelled [the
prosecution’s] myth and established that he, not Mr. Spencer, controlled the drug
operation.” Id. at 54–55.
In Valenzuela-Bernal, the Supreme Court described a defendant ’s burden to
establish a violation of compulsory process : “[The defendant] must at least make
some plausible showing of how their testimony would have been both material and
favorable to his defense.” 458 U.S. at 867. Without that showing, there can be “ no
Sixth Amendment violation.” Id. at 871.
The crux of the ACCA analysis is that because Mr. Cooper was not present
when the shooting occurred, his testimony was not material to Mr. Spencer ’s
defense. See Spencer R.32 , 201 So. 3d at 604–05. The ACCA concluded that Mr.
Cooper’s testimony “did not establish sufficient facts to support the elements of
provocation manslaughter,” id. at 605, so Mr. Cooper ’s Sixth Amendment right to
compulsory process was not violated.
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That conclusion is not an unreasonable interpretation of the law, nor an
unreasonable factual determination . T he testimony that Mr. Spencer ’s counsel
proffered when asking the trial court to issue an instanter subpoena closely mirrors
the testimony in Mr. Cooper’s affidavit. At trial, Mr. Spencer’s counsel said that Mr.
Cooper would testify that “he was the drug supplier ” for Mr. Spencer and Mr.
Woods’s drug dealing operation, and that he paid Officers Owen and Chisholm to
protect the operation from law enforcement. See Doc. 17-28 at 35–36. Mr. Cooper’s
affidavit contains la rgely the same testimony , albeit with more detail, and Mr.
Cooper does not there testify that he was present when these shootings occurred. See
generally Doc. 1-1. Mr. Cooper’s affidavit is not probative regarding whether “(1)
[Mr. Spencer] witnesse[d] his . . . spouse in the act of adultery; (2) [Mr. Spencer
was] assaulted or faced with an imminent assault on himself; [or] (3) [Mr. Spencer]
witnesse[d] an assault on a family member or close relative.” Spencer I, 58 So. 3d at
245 (quoting Rogers v. State , 819 So. 2d 643, 662 (Ala. Crim. App. 2001)).
Therefore, his testimony was not material to Mr. Spencer’s attempt to receive a jury
instruction on a lesser included offense or self-defense, see Valenzuela-Bernal, 458
U.S. at 867 , and the ACCA did not err in its review of Mr. Spencer ’s Rule 32
petition.
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xi. Failure To Argue Governmental Interference W ith Material
Defense Witness
Mr. Spencer argues that trial counsel was ineffective when counsel failed to
pursue appropriate relief “when they knew for certain that Cooper would not testify
for the defense at Mr. Spencer’s trial because he had been threatened by government
officials.” Doc. 1 ¶ 139. Mr. Spencer contends that “[g]overnment officials
threatened Cooper by telling him that he would face enhanced criminal charges and
a longer prison sentence in his own case if he testified at trial on Mr. Spencer ’s
behalf.” Id. ¶ 135.
Before the shootings that form the basis of Mr. Spencer’s convictions , Mr.
Cooper was involved in a shooting that injured two people. Id. ¶ 136. “Birmingham
prosecutors charged Cooper with attempted murder . . . , and federal prosecutors
subsequently indicted Cooper for being a felon in possession of a firearm. ” Id. But
“Cooper had been told that he was facing a probationary sentence.” Id. “After that,
as Mr. Spencer’s June 2005 trial approached and prosecutors became aware that
[Mr.] Cooper would testify in Mr. Spencer ’s defense, public officials threatened
enhanced punishments for Cooper, including three life terms or sixty five years.” Id.
A detective allegedly told Mr. Cooper ’s wife “that law enforcement would bury
Cooper ‘under the jail,’ because of his involvement with the murder of [the] police
officers[.]” Id. And “when Cooper did not testify at Mr. Spencer ’s trial, . . . state
prosecutors ultimately allowed Cooper to plead guilty to assault in the first degree,
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a class B felony.” Id. ¶ 138. Because of his federal and state pleas, “Cooper served
relatively little time in prison for his crime and has already been released on
probation.” Id.
According to Mr. Spencer, “[t]rial counsel . . . knew that Cooper had been
threatened by Detective Russell because Cooper told him so specifically prior to Mr.
Spencer’s trial.” Id. ¶ 137. And “[i]f counsel had presented and proven the claim . . .
when it became evident that Cooper would not testify, Mr. Spencer would have been
entitled to a mistrial and to a new trial.” Id. ¶ 139.
The ACCA addressed this issue:
Spencer next argues that his counsel was ineffective for
failing to object to what he says was the State ’s
interference with a material witness. Specifically, Spencer
pleaded that a detective threatened Cooper against
cooperating with Spencer’s trial counsel and warned that
he would face a lengthier sentence if he testified at
Spencer’s trial.

The circuit court stated the following concerning this
claim:

“The facts as pleaded do not entitle Spencer to relief
because he cannot prove— with these facts—that he
was prejudiced by counsel’ s alleged
ineffectiveness. As the Court of Criminal Appeals
found concerning Cooper ’s testimony: ‘[A]s the
trial court noted, there was some question as to
whether the testimony [of Cooper], as proffered,
would have even been admissible. The witness did
not see the shootings; moreover, there was no
indication that the witness was going to testify as to
any specific communications between himself and
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the accused that would support a self -defense
argument.’ Spencer, 58 So. 3d 215, 239. In addition,
the record clearly shows that Spencer was not acting
in self-defense when he murdered Officers Owen,
Chisolm, and Bennett and when he attempted to
murder Officer Collins. The officers were not
involved in any unlawful attempt to arrest Nathaniel
Woods. In fact, they informed Woods that they had
an arrest warrant for him and that he was under
arrest based on this outstanding warrant. When
Woods turned and ran into the apartment, the
officers entered the apartment to arrest him. They
did not have their guns drawn when they entered the
apartment to arrest him. They did not have their
guns drawn when Spencer started firing on them. In
fact, the officers ’ attention was completely on
arresting Woods when Spencer began firing the
SKS assault rifle at them. There is absolutely
nothing in the record that indicates that the officers
made Spencer fear for his life when they entered the
apartment. Their weapons were not drawn and their
attention was focused solely on Woods.

“They never even attempted to approach
Spencer. In fact, the officers did not attempt to
use any force against Spencer, much less
excessive force. Spencer was asleep on the
couch when the officers entered the apartment.
When Spencer heard a noise, he got up and
looked out the bedroom window to see what
was happening. He saw Woods and started
firing on the officers. Spencer did not stop firing
until all of the officers were down. Because
Spencer was not acting in self -defense, he was
not prejudiced when his attorney failed to
present evidence that the State interfered with
the testimony of Tyran Cooper.”

(C. 78–80.)

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The circuit court’s findings are supported by the record. In
his petition, Spencer failed to plead facts that, if true,
would establish prejudice under Strickland. See Rule
32.6(b), Ala. R. Crim. P. Accordingly, he failed to meet
his burden to plead the full factual basis of his claim and
summary dismissal was appropriate. See id.; Rule 32.7(d),
Ala. R. Crim. P.

Spencer R.32, 201 So. 3d at 605–06.
According to Mr. Spencer, the ACCA “construed the facts adversely to Mr.
Spencer, essentially finding that he could not have acted in self-defense based on the
evidence adduced at trial.” Doc. 21 at 56. But, Mr. Spencer argues, “[n]one of these
reasons justify summary dismissal[]” because Mr. Cooper’s testimony was relevant
and “Mr. Spencer did allege sufficient prejudice [.]” Id. Mr. Spencer contends that
“[h]aving alleged precisely how and why the government substantially interfered
with Mr. Cooper’s willingness to voluntarily testify as a material defense witness,
Mr. Spencer demonstrated that he was prejudiced by counsel’s error.” Id. at 57.
Mr. Spencer also argues that the ACCA decision unreasonably applied the law
as decided in Webb v. Texas , 409 U.S. 95, 97 (1972) . Doc. 1 ¶ 139. In Webb, the
Supreme Court reversed a conviction after the trial judge admonished a defense
witness that his testimony could be used against him , and that lying on the stand
“would get [the witness] convicted of perjury and that [the conviction] would be
stacked onto” the witnesses other criminal charges. 409 U.S. at 96. That admonition
caused the witness to refuse to testify, id., and the Supreme Court held that “the
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judge’s threatening remarks, directed only at the single witness for the defense,
effectively drove that witness off the stand, and thus deprived the petitioner of due
process of law under the Fourteenth Amendment,” id. at 98.
But the ACCA had no occasion to apply Webb in Mr. Spencer’s case, as there
is no indication that the trial court admonished Mr. Cooper such that he refused to
testify. Indeed, Mr. Cooper never appeared in court. Mr. Spencer has identified no
other Supreme Court precedent that would support his contention that the
government’s alleged threats to Mr. Cooper deprived Mr. Spencer of his rights. And
in any event, the ACCA found that Mr. Spencer’s counsel was not ineffective for
failing to object because Mr. Coop er’s testimony would not have materially
benefitted Mr. Spencer at trial. See Spencer R.32, 201 So. 3d at 605–06. This was
not an unreasonable determination of the facts in Mr. Spencer’s case. For the reasons
set forth in Part III. A.1.x, the ACCA reasonably conclude d that Mr. Cooper ’s
testimony would not have provided a basis for jury instructions on lesser-included
offenses or self-defense, so Mr. Spencer was not prejudiced by his counsel’s asserted
failures.
xii. Failure To Object To The Trial Court’s Failure To Instruct Jury
On Both Voluntary Intoxication And Manslaughter Defense
Mr. Spencer argues that even though trial counsel “requested, and were
granted, an instruction on voluntary intoxication and manslaughter[,] ” trial
“[c]ounsel did not object to the court ’s lapse” when the court failed to charge the
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jury on those things. Doc. 1 ¶ 140. Because the court “did not accept Mr. Spencer’s
self-defense theory[,]” id. ¶ 143, voluntary intoxication was Mr. Spencer ’s “only
remaining, viable defense,” and “[t]he Court apparently accepted that there was
sufficient evidence to instruct the jury of this defense [,]” id. ¶ 144. “Yet, with no
other defense available, . . . defense counsel inexplicably failed to object when the
Court failed to give the requested instruction.” Id.
And, Mr. Spencer contends, trial counsel “fail[ed] to adequately argue for the
appropriateness of lesser included instructions” and “failed to adequately marshal
the evidence in support of such . . . instruction[s.] ” Id. ¶¶ 149, 151. “That failure
denied the jury the option of convicting Mr. Spencer of the lesser included offense .
. . .” Id. ¶ 140. Instead, “the jury were trapped between the only two possible verdicts
— acquittal and guilt of capital murder — and used the penalty phase to ameliorate
their forced guilty verdict.” Id. ¶ 148.
Mr. Spencer argues that “[t]here is a reasonable probability that, hearing this
evidence, the jury would have found Mr. Spencer was intoxicated at the time of the
shootings.” Id. ¶ 147. “[T]he fact that the trial court granted counsel ’s request to
instruct the jury on this issue indicates that the court —which was able to hear and
see, and weigh the credibility of the evidence and witnesses firsthand —found this
evidence was sufficient.” Id.
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Further, Mr. Spencer contends that “[c]ounsel was ineffective for failing to
obtain lesser included instructions on heat- of-passion manslaughter. ” Id. ¶ 150.
“Given the evidence presented at trial, that Mr. Spencer feared for his life and
believed that he would be shot and killed, such an instruction was entirely
appropriate.” Id. ¶ 151. “However, trial counsel failed to adequately marshal the
evidence in support of such an instruction, and failed to provide the trial court with
the proper legal standard governing the decision to submit a lesser included
instruction to the jury.” Id. “Although counsel requested such instructions, and the
judge seemed to agree that there was some evidence of intoxication, counsel failed
to adequately marshal the totality of the evidence in support of such an instruction
. . . .” Id. ¶ 152.
T he ACCA addressed this issue:
Spencer next argues that his trial counsel was ineffective
for failing to object to the trial court ’s failure to instruct
the jury on voluntary intoxication and on heat-of -passion
manslaughter.

The circuit court stated the following concerning this
claim:

“Spencer requests an evidentiary hearing on his
claims that counsel were ineffective because they
did not object when the trial court failed to instruct
the jury on voluntary intoxication and manslaughter
and failed to request that the trial court charge the
jury on heat of passion manslaughter.

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“An evidentiary hearing is denied on this claim
because the claim is insufficiently pleaded. Spencer
alleges that his attorneys were ineffective because
they failed to adequately argue for the lesser -
included jury instructions of heat of passion
manslaughter and intoxication. However, Spencer
failed to set forth what evidence would support
these instructions.

“Spencer’s request for an evidentiary hearing on
these claims is also denied because no material issue
of fact or law exists concerning these claims.
Spencer raised the underlying claims on direct
appeal and the Court of Criminal Appeals rejected
the claims. Spencer, 58 So. 3d 215, at 230– 232,
244–245. In denying relief on Spencer’s claims that
the trial court failed to instruct the jury on voluntary
intoxication and manslaughter, the Court of
Criminal Appeals declined to find plain error
because Spencer ‘failed to establish any evidentiary
foundation of intoxication that would warrant an
instruction on intoxication.’ Id., at 230 –232. This
Court recognizes that a finding of no plain error on
direct appeal does not foreclose Spencer from
arguing that he was prejudiced by his counsel ’s
failure to object when the trial court failed to g ive
the jury instructions on intoxication and
manslaughter. Ex parte Taylor, 10 So. 3d 1075,
1078 (Ala. 2005). Spencer, however, has not
pleaded any facts whatsoever in his Rule 32 petition
that would show that his is this ‘rare case.’ The
Court of Criminal Appeals also rejected Spencer ’s
claim that the trial court erred when it refused to
charge the jury on heat-of -passion manslaughter
and on voluntary intoxication. Id., at 230–232, 244–
245. The grounds which underlie Spencer ’s
ineffective assistance of counsel claim have already
been held to be without merit, and, as a result, this
claim should be dismissed as a matter of law and
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Spencer is not entitled to an evidentiary hearing on
the claim.

“Spencer set forth new facts to establish counsel ’s
ineffectiveness for failing to request these jury
instructions. However, the new facts in support of
these defenses would not entitle Spencer to jury
instructions on these defenses. The new facts are
insufficient to show that, at the time he murdered
the three police officers, Spencer was intoxicated to
the point of insanity. In fact, Spencer does not even
allege in the Rule 32 petition that he was suffering
from any of the side effects from the combinatio n
of drugs he was taking when he murdered the three
police officers — just that these are possible side
effects from these drugs. Counsel’s performance,
therefore, was not deficient because they failed to
present this evidence to support jury instructions on
voluntary intoxication and manslaughter.

“In addition, Spencer’s claim that he was prejudiced
by counsel’s failure to present this evidence and
request these jury instructions does not present a
material issue of fact or law because his actions
during this crime show that he was not intoxicated
to the point of insanity. When Spencer heard a
commotion outside, he went to the bedroom
window to see what was going on. When Spencer
saw the officers in the apartment, he started
shooting and did not stop shooting until all the
officers were down. He walked to the back door of
the apartment and saw Officer Collins. He shot at
Officer Collins to make sure that he was not a threat
to him. When he left the apartment, he went to a
house down the street where he hid in the attic to
avoid the police. Spencer ’s actions during the
murders of the police officers clearly reveal that he
was not functioning as someone who was
intoxicated to the point of insanity but as someone
who understood what he was doing and was aware
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of the consequences of his actions. Because
Spencer’s actions during the murders show that he
was not intoxicated to the point of insanity, he
cannot prove that he was prejudiced by counsel ’s
failure to present evidence concerning his cocaine,
alcohol, and pill use and to request jury instructions
to support this defense.

“For the reasons set forth above, Spencer’s request
for an evidentiary hearing on these claims is denied
because no ‘material issue of fact or law exists’
which would entitle him to relief.”

(C. 96–99.)
Spencer R.32, 201 So. 3d at 606–07.
As to Mr. Spencer ’s claim that trial counsel was ineffective for failing to
object to the lack of instructions, the ACCA wrote:
Spencer first argues that the circuit court erroneously
dismissed his claim that trial counsel was ineffective for
failing to object when the circuit court did not instruct the
jury on intoxication as a defense to capital murder. This
Court disagrees.

In Smith v. State, 756 So. 2d 892 (Ala. Crim. App. 1997),
this Court recognized:

“‘While voluntary intoxication is never a defense to
a criminal charge, it may negate the specific intent
essential to a malicious killing and reduce it to
manslaughter. § 13A–3–2, Code of Alabama (1975)
(Commentary). “ ‘When the crime charged involves
a specific intent, such as murder, and there is
evidence of intoxication, the trial judge should
instruct the jury on the lesser included offense of
manslaughter.’ Gray v. State, 482 So. 2d 1318, 1319
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(Ala. Cr. App. 1985).” [McNeill] v. State, 496 So.
2d 108, 109 (Ala. Cr. App. 1986).’

“[McConnico v. State,] 551 So. 2d [424,] 426 [(Ala. Crim.
App. 1988)]. However, to negate the specific intent
required for a murder conviction, the degree of the
accused’s intoxication must amount to insanity.

“‘“In an assault and battery case, voluntary
intoxication is no defense, unless the degree of
intoxication amounts to insanity and renders the
accused incapable of forming an intent to injure.
Lister v. State, 437 So. 2d 622 (Ala. Cr. App.
1983). The same standard is applicable in
homicide cases. Crosslin [v. State, 446 So. 2d
675 (Ala. Cr. App. 1983)]. Although
intoxication in itself does not constitute a
mental disease or defect within the meaning of
§ 13A –3–1, Code of Alabama 1975,
intoxication does incl ude a disturbance of
mental or physical capacities resulting from the
introduction of any substance into the body. §
13A–3–2. The degree of intoxication required
to establish that a defendant was incapable of
forming an intent to kill is a degree so extreme
as to render it impossible for the defendant to
form the intent to kill ....”

“‘Ex parte Bankhead, 585 So. 2d 112, 121 (Ala.
1991).’

“Smith v. State, 646 So. 2d 704, 712–13 (Ala. Cr. App.
1994).”

Smith, 756 So. 2d at 906. Further, on direct appeal, this
Court explained the following regarding Spencer ’s
intoxication defense:

“Generally, where there is evidence of intoxication
and the charged offense involves specific intent,
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such as capital murder, the trial court should instruct
the jury on the lesser -included offense of
manslaughter. See Pilley v. State, 930 So. 2d 550,
562 (Ala. Crim. App. 2005).

“‘“A charge on intoxication should be given if
‘“there is an evidentiary foundation in the
record sufficient for the jury to entertain a
reasonable doubt ” ‘in the element of intent.
Coon v. State, 494 So. 2d 184, 187 (Ala. Crim.
App. 1986) (quoting Government of the Virgin
Islands v. Carmona, 422 F.2d 95, 99 n. 6 (3d
Cir. 1970)). See also People v. Perry, 61 N.Y.2d
849, 473 N.Y.S.2d 966, 966 –67, 462 N.E.2d
143, 143 –44 (App. 1984) ( ‘[a] charge on
intoxication should be given if there is sufficient
evidence of intoxication in the record for a
reasonable person to entertain a doubt as to the
element of intent on that basis’). An accused is
entitled to have the jury consider the issue of his
intoxication where the evidence of intoxication
is conflicting, Owen v. State, 611 So. 2d 1126,
1128 (Ala. Crim. App. 1992); Crosslin v. State,
446 So. 2d 675, 682 (Ala. Crim. App. 1983),
where the defendant denies the commission of
the crime, Coon v. State, 494 So. 2d at 187; see
Moran v. State, 34 Ala. App. 238, 240, 39 So.
2d 419, 421, cert. denied, 252 Ala. 60, 39 So. 2d
421 (1949), and where the evidence of
intoxication is offered by the State, see Owen v.
State, 611 So. 2d at 1127–28.”

“‘Pilley v. State, 930 So. 2d 550, 561 –62 (Ala.
Crim. App. 2005).

“‘However, the court should charge on voluntary
intoxication only when there is a sufficient
evidentiary foundation in the record for a jury to
entertain a reasonable doubt as to the element of
intent. Ex parte McWhorter, 781 So. 2d 330, 342
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(Ala. 2000). In Pilley, this Court provided guidance
as to what evidence would be required to form that
evidentiary foundation.

“‘“The Alabama Legislature has defined
‘intoxication’ to include ‘a disturbance of
mental or physical capacities resulting from the
introduction of any substance into the body. ’ §
13A–3–2(c)(1), Ala. Code 1975. Thus,
evidence that the defendant ingested alcohol or
drugs, standing alone, does not warrant a charge
on intoxication. ‘[T]here must be evidence that
the ingestion caused a disturbance of the
person’s mental or physical capacities and that
that mental or physical disturbance existed at
the time the off ense was committed. ’ Lee v.
State, 898 So. 2d 790, 838 (Ala. Crim. App.
2001) (opinion on return to remand), cert.
denied, 898 So. 2d 874 (Ala.), cert. denied, 543
U.S. 924, 125 S. Ct. 309, 160 L. Ed. 2d 222
(2004). See also Maples v. State, 758 So. 2d 1,
23 (Ala. Crim. App.), aff’d 758 So. 2d 81 (Ala.
1999). Such a holding is consistent with this
Court’s opinion in Windsor v. State, 683 So. 2d
1027, 1037 (Ala. Crim. App. 1994), aff’d, 683
So. 2d 1042 (Ala. 1996), in which we stated:

“‘“‘In this case, however, there was no evidence
that the appellant was intoxicated. Although
there was evidence that the appellant had been
drinking beer on the day of the robbery-murder,
there was no evidence concerning the quantity
of beer he consumed that day at the time of the
murder. Evidence that someone was drinking an
alcoholic beverage is not evidence that that
person was intoxicated. There was no
“reasonable theory” to support an instruction on
intoxication because there was no evidence of
intoxication. The court did not err in not
instructing the jury on intoxication and
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manslaughter where there was no evidence that
the appellant was intoxicated at the time the
robbery-murder occurred.’”

“‘Pilley, 930 So. 2d at 563.’

“Harris v. State, 2 So. 3d [880, 911 (Ala. Crim.
App. 2007)]. Thus, ‘“[u]nder § 13A –1–9(b), Ala.
Code 1975, a trial judge is not required to instruct
on a lesser- included offense ‘ unless there is a
rational basis for a verdict convicting the defendant
of the included offense.’”’ Harris, 2 So. 3d at 912,
quoting Pilley, 930 So. 2d at 563.

“Here, Spencer presented evidence indicating that
he had ingested narcotics and alcohol the night
before the shootings and the morning of the
shootings. Spencer testified that at the time of the
shootings, he had a cocaine habit of ‘about six to
seven grams a day.’ (R. 1647.) When asked whether
he had taken any narcotics on the morning of the
shootings, Spencer stated:

“‘Yes, I did. You know, I had a little bit of
[cocaine] powder left over from the night
before. But the night before, we really did a lot
of cocaine. And, you know, I probably didn’t go
to sleep until about 4 in the morning, you know,
just dozed off.’

“(R. 1675–76.) Spencer further stated that sometime
shortly after 9:00 a.m. on the morning of the
shootings, he took a Seroquel tablet and drank a
beer to help him go to sleep. (R. 1676.) Finally, in
an interview with the police after his arrest, Spencer
stated that he was ‘ high’ at the time of his arrest.
However, this evidence alone does not constitute
evidence indicating that Spencer was intoxicated at
the time of the shootings. Spencer did not claim to
be intoxicated at the time of the shootings. There
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was no evidence concerning the effects, if any, that
the amounts of cocaine and other substances
allegedly ingested the night before and morning of
the shootings had on Spencer at the time of the
shootings. Rather, based on the evidence presented
at trial, Spencer failed to establish any evidentiary
foundation of intoxication that would warrant an
instruction on intoxication. There was simply
insufficient evidence from which a jury could have
found beyond a reasonable doubt that Spencer was
unable to form the requisite intent to commit capital
murder, because he was experiencing ‘a disturbance
of mental or physical capacities, ’ resulting from
drug or alcohol use at the time of the murders.
Because there was no rational basis for an
instruction on voluntary intoxication, we find no
plain error in the trial court’s failure to instruct the
jury on voluntary intoxication or reckless
manslaughter as a lesser-included offense.”

Spencer, 58 So. 3d at 231–32.

In his Rule 32 petition, Spencer failed to meet his burden
of pleading facts that, if true, would establish that counsel
was ineffective for failing to object to the circuit court’ s
not instructing the jury on intoxication as a defense.
Spencer failed to plead the quantity drugs and alcohol he
had ingested before the murders. See Connally, 33 So. 3d
at 622–23 (“Likewise, Connally’s bare allegation that he
had been ‘drinking heavily’ on the night of the crime was
not sufficient to indicate that intoxication would have been
a viable defense to the murder charge.... Connally failed to
allege how much he had to drink the night of the crime,
how long before the crime he had been drinking, or any
other facts indicating that his alleged intoxication
amounted to insanity.”). Nor did he plead facts that, if true,
would establish that he was intoxicated to the point that he
could not form the intent to kill, i.e., that his intoxication
rose to the level of insanity. See Ex parte McWhorter, 781
So. 2d 330, 342 –43 (Ala. 2000) (recognizing that
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intoxication necessary to negate specific intent must
amount to insanity). Consequently, Spencer failed to meet
his burden to plead the full factual basis of this claim, and
the circuit court correctly dismissed it pursuant to Rules
32.3; 32.6(b); and 32.7(d), Ala. R. Crim. P.

Spencer R.32, 201 So. 3d at 607–10.
As to Mr. Spencer’s allegation that his trial counsel failed to argue adequately
for the jury instructions, the ACCA wrote:
Spencer next argues that the circuit court erroneously
dismissed his claim that trial counsel was ineffective for
failing to argue adequately that he was entitled to a jury
instruction on heat- of-passion manslaughter. This Court
disagrees.

On direct appeal, this Court stated the following regarding
Spencer’s claim that he was entitled to an instruction on
provocation manslaughter:

“Spencer next contends that the trial court erred in
refusing to instruct the jury on heat- of-passion
manslaughter as a lesser-included offense.

“Section 13A–6– 3, Ala. Code 1975, states, in
pertinent part:

“‘(a) A person commits the crime of
manslaughter if:
“‘....
“‘(2) He causes the death of another person
under circumstances that would constitute
murder under Section 13A–6–2; except, that he
causes the death due to a sudden heat of passion
caused by provocation recognized by law, and
before a reasonable time for the passion to cool
and for reason to reassert itself.’

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“(emphasis added.) It is well settled that even where
the defendant commits the killing due to a sudden
heat of passion, an instruction on manslaughter is
properly refused where there is no evidence that that
sudden heat of passion was caused by a provocation
recognized by law. Harrison v. State, 580 So. 2d 73,
74 (Ala. Crim. App. 1991).

“‘“Alabama courts have, in fact, recognized
three legal provocations sufficient to reduce
murder to manslaughter: (1) when the accused
witnesses his or her spouse in the act of
adultery; (2) when the accused is assaulted or
faced with an imminent assault on himself; and
(3) when the accused witnesses an assault on a
family member or close relative.’

“‘Rogers v. State, 819 So. 2d 643, 662 (Ala. Crim.
App. 2001).

“‘“‘[Section] 13A–6–3(a)(2) is designed to
cover those situations where the jury does not
believe a defendant is guilty of murder but also
does not believe the killing was totally justified
by self-defense.’ Shultz v. State, 480 So. 2d 73,
76 (Ala. Crim. App. 1985). See also Shiflett v.
State, 507 So. 2d 1056 (Ala. Crim. App. 1987).

“‘“‘To constitute adequate legal provocation, it
must be of a nature calculated to influence the
passions of the ordinary, reasonable man....’

“‘““Biggs v. State, 441 So. 2d 989, 992 (Ala.
Crim. App. 1983).”

“‘Hafford v. State, 674 So. 2d 1386, 1390 (Ala.
Crim. App. 1995).’

“Peraita v. State, 897 So. 2d 1161, 1198 (Ala. Crim.
App. 2003).
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“Here, based on the evidence supporting Spencer’s
theory of events, the events leading up to the
shootings, even if creating a sense of passion or
mental or emotional imbalance, did not constitute a
legally recognized provocation. It is apparent that
neither the first (accused witnesses his spouse
committing adultery) nor the third (accused
witnesses an assault on a family member or close
relative) legally recognized provocation is
applicable in this case. As to whether the second
legally recognized provoca tion (whether Spencer
was assaulted or faced with an imminent assault on
himself) is applicable under the facts of this case,
we have reviewed the evidence and answer that
question in the negative.

“Even assuming, without finding as true, Spencer’s
contentions that the officers made remarks during
the earlier encounter that caused Spencer to fear that
the officers would hurt or kill him, those comments
were made hours before the final encounter where
the officers were killed. Additionally, the init ial
arguments were between Woods and officers;
Spencer willingly joined in the verbal jousting, and
again continued his verbal sparring with a second
officer even though the first officer had, according
to Spencer, made threatening comments. Further,
the f irst two officers Spencer encountered during
the final and fatal engagement were shot repeatedly
in the back while attempting to exercise a lawful
arrest on Woods. The evidence also indicates that
Spencer made statements following the earlier
encounters with the officers that if the officers
returned he would ‘bust ‘em’ (R. 913), and that
‘they was gonna get’ the officers if they returned.
(R. 1638.) Additionally, Spencer, knowing that the
officers had returned because he looked out the
window, exacerbated the situation by intentionally
grabbing his loaded SKS assault rifle and
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proceeding toward the commotion in the kitchen.
This evidence further militates against any
contention that the murders were committed in a
sudden passion and thus warranted such a jury
instruction. Because the evidence did not support a
charge on heat- of-passion manslaughter, the trial
court properly rejected Spencer’s request for such a
charge.”

Spencer, 58 So. 3d at 244–45.

In his Rule 32 petition, Spencer failed to meet his burden
of pleading facts that, if true, would establish that counsel
was ineffective for failing to argue adequately that he was
entitled to a jury instruction on heat- of-passion
manslaughter. In his peti tion, Spencer argued that “trial
counsel failed to adequately marshal the evidence in
support of such an instruction,” but he failed to plead what
evidence supported a heat -of-passion-manslaughter
instruction. (C. 690.) Spencer failed to allege facts that, if
true, would establish that he was faced with an imminent
assault. In fact, Spencer failed to allege any facts that
would indicate that he was entitled to a jury instruction on
heat-of-passion manslaughter. Consequently, Spencer
failed to meet his burden to plead the full factual basis of
this claim, and the circuit court correctly dismissed it
pursuant to Rules 32.3; 32.6(b); and 32.7(d), Ala. R. Crim.
P.

Spencer R.32, 201 So. 3d at 610–11.
Mr. Spencer argues that these “factual determinations [were] objectively
unreasonable” because “the record substantiated the trial court’s finding that there
was sufficient evidence to warrant giving a voluntary intoxication instruction under
Alabama law.” Doc. 21 at 59. Specifically, “[t]he Rule 32 petition summarizes Mr.
Spencer’s trial testimony, in which he acknowledged that he habitually ingested
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several grams of cocaine, prescription pills, marijuana, and alcohol in the days
preceding, and on the day of, the offense.” Id. And, Mr. Spencer argues, “[s]ince it
also required more than some evidence of intoxication (as opposed to overwhelming
evidence) to warrant deeming omission of the instruction prejudicial, the CCA’s
decision was also contrary to, and an objectively unreasonable application of,
Strickland and Beck.” Id. at 60.
Similarly, as to the heat of passion manslaughter defense, Mr. Spencer
contends that “[t]he state court decision was contrary to and an unreasonable
application of clearly established federal law because it imposed a more stringent
standard than Supreme Court precedent allows.” Id. at 63. According to Mr. Spencer,
his “testimony furnished the evidentiary basis for an instruction on heat of passion
manslaughter because he thoroughly explained how the officers’ threats throughout
the day placed in him fear of an imminent, deadly assault[,]” which “was sufficient
to raise the issue under Alabama law.” Id. Mr. Spencer argues that “ the Alabama
courts have set the bar higher than Beck or Mullaney allow by requiring defendants
to provide substantial proof of provocation or to affirmatively refute the State’s proof
of premeditation to get an instruction.” Id. at 64.
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Despite Mr. Spencer’s request that this court review de novo the ACCA ruling
on part of this claim, 7 AEDPA deference controls the court’s review of the entire
claim.
The only Supreme Court caselaw that Mr. Spencer says the ACCA
unreasonably applied here is Beck v. Alabama , 447 U.S. 625 (1980). But for the
reasons discussed in Part III.B.2.i, Beck does not help Mr. Spencer. Further, the
ACCA did not unreasonably interpret the facts on this issue . Mr. Spencer did not
present sufficient evidence to warrant a jury instruction on voluntary intoxication,
provocation, or self-defense, for the reasons discussed in Part III.B.2., so he suffered
no prejudice from any of his counsel’s asserted errors.
Mr. Spencer is thus due no habeas relief on this claim.
xiii. Failure To Ensure Complete Appellate Record

7 The ACCA extensively discussed its ruling on Mr. Spencer’s direct appeal that
“[t]here was no evidence concerning the effects, if any, that the amounts of cocaine
and other substances allegedly ingested the night before and morning of the
shootings had on [Mr.] Spencer at the time of the shootings” before noting that his
Rule 32 petition did not “plead facts, if true, [that] would establish that he was
intoxicated to the point that he could not form the intent to kill. Spencer R.32, 201
So. 3d at 609–10. So that court did address his claims about voluntary intoxication,
and it concluded that he would not have been entitled to a voluntary intoxication jury
instruction even with an objection from his counsel. And the court similarly
discussed its ruling on direct appeal that Mr. Spencer was not entitled to a lesser
included instruction, concluding that an objection from counsel would have made
no difference because the facts did not entitle Mr. Spencer to such an instruction. Id.
at 610–11.
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Mr. Spencer contends that trial counsel was ineffective because “[c]ounsel
failed to guarantee a complete appellate record by ensuring that a transcription of all
proceedings in this case were accurately transcribed. ” Doc. 1 ¶ 154. Specifically,
“[t]rial counsel acceded to the omission of juror questionnaires and the strike list
from the appellate record.” Id. This allegedly “made it impossible for Mr. Spencer .
. . to present a Batson claim on direct appeal or to pursue a colorable ineffective
assistance of counsel claim premised on Batson in Rule 32.” Id. ¶ 155.
Warden Raybon responds that this claim is “not fully exhausted and [is]
therefore procedurally defaulted because [it] was not raised on appeal to the Court
of Criminal Appeals or in [Mr.] Spencer ’s petition for writ of certiorari in the
Alabama Supreme Court from the denial of the post-conviction petition.” Doc. 19 at
16–17. Mr. Spencer “concedes that [this claim is] procedurally defaulted” because
he raised it in his Rule 32 Petition but not “in his appeal challenging the dismissal
thereof,” so it was “not exhausted before the state appellate courts[.]” Doc. 21 at 4.
Mr. Spencer is thus due no habeas relief on this claim.
xiv. Guilt-Phase Error Cumulative Effect
Mr. Spencer contends that the cumulative effect of trial counsel’ s allegedly
ineffective performance during the guilt phase of his trial violated the Constitution.
Doc. 1 ¶¶ 157, 158. According to Mr. Spencer, “the state court evaluated each of the
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above allegations of ineffectiveness individually” but failed to “review[] the impact
of accumulated errors.” Id. ¶ 158. This is not so.
The ACCA addressed cumulative errors as follows:
Spencer next argues that the cumulative effect of counsel’s
errors resulted in prejudice to him.

The circuit court stated the following concerning this
claim:

“Spencer’s claim that the cumulative effect of
counsel’s errors denied him his right to the effective
assistance of counsel during the penalty phase of the
trial is not sufficiently pleaded, therefore, his
request for an evidentiary hearing is denied.
Spencer does not specifically identify what errors
should b e considered cumulatively and does not
allege how the cumulative effect of any errors
denied him the effective assistance of counsel.”

(C. 102.) This Court agrees that Spencer ’s claim relating
to the cumulative effect of counsel’s alleged errors was
insufficiently pleaded. Because Spencer failed to plead
sufficient facts that would entitle him to relief, this claim
was correctly dismissed without a hearing. See Rule
32.6(b), Ala. R. Crim. P.

Spencer R.32, 201 So. 3d at 617.

As detailed throughout Part III.A.1., counsel’s representation of Mr. Spencer
throughout the guilt phase of his trial was objectively reasonable. And e ven if Mr.
Spencer’s counsel err ed in some specific respect, the evidence adduced at trial
foreclosed an instruction on lesser -included offenses under Alabama law . This left
the jury with the binary decision whether Mr. Spencer was guilty as charged or not
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guilty as charged, and Mr. Spencer admitted his guilt. Accordingly, the record
supplies no basis for a finding that Mr. Spencer’s counsel accumulated errors, nor
that such accumulation prejudiced him. Mr. Spencer is due no habeas relief on this
claim.
2. Penalty Phase And Sentencing Ineffectiveness
Mr. Spencer raises eight issues with his counsel ’s assistance during the
penalty phase of his trial. See Doc. 1 at 78–123. The court addresses each in turn.
i. Failure To Investigate And Present Mitigation Evidence During
Penalty Phase
Mr. Spencer contends that trial counsel was ineffective because counsel “did
not conduct the minimally adequate investigation needed for effective penalty phase
representation.” Id. ¶ 160. Specifically, “counsel failed to interview Mr. Spencer ’s
family members regarding available mitigating evidence ” and “failed to procure
necessary records documenting Mr. Spencer ’s life.” Id. Mr. Spencer concedes that
counsel presented two witnesses, Mr. Spencer ’s mother and Mr. Spencer ’s uncle,
who was also his pastor. Id. ¶ 163. But Mr. Spencer argues that this was not enough:
“[t]he combined testimony of these witnesses, which only lasted long enough to fill
less than ten pages of transcript, . . . did not even begin to explain the complexities
of Mr. Spencer’s character, his mental and emotional impairments, his troubled
upbringing, or his history of alcohol and drug abuse. ” Id. And those two witnesses
“confirm that trial counsel did not prepare them in advance of their penalty-phase
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testimony. They had no idea what questions they would be asked when they were on
the witness stand.” Id. ¶ 163 n.144. “Given that some jurors were inclined to spare
Mr. Spencer’s life, despite the lack of mitigating evidence that counsel presented, ‘it
is possible that, if additional mitigating evidence had been presented, more jurors
would have voted for life.’” Id. ¶ 163 (quoting Cooper v. Sec.’y, Dep’t of Corr., 646
F.3d 1328, 1356 (11th Cir. 2011)).
“Dianne, [Mr. Spencer’s aunt], recalls that although she wanted to testify as a
penalty-phase witness, trial counsel told her that Mr. Spencer ’s mother should
represent the family, even without knowing what [Mr. Spencer ’s mother] would
say.” Id. ¶ 165. “Dianne recalls that [Mr. Spencer’s mother] was adamantly opposed
to testifying[,]” and “[s]he omitted many significant details about her own life and
Kerry’s background[.] ” Id. Mr. Spencer ’s uncle “recalls that defense counsel
encouraged him to pray prior to his testimony, but did not otherwise prepare him for
the questions he would be asked by the defense or prosecution. ” Id. “At the judge-
sentencing phase,” counsel produced various “documentary evidence” “but did not
call a mitigation specialist or mental health expert to testify.” Id. And “[n]one of the
documentary evidence spoke one word about Kerry Spencer ’s life, his mental
impairments, or his background. ” Id. And the court concluded “ that the evidence
from the defendant’s mother and uncle did not constitute mitigating evidence.” Doc.
17-35 at 14. But “[h]ad counsel performed effectively . . . , they would have been
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able to present arguments based on extensive testimony from family members,
experts, and medical professionals, who all could have offered critical information
about Mr. Spencer, his mental health problems, and the circumstances of his
upbringing.” Doc. 1 ¶ 171. For numerous pages, Mr. Spencer details the “available
mitigating evidence ” that his counsel allegedly should have presented. See id.
¶¶ 174–219; see also Doc. 21 at 68 (“Mr. Spencer’s failure- to-investigate claim
comprise more than 35 pages of his habeas petition.”).
The ACCA addressed this issue:
Spencer next argues that his trial counsel was ineffective
for failing to investigate and present mitigation evidence
at the penalty phase. Specifically, he asserts that there was
no testimony that he had been using drugs since he was
young, that he was raised in impoverished conditions, that
he lived in violent neighborhoods, that he had post-
traumatic stress disorder, and that he had brain injuries
from his childhood.

The circuit court stated the following concerning this
claim:

“Spencer’s request for an evidentiary hearing on
this claim is dismissed as a matter of law because
no material issue of fact or law exists which would
entitle Spencer to relief. Spencer cannot prove that
he was prejudiced by counsel’s failure to call more
or different witnesses during the penalty phase of
his trial because the jury recommended that he
receive a life without parole sentence — the best
sentence he could hope for.

“Moreover, the new evidence does not establish that
the outcome of the sentence imposed would have
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been different. The four aggravating circumstances
far outweigh any new and additional mitigating
circumstances offered by Spencer in his Rule 32
petition. As noted in the amended sentencing order
of March 30, 2009, the ‘officers were gunned down
while they attempted to serve a warrant of arrest for
one of the occupants of this illegal drug house ’ to
avoid a lawful arrest or to affect an escape under
aggravating circumstance 13A –4–59(5). As also
noted: ‘These officers were acting as agents of the
Court to duly serve these warrants and two of the
three were gunned down from behind without even
an opportunity to draw their weapons. ’ The capital
offense was also committed to disrupt or hinder the
lawful exercise of a government function or
enforcement of the laws. This Court found as
follows concerning this aggravating circumstance:

‘The Court places great weight on this factor. If we
are to have law and order in a civilized society, then
officers like these, who were gunned down trying to
perform a government function or enforce the law,
must mean something.’ This Court also found that
Spencer intentionally caused the death of two or
more persons by one act or pursuant to one scheme
or course of conduct in violation of § 13A–5–49(9).

“The amended sentencing order of March 30, 2009,
also states:

“‘By their verdicts, the jury found that the
defendant had the particularized intent to kill all
three of these officers. This court did not believe
this defendant’s testimony that anyone pointed
a weapon at him because the physical evidence
refutes this testimony.

“‘There was not one shred of remorse from the
defendant during his taped statement to the
police just after the murders nor his testimony
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at trial. In fact just to the contrary, he seemed to
feel he was justified in killing these three
officers who were acting in the line and scope
of their sworn duty. This is the most brutal and
violent attack on law enforcement officers this
Court has seen in its combined thirty years as a
prosecutor, defense lawyer, and as judge.’

“The following is also stated in the amended
sentencing order:

“‘This defendant posed a grave danger to the
public. He operated a drug selling operation and
maintained this operation in defiance of the law
enforcement authorities by use of violence. The
defendant made numerous threats that he would
kill the police officers if they came back to the
house “... to f – – – with us ...”. The defendant
followed through on these threats.’

“The aggravating circumstances in this case
are substantial and clearly outweigh the
mitigating circumstances offered at trial and
those offered by Spencer in his second
amended Rule 32 petition. This is especially
so where Spencer followed through on his
threats to murder the police officers if they
returned to the house. Spencer cannot prove
that he was prejudiced by his attorney ’s
failure to present more or different mitigating
evidence because death is the appropriate
punishment for Spencer. Spencer ’s re quest
for an evidentiary hearing is denied because
there is no material issue of fact or law which
exists that would entitle him to relief.”

(C. 80–82.)

As this Court stated in Hooks v. State, 21 So. 3d 772 (Ala.
Crim. App. 2008):
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“‘Appellant’s contention that his trial counsel
rendered ineffective assistance of counsel during
the penalty phase of the trial is repudiated by the
fact that the jury recommended life in this case.
Lewis v. State, 398 So. 2d 432 (Fla. 1981); Douglas
v. State, 373 So. 2d 895 (Fla. 1979).’”

Hooks, 21 So. 3d at 791 (quoting Buford v. State, 492 So.
2d 355, 359 (Fla. 1986)). See also Coleman v. State, 64 So.
3d 1210, 1224 (Fla. 2011) ( “This Court has repeatedly
held that a defendant cannot demonstrate prejudice for
counsel’s failure to present mitigation to the jury, as
opposed to the judge, when the jury recommended a life
sentence.” (emphasis omitted)).

Moreover, according to Wiggins v. Smith, 539 U.S. 510,
123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003), in considering
whether a postconviction petitioner can establish prejudice
in an attorney’ s failure to present more mitigation
evidence at the penalty phase of a capital-murder trial, the
court may “reweigh the evidence in aggravation against
the totality of available mitigating evidence. ” Wiggins,
539 U.S. at 534. Here, the same judge who sentenced
Spencer to death reweighed the mitigating evidence
presented at trial, the mitigating evidence alleged in the
Rule 32 petition, and the aggravating circumstances
established at trial and found that there was no probability
that the omitted mitigating evidence would have altered
Spencer’s sentence.

The record shows that at the penalty phase of Spencer ’s
trial, counsel presented the testimony of Spencer’s mother,
Patricia Spencer, and Spencer ’s uncle, Fred Pyles.
Spencer’s mother testified that Spencer was the middle of
three children, that he was the peacemaker among the
children because the other two were always fighting, that
he was not violent, that he had never been a problem, and
that Spencer had always been a good boy. Pyles testified
that Spencer was raised in a single-parent household, that
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his mother had held multiple jobs to support the family,
that Spencer was quiet, that Spencer went to church
regularly, that Spencer was the peacemaker in his
household, that Spencer had no father figure, that he had
never seen Spencer act violently, that Spencer was a
father, and that Spencer was remorseful for his actions that
led to the officers ’ deaths. At the judicial sentencing
hearing, counsel presented the testimony of Dr. Shealy,
who had evaluated Spencer for the sentencing hearing. Dr.
Shealy said that Spencer had no history of violence, that
he was a devoted father to his two children, that he was
active in his church, and that he had acted under extreme
emotional duress that may have been “exacerbated by the
influence of drugs that he was under at the time of the
offense.” (Trial R. 3469.)

At the judicial sentencing hearing, trial counsel also
presented the report compiled by Dr. Shealy about
Spencer’s mental health. This report is detailed in Part
III.C.3. of this opinion.

In Spencer ’s amended petition, Spencer pleaded that
counsel was ineffective for failing to present detailed
testimony about the lives of Spencer’s mother and father;
that Spencer’s mother had a tragic and traumatic life; that
she was a neglectful mother to Spencer; that Spencer
frequently moved in his childhood; that Spencer was
raised in poverty; that Spencer’s mother received food
stamps; that Spencer was raised in an area where there was
violence, gang activity, and drugs; that Spencer’s life was
affected when he witnessed the shooting death of a friend
in 1998; that Spencer started using drugs in his early teen
years; that Spencer did poorly in school; and that Spencer
had been affected by the violence in his life. Dr.
Schwartiz–Watts also stated that Spencer suffered from
post-traumatic stress disorder and that he had brain
injuries that he had suffered as a child.

This Court has reviewed the mitigation evidence that
Spencer pleaded should have been presented at his
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penalty-phase hearing, as well as the evidence that was
presented at Spencer ’s trial, and agrees with the circuit
court that the omitted mitigating evidence would have had
no impact on Spencer’s sentence of death. In other words,
considering the omitted mitigating evidence with the
evidence presented at trial would not have altered a
“reasonable decisionmaker [ ’s]” decision to sentence
Spencer to death. Williams v. Allen, 542 F.3d 1326, 1345
(11th Cir. 2008). Thus, Spencer could establish no
prejudice. This claim was correctly summarily dismissed
pursuant to Rule 32.7(d), Ala. R. Crim. P., because it
presented no material issue of fact or law that would entitle
Spencer to relief.

Spencer R.32, 201 So. 3d at 612–14.
Mr. Spencer contends that the ACCA conclusion “implies that the only
reasonable sentence for Mr. Spencer was death, a position that is irreconcilable with
the jury’s decision to impose life.” Doc. 21 at 71. And Mr. Spencer further argues
that “[u]nder clearly established federal law, whether the same trial judge would
nevertheless have overridden the jury verdict and imposed death, despite the
additional mitigation summarized above, is not dispositive.” Id. (citing Williams v.
Allen, 542 F.3d 1326, 1345 (11th Cir. 2008)). According to Mr. Spencer, the ACCA
“also erred by denying Mr. Spencer’s failure -to-investigate claims because it
decided that the additional evidence ‘would not have altered’ Mr. Spencer’s death
sentence.” Id. at 73 (quoting Spencer R.32, 201 So. 3d at 614). Mr. Spencer contends
that to succeed, he did not have to hurdle such a high bar. See id.
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It is well established that defense counsel has “a duty to make reasonable
investigations” of potential mitigating evidence or “to make a reasonable decision
that makes particular investigations unnecessary.” Wiggins v. Smith, 539 U.S. 510,
521 (2003) (quoting Strickland, 466 U.S. at 691). “In any ineffectiveness case,” an
attorney’s “decision not to investigate must be directly assessed for reasonableness
in all the circumstances, applying a heavy measure of deference to counsel’ s
judgments.” Id. at 521–22 (quoting Strickland, 466 U.S. at 691). However, counsel’s
duty to investigate “does not necessarily require counsel to investigate every
evidentiary lead.” Williams, 542 F.3d at 1337. “Under Strickland, ‘strategic choices
made after less than complete investigation are reasonable precisely to the extent
that reasonable professional judgments support the limitations on investigation.’” Id.
(quoting Strickland, 466 U.S. at 690– 91) ); compare Strickland, 466 U.S. at 699
(stating that counsel ’s “decision not to seek more character or psychological
evidence than was already in hand was . . . reasonable”), with Porter v. McCollum,
558 U.S. 30, 40 (2009) (noting that counsel “failed to uncover and present any
evidence of Porter’s mental health or mental impairment, his family background, or
his military service,” and “[t]he decision not to investigate did not reflect reasonable
professional judgment”).
Courts are required to “evaluate the totality of the available mitigation
evidence—both that adduced at trial, and the evidence adduced in the habeas
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proceeding— in reweighing it against the evidence in aggravation.” Williams, 529
U.S. at 397–98. “That same standard applies—and will necessarily require a court
to ‘speculate’ as to the effect of the new evidence—regardless of how much or how
little mitigation evidence was presented during the initial penalty phase. ” Sears v.
Upton, 561 U.S. 945, 955 (2010). Again, where a petitioner challenges a death
sentence, “the question is 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.
The ACCA did not unreasonably apply federal law to conclude that Mr.
Spencer’s counsel effectively presented mitigation evidence. Mr. Spencer’s counsel
presented two witnesses to testify on Mr. Spencer ’s behalf: Mr. Spencer’s mother
testified that Mr. Spencer was a “peacemaker” who was “never a violent person ”
and was “more like a comedian at family functions.” Doc. 17-28 at 176. She asked
the jury “that as God shows mercy, would you show mercy upon my son and let him
have life without parole instead of death?” Id. at 177.
Mr. Spencer’s uncle and pastor, Fred Pyle, testified that Mr. Spencer was “a
very unique young man” who “never had a violent history” and was “very
remorseful.” Id. at 179. Mr. Pyle told the jury that he “fel[t] [Mr. Spencer’s] pain
when [he] talk[ed] to him ” and that Mr. Pyle could see Mr. Spencer ’s pain “in his
eyes.” Id. He spoke about baptizing Mr. Spencer as a young child, id. at 180, and
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Mr. Spencer’s difficulties growing up with a single mom, id. at 181. And he testified
that Mr. Spencer was “a great father” who “had love for his kids.” Id. at 181–82.
This testimony was sufficient mitigation evidence for the jury to recommend
a life sentence rather than a death sentence. For murdering Officer Owen, the jury
recommended that Mr. Spencer receive a life sentence by a vote of nine to three.
Doc. 17-29 at 33. For murdering Officer Chisholm, the jury recommended that Mr.
Spencer receive a life sentence by a vote of ten to two. Id. at 33–34. For murdering
Officer Bennett, the jury recommended that Mr. Spencer receive a life sentence by
a vote of nine to three. Id. at 34. For the “intentional[] killing of two or more persons
during the same course of conduct,” the jury recommended that Mr. Spencer receive
a life sentence by a vote of seven to five. Id.
The trial court ultimately overrode these recommendations to sentence Mr.
Spencer to death. But before doing so, the trial court also received additional
evidence. Mr. Spencer testified at the judicial- sentencing phase of his trial, id. at
103–06, and his counsel presented evidence from a mitigation expert, a psychologist,
and a petition with signatures of approximately 325 members of the Ensley and
Graysville communities, urging the trial court to spare Mr. Spencer’s life. Doc. 17-
29 at 106–11; Doc. 17-19 at 45–105. The Equal Justice Initiative also submitted an
amicus brief urging the trial court to spare Mr. Spencer’s life. Doc. 17-29 at 110;
Doc. 17-11 at 157–68.
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On these fact s, the ACCA did not unreasonably determine that there is no
reasonable probability that the judge would have imposed a non-death sentence if
counsel had just introduced more evidence of Mr. Spencer ’s difficult upbringing.
See Hooks v. State, 21 So. 3d 772, 791 (Ala. Crim. App. 2008) (quoting Buford v.
State, 492 So. 2d 355, 359 (Fla. 1986)) (“[The defendant’s] contention that his trial
counsel rendered ineffective assistance of counsel during the penalty phase of the
trial is repudiated by the fact that the jury recommended life in []his case. ”);
Robinson v. Moore , 300 F.3d 1320, 1347 (11th Cir. 2002) ( “While the additional
mitigation witnesses procured by Robinson’s [post-conviction] counsel could have
presented the resentencing jury and trial judge with more details, or different
examples, of these aspects of Robinson ’s life, these aspects of his life were
nonetheless known to the resentencing jury and trial judge.”); Grayson v. Thompson,
257 F.3d 1194, 1227 –28 (11th Cir. 2001) ( “Although the graphic picture of
Grayson’s home life painted at the state habeas proceedings was not presented at
trial, the judge did not wholly disregard Grayson’ s unfortunate bac kground in
sentencing him to death. In light of the horrendous nature of this crime, we find no
reasonable probability that the sentence would have been different if the judge and
jury had possessed detailed information regarding Grayson’s history. ”). The trial
court received substantial mitigation evidence, all based on counsel’ s efforts
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throughout their representation of Mr. Spencer. Mr. Spencer is thus due no relief on
this claim.
ii. Failure To Challenge Aggravating Factors
Mr. Spencer next argues that trial counsel was ineffective during the penalty
and sentencing phase s for failing to challenge the aggravating factors the State
presented. More particularly, Mr. Spencer argues that “[o] nly one of these
aggravating factors was supported by the underlying guilty verdicts. Nevertheless,
counsel failed to present any evidence or adequately argue that these circumstances
were inapplicable to this case. ” Doc. 1 ¶ 221. According to Mr. Spencer, “[h]ad
counsel argued and adequately presented evidence at either phase that Mr. Spencer
lacked the necessary intent to commit capital murder because he was too intoxicated
to form the requisite intent either to knowingly create a risk or death or to kill, they
could have rebutted ” two of the aggravating factors relied upon by the State. Id.
¶ 223. And “[i]f counsel had secured the presence of Tyran Cooper at either stage of
trial, he would have testified in refutation of” two other aggravating factors. Id.
The ACCA addressed this issue:
First, Spencer argues that his trial counsel was ineffective
for failing to challenge the aggravating factors relied on by
the State to support a sentence of death.

When sentencing Spencer to death, the circuit court found
the existence of four aggravating circumstances: 1) that
Spencer knowingly created a great risk of death to many
persons in the commission of the crime, § 13A –5–49(3),
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Ala. Code 1975; 2) that the capital offenses were
committed for the purpose of avoiding or preventing a
lawful arrest or effecting an escape from custody, § 13A–
5–49(5), Ala. Code 1975; 3) that the capital offenses were
committed to disrupt or hinder the lawful exercise of a
government function or the enforcement of laws, § 13A –
5–49(7), Ala. Code 1975; and 4) that Spencer intentionally
caused the death of two or more persons during one act or
course of conduct, § 13A–5–49(9), Ala. Code 1975.

The circuit court stated the following concerning this
claim:
“Spencer asserts that counsel should have alleged
that he lacked the specific intent to knowingly
create a great risk of death during the capital offense
(Ala. Code, § 13A –5–47(3)) or to intentionally
cause the death of two or more persons by one act
or pursuant to one scheme or course of conduct
(Ala. Code, § 13A –5–47(9)) because of his
intoxication. However, as set forth ... Spencer has
yet to plead facts in his Rule 32 petition that he was
intoxicated to the point of insanity. Moreover, his
actions during the crime clearly show that he knew
what he was doing and intended the consequences
of his actions. Counsel, therefore, were not
ineffective for failing to challenge these aggravating
circumstances. No material issue of fact or law
exists concerning this claim. Spencer’s request for
an evidentiary hearing is, therefore, denied.

“Spencer next asserts that his attorneys should have
presented evidence —through the testimony of
Tyran Cooper—that the police officers were at the
apartment for the illegal purpose of bribe -taking or
in retaliation for unpaid bribes which caused him to
be in fear for his life which would have negated the
aggravating circumstances that the capital offense
was committed for the purpose of avoiding or
preventing a lawful arrest or effecting an escape
from custody (Ala. Code, § 13A –5–47(5)) or to
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disrupt or hinder the lawful exercise of a
government function or the enforcement of laws
(Ala. Code, § 13A –5–47(7)). This same argument
was made and rejected by the Court of Criminal
Appeals on direct appeal. Spencer v. State, 58 So.
3d at 240–44. Tyran Cooper’s testimony would not
entitle Spencer to relief, either. As the Court of
Criminal Appeals noted on direct appeal, Cooper
was not present during the murders and there was
no indication (and there is no indication) that
Cooper would testify to any spec ific
communications between himself and Spencer that
would support a self-defense argument. Spencer, 58
So. 3d at 239.

“Moreover, as the Court of Criminal Appeals found,
any fear that Spencer had about the officers was not
reasonable. Spencer, 58 So. 3d at 244. There is
absolutely nothing in the record that indicates that
the officers made Spencer fear for his life when they
entered the apartment. Their weapons were not
drawn and their attention was focused solely on
Woods. They never even attempted to approach
Spencer. In fact, the officers did not attempt to use
any force against Spencer, much less excessive
force. As the record reveals, Spencer was asleep on
the couch when the officers entered the apartment.
When Spencer heard a noise, he got up and looked
out the bedroom window to see what was
happening. He then saw Woods and started firing on
the officers. Spencer testified that he did not stop
firing until all of the officers were down. Nor would
Tyran Cooper ’s testimony add to Spencer’ s
argument that the officers had a felonious intent
when they entered the apartment because there is no
indication that Cooper communica ted to Spencer
that he was having any problems with the police
officers.

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“Spencer used excessive force against Officers
Owen, Chisolm, and Bennett. This is especially true
where the officers were not attempting to do
anything to Spencer. They never spoke a word to
Spencer after they entered the apartment and their
weapons were h olstered. Counsel were not
ineffective for failing to have Tyran Cooper
available to testify at Spencer ’s trial. Nor was
Spencer prejudiced by this failure. Spencer’ s
request for an evidentiary hearing on this claim is
denied because no ‘material issue of fact or law
exists’ which would entitle him to relief. Rule
32.7(d), Ala. R. Crim. P.”

(C. 82–85.)

The record of Spencer ’s trial shows that defense counsel
objected to the aggravating circumstance that Spencer
knowingly created a great risk of death to many persons.
(Trial R. 1849–1854.) However, the trial court stated that,
based on the holdings in Madison v. State, 718 So. 2d 90
(Ala. Crim. App. 1997), and White v. State, 587 So. 2d
1218 (Ala. Crim. App. 1990), there was sufficient
evidence to support this aggravating circumstance and that
it was going to instruct the jury on this aggravating
circumstance. This Court agrees with the court’ s
assessment. The shootings took place in an apartment
complex in a residential neighborhood. Officer Collins
testified that Spencer fired from the doorway of the
apartment to where his patrol car was parked and that
bullets ricocheted off the vehicle. Res idents were in the
apartment complex at the time. This aggravating
circumstance was correctly applied based on the holdings
in Madison and White. Moreover, testimony established
that police were at the residence to serve an arrest warrant
on Woods. Certainly, the aggravating circumstances set
out above were proven beyond a reasonable doubt at
Spencer’s trial and were correctly applied. “Because the
substantive claim underlying the claim of ineffective
assistance of counsel has no merit, counsel could not be
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ineffective for failing to raise this issue. ” Lee v. State, 44
So. 3d at 1173. This claim was correctly summarily
dismissed because there was no material issue of fact or
law that would entitle Spencer to relief. See Rule 32.7(d),
Ala. R. Crim. P.

Spencer R.32, 201 So. 3d at 614–16.
Mr. Spencer contends that the ACCA reasoning was wrong because it
“ignores that the [aggravating] circumstances were satisfied because they went
largely unchallenged.” Doc. 21 at 79. So according to Mr. Spencer, “[b]y not
considering the impact of the additional evidence, which should have been
presented, on the reliability of the aggravating circumstances, the Court of Criminal
Appeals unreasonably applied the Strickland standard.” Id.
In his petition, Mr. Spencer cites Green v. Georgia, 442 U.S. 95, 97 ( 1979),
for the proposition that the trial court erred by excluding Mr. Cooper ’s testimony,
and that error prejudiced Mr. Spencer because he was unable to refute aggravating
factors (2) and (3). See Doc. 1 ¶¶ 223–24; Ala. Code § 13A-5-49(5), (7). There, the
Supreme Court reversed a conviction because the trial court incorrectly excluded
alibi testimony on the basis of Georgia’s hearsay rule. Green, 442 U.S. at 96–97.
AEDPA deference controls this court’s review of this claim.
8 The ACCA did
not unreasonably apply Green. Indeed, Mr. Spencer does not attempt to apply any

8 In his Response, Warden Raybon argues that “Claim I-B-3” (which he
characterizes as the “claim that counsel failed to object to the double counting of the
murder of two or more police officers as an element of the capital offense and as an
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holding from Green, which the Supreme Court expressly limited to “the facts of
th[at] case,” to his case. Id. at 97. He instead simply insists that his counsel “failed
to present any evidence at sentencing to rebut the aggravating circumstances, or to
adequately argue that the circumstances were inapplicable to this case” by failing to
present the testimony of Mr. Cooper. Doc. 1 ¶¶ 223–24; Doc. 21 at 78–80. But Mr.
Cooper’s testimony would not have refuted “ that the capital offenses were
committed for the purpose of avoiding or preventing a lawful arrest, ” Ala. Code §
13A-5-49(5), because his proffered testimony does not refute that the officers were
killed while executing a valid arrest warrant for Mr. Woods. See Doc. 17-28 at 35–
42. So even if the officers did have some other reason for visiting the apartment that
Mr. Cooper’s testimony would have provided evidence of, it would not change the
fact that the officers were killed while trying to execute a valid arrest warrant for

aggravating circumstance”) is not fully exhausted and “therefore procedurally
defaulted.” Doc. 19 at 16. But as Mr. Spencer explains in his reply, “sub-claim
I(B)(3) . . . alleges that trial counsel failed to challenge the aggravating factors relied
upon by the State[.]” Doc. 21 at 4. And “that sub-claim was raised on appeal to both
the Alabama Court of Criminal Appeals and Alabama Supreme Court, and is
therefore fully exhausted and ripe for this Court’s review.” Id. at 4–5. The claim
about double counting is found in section I(B)(4), not I(B)(3) as Mr. Raybon alleges.
See id. at 4; Doc. 1 at 115. In the section of Warden Raybon’s reply dedicated to the
double-counting claim, he re-raises his argument that the double -counting claim is
procedurally defaulted. See Doc. 19 at 91– 92. But in the section dedicated to the
aggravating factors claim, he makes no exhaustion or procedural default argument.
See id. at 87 –91. Accordingly, the court understands Mr. Raybon to argue that
I(B)(4) (relating to double-counting) is barred from review, not I(B)(3) (relating to
aggravating factors).
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Mr. Woods. And Mr. Cooper ’s testimony is not relevant to the aggravating factor
“that the capital offenses were committed to disrupt or hinder the lawful exercise of
a government function or the enforcement of laws, ” Ala. Code § 13A-5-49(7), for
those same reasons. So the ACCA did not unreasonably interpret Green, or any other
federal law, in denying Mr. Spencer’s request for relief in this respect.
Likewise, the ACCA decision is not based on an unreasonable factual
determination. Mr. Woods had a valid warrant out for his arrest, so the facts
reasonably support a finding that the aggravating factors were applicable, as detailed
above. Doc. 17-15 at 9–10; see also Doc. 19 at 90 (“[T]he evidence offered by [Mr.]
Spencer in the post- conviction proceeding does not rebut the aggravating factors
offered by the State.”). Mr. Spencer is thus due no habeas relief on this claim.
iii. Failure To Object To Double-Counting As Element Of Charge
And In Aggravation

Mr. Spencer argues that trial counsel was ineffective during the penalty and
sentencing phase because “counsel failed to object to the double counting of the
murder of two or more as both an element of the capital offense and as an
aggravating circumstance used to sentence Mr. Spencer to death. ” Doc. 1 ¶ 225.
Specifically, Mr. Spencer contends that “the use of the murder of two or more both
as an elevator in the guilt-phase and as an aggravator in the penalty-phase failed to
narrow the class of cases eligible for the death penalty, resulting in the arbitrary
imposition of the death penalty. ” Id. And “double counting the multiple homicide
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factor subjected Mr. Spencer to two punishments as a result of being convicted of a
single criminal charge. ” Id. So, Mr. Spencer argues, trial counsel should have
objected to this alleged violation of Mr. Spencer’s constitutional rights. Id.
Mr. Raybon responds that this claim is “not fully exhausted and [is] therefore
procedurally defaulted because [it] was not raised on appeal to the Court of Criminal
Appeals or in [Mr.] Spencer’s petition for writ of certiorari in the Alabama Supreme
Court from the denial of the post-conviction petition. ” Doc. 19 at 16 –17.9 Mr.
Spencer “concedes that [this claim is] procedurally defaulted ” because he raised it
in his Rule 32 Petition but not “in his appeal challenging the dismissal thereof,” so
it was “not exhausted before the state appellate courts[.]” Doc. 21 at 4. Mr. Spencer
is thus due no habeas relief on this claim.
iv. Failure To Object To Death Sentence As Disproportionate
Mr. Spencer contends that trial counsel was ineffective during the penalty and
sentencing phase because counsel “fail[ed] to object to the imposition of the death
penalty on [the] basis” that it is disproportionate based on the facts of this case .
Doc. 1 ¶ 226.

9 Warden Raybon refers to this claim as “Claim I-B-3,” the “claim that counsel failed
to object to the double counting of the murder of two or more police officers as an
element of the capital offense and as an aggravating circumstance. ” Doc. 19 at 16.
Mr. Spencer points out that “sub -claim I(B)(3) ” is a ctually the claim “that trial
counsel failed to challenge the aggravating factors relied upon by the state.” Doc. 21
at 4. Rather, the claim regarding double -counting is Claim I(B)(4) , which Mr.
Spencer concedes is barred from this court’s review. See id.
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Warden Raybon responds that this claim is “not fully exhausted and [is]
therefore procedurally defaulted because [it] was not raised on appeal to the Court
of Criminal Appeals or in [Mr.] Spencer ’s petition for writ of certiorari in the
Alabama Supreme Court from the denial of the post-conviction petition.” Doc. 19 at
16–17. Mr. Spencer “concedes that [this claim is] procedurally defaulted” because
he raised it in his Rule 32 Petition but not “in his appeal challenging the dismissal
thereof,” so it was “not exhausted before the state appellate courts[.]” Doc. 21 at 4.
Mr. Spencer is thus due no habeas relief on this claim.
v. Failure To Object To Improper Victim Impact Evidence During
Judicial Sentencing
Mr. Spencer argues that trial counsel was ineffective during the penalty and
sentencing phase because counsel “fail[ed] to object to the prosecution’s elicitation
of improper victim impact evidence during the judicial sentencing phase .” Doc. 1
¶ 227. Specifically, Mr. Spencer contends that “the prosecution explicitly asked six
family members of the slain officers to testify about the penalty that Mr. Spencer
should receive, invited them to offer comparative judgments about the creditable
lives of the slain police officers, and deliberately elicited prejudicial
characterizations about Mr. Spencer. ” Id. ¶ 228. But “[t]rial counsel raised no
objection.” Id. Witnesses called Mr. Spencer “a monster” and implored the court to
impose the death penalty. Id. ¶¶ 228–30. “The prosecution gilded this already
damaging evidentiary presentation by arguing that the Court should impose the death
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sentence because the victims’ family members had asked for it and because the jury
. . . ‘just couldn’t pull the trigger. ’” Id. ¶ 231. Mr. Spencer argues that “[b]ecause
these impermissible arguments had the tendency to render Mr. Spencer’ s judicial
sentencing fundamentally unfair, counsel should have objected.” Id. ¶ 232.
The ACCA addressed this issue:
Spencer also argues that counsel failed to object to
improper victim -impact testimony offered by the State
during the judicial sentencing hearing. Specifically, he
argues that, at the sentencing hearing before the circuit
judge, the State asked six family members of the victims
to testify about the sentence that Spencer should receive.
All testified that Spencer should be sentenced to death.
The circuit court stated the following concerning this
claim:

“This evidence was offered during the judicial
sentencing hearing and was not offered to the jury.
Payne v. Tennessee, 501 U.S. 808 (1991), cited by
Spencer, involved introduction of victim impact
evidence before the jury and not evidence presented
to a judge. This Court did not consider this evidence
when it sentenced Spencer to death. Amended
Sentencing Order, March 30, 2009, p. 9.”

(C. 85–86.)

In the circuit court’s amended sentencing order, it
specifically stated that it had disregarded pleas for the
court to consider the sentence on the basis of passion or
prejudice. (Trial C. 98.) “We assume ... that the trial judge
knows the law....” Ex parte Anonymous, 810 So. 2d 786,
793 (Ala. 2001). This claim is refuted by the judge ’s
holding and the record on direct appeal. McNabb v. State,
991 So. 2d 313, 320 (Ala. Crim. App. 2007). Therefore,
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this claim was correctly summarily dismissed pursuant to
Rule 32.7(d), Ala. R. Crim. P.

Spencer R.32, 201 So. 3d at 616.
Mr. Spencer contends that “[u]nder clearly established federal law, all such
testimony is prohibited ,” and “an admission that the sentencer considered this
improper evidence has never been required.” Doc. 21 at 81. Instead, Mr. Spencer
argues, constitutional rights are violated when the prosecution presents such
testimony “and the resultant punishment is death.” Id.
In Booth v. Maryland, 482 U.S. 496 (1987), the Supreme Court held that “the
Eighth Amendment prohibits a capital sentencing jury from considering victim
impact evidence” that did not “relate directly to the circumstances of the crime.” Id.
at 501–02, 507 n.10, overruled by Payne v. Tennessee , 501 U.S. 808 (1991). Four
years later, in Payne , the Court reconsidered the ban on “‘victim impact’ evidence
relating to the personal characteristics of the victim and the emotional impact of the
crimes on the victim ’s family.” 501 U.S. at 817. The Court held that Booth was
wrong— the Eighth Amendment does not require such a ban. Id. at 827. But the
Court’s ruling was “limited to ” a particular type of victim impact testimony:
“evidence and argument relating to the victim and the impact of the victim’s death
on the victim’s family.” Id. at 830 n.2. The Payne Court recognized that “Booth also
held that the admission of a victim’s family members’ characterizations and opinions
about the crime, the defendant, and the appropriate sentence violates the Eighth
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Amendment.” Id. But because “[n]o evidence of the latter sort was presented at the
trial in th[at] case[,] ” the Payne Court did not reconsider that aspect of the Booth
decision. Id.
Several years later, the Supreme Court reversed a state court for “conclud[ing]
that Payne implicitly overruled Booth in its entirety.” Bosse v. Oklahoma, 580 U.S.
1, 2 (2016). The Court reminded the state court that it “remains bound by Booth’s
prohibition on characterizations and opinions from a victim’s family members about
the crime, the defendant, and the appropriate sentence unless th[e Supreme] Court
reconsiders that ban.” Id. The Supreme Court left for the state court on remand to
address the State ’s arguments that any “ error did not affect the jury’ s sentencing
determination, and the de fendant’s rights were in any event protected by the
mandatory sentencing review in capital cases required under Oklahoma law.” Id. at
2–3.
Mr. Spencer contends that based on these cases, “ the admission of this
testimony is clearly unconstitutional, [so] Mr. Spencer’s counsel unreasonably failed
to object.” Doc. 21 at 81. And Mr. Spencer argues that despite the circuit court’s
specific reassurance “that it had disregarded pleas for the court to consider the
sentence on the basis of passion or prejudice,” Spencer R.32, 201 So. 3d at 616, “an
admission that the sentencer considered this improper evidence has never been
required under Booth,” Doc. 21 at 81. “Instead, a defendant ’s constitutional rights
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are violated when the prosecution ‘formally present[s]’ this testimony, . . . and the
resultant punishment is death. ” Id. at 81–82 (alteration in original) . Further, Mr.
Spencer contends that this “improper testimony” did have an impact because
“[a]bsent this evidence, Mr. Spencer ’s jury voted that he be sentenced to life in
prison,” and only “ after this inflammatory evidence was presented, the trial
judgment decided to unilaterally override the jury’s life verdict.” Id. at 82.
There is a “reasonable argument that [Mr. Spencer ’s] counsel satisfied
Strickland’s deferential standard” because Mr. Spencer cannot establish that he was
prejudiced by his counsel’s failure to object to this evidence . See Harrington, 562
U.S. at 105. Indeed, the trial court expressly confirmed that it excluded any such
improper evidence from its decision making. Spencer R.32, 201 So. 3d at 616. So
even if the development of such evidence was improper, the trial court’s express
refusal to consider it forecloses any argument that Mr. Spencer was prejudiced by a
failure to object. Accordingly, the ACCA ruling against Mr. Spencer’ s
ineffectiveness claim was not contrary to or an unreasonable application of clearly
established federal law, nor an unreasonable factual determination.
vi. Failure To Object To Improperly Considered Evidence
Mr. Spencer contends that trial counsel was ineffective because “ counsel
failed to object, to request disclosure, or otherwise to raise any concern ” when the
trial court referred to various letters from citizens about Mr. Spencer ’s sentence,
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which the court kept in a box in his office rather than in the case file. Doc. 1 ¶ 235.
Mr. Spencer contends that because the letters were not made part of the record, he
was not able to “challenge or explain” them. Id. ¶ 238. He also argues that “it is
impossible to know what quantum of ex parte information the Court received and
considered in deciding to override Mr. Spencer’s jury verdicts[.]” Id. ¶ 236. Mr.
Spencer contends that the “president of the Birmingham Fraternal Order of Police
chapter[] hand-delivered to the judge a resolution passed at the national conference
in New Orleans in August with the unanimous vote of 4,000 delegates representing
more than 320,000 police officers across the country” advocating for imposition of
the death penalty. Id.
The ACCA addressed this issue:
Spencer next argues that his trial counsel was ineffective
for failing to object to evidence that was considered by the
sentencing court that Spencer had no opportunity to hear
or rebut. Specifically, he asserts that counsel “failed to
object, to request disclosure, or otherwise to raise any
concern, when the Court referenced ‘all the letters I ’ve
received from the citizens pro and con [the death sentence]
about this case [that] are not in the file. They are in a box
in my office.’” (C. 748.)

The circuit court stated the following concerning this
claim:

“Spencer requests an evidentiary hearing on his
claim that counsel failed to object to evidence
considered by the Court during the judicial
sentencing hearing that he had no opportunity to see
or rebut. Spencer ’s request is denied because this
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claim is not sufficiently pleaded. Spencer does not
allege that this Court relied on this information
when he overrode the jury’ s life without parole
sentence recommendation and sentenced Spencer to
death.

“In addition, Spencer ’s request is denied because
the claim can be resolved on the record before the
Court. While this Court noted that it had received
letters from citizens pro and con about this case, this
Court did not consider those letters in making its
sentencing determination. In fact, this Court stated
in the March 30, 2009, amended sentencing order
that it disregarded ‘pleas or references to the Court
to consider the sentence on the basis of passion or
prejudice....’ This Court did not rely on any
information that Spencer did not see or was not
allowed to rebut. Spencer ’s discovery request on
this claim is, therefore, denied.”

(C. 101–02.)

The circuit court specifically stated in its amended
sentencing order that it did not consider any pleas as they
related to the sentence. The circuit court also stated in the
postconviction order that it had not considered the
challenged documents when determining Spencer ’s
sentence. This claim is refuted by the circuit court and the
record on direct appeal. McNabb v. State, 991 So. 2d at
320. Therefore, the circuit court did not err by summarily
dismissing this claim pursuant to Rule 32.7(d), Ala. R.
Crim. P.

Spencer R.32, 201 So. 3d at 616–17.
Mr. Spencer contends that his sentence violates Gardner v. Florida, 430 U.S.
349 (1977), because “the trial judge reviewed confidential information at sentencing
that was not disclosed to the defense.” Doc. 21 at 83. And, according to Mr. Spencer,
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even if the trial court “specifically stated in its amended sentencing order that it did
not consider any pleas as they related to the sentence,” Spencer R.32, 201 So. 3d at
617, “the trial judge need not attest to the significance of the extra -record material
in order to maintain a Gardner challenge[,]” Doc. 21 at 84. Instead, Mr. Spencer
cites an unpublished Eleventh Circuit case for the proposition that “a Gardner
violation occurs when sentencing information ‘was held in confidence by the state
court’ and withheld from the defense, as in this case. ” Id. (quoting United States v.
Black, 570 F. App’x 836, 840 (11th Cir. 2014)).
Mr. Spencer’ s arguments are unavailing. Gardner held that a criminal
defendant is “denied due process of law when the death sentence [i]s imposed, at
least in part, on the basis of information which he had no opportunity to deny or
explain.” 430 U.S. at 362. That is not what happened here. Mr. Spencer’ s death
penalty was not imposed on the basis of information which he had no opportunity to
deny or explain. See Spencer R.32, 201 So. 3d at 617.
Here, the trial court “specifically stated in its amended sentencing order that
it did not consider any pleas as they related to the sentence.” Id. The trial court “also
stated in the postconviction order that it had not considered the challenged
documents when determining Spencer’s sentence.” Id. The trial court emphasized
that it “did not rely on any information that Spencer did not see or was not allowed
to rebut.” Id. (quoting Doc. 17-37 at 103). The Gardner Court did “recognize the
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importance of giving counsel an opportunity to comment on facts which may
influence the sentencing decision in capital cases.” 430 U.S. at 360. But the Court
found the constitutional violation where the court imposed the death sentence “as
least in part, on the basis of information “which [the defendant] had no opportunity
to deny or explain.” Id. at 362. This court will take—as courts routinely do— the trial
court at its word that it did not base its sentencing decision on improper evidence .
Accordingly, Mr . Spencer ’s sentence was no t imposed in a manner violative of
Gardner.
Because Mr. Spencer ’s sentence did not violate Gardner , there is a
“reasonable argument that [Mr. Spencer’s] counsel satisfied Strickland’s deferential
standard” because Mr. Spencer cannot prove that he was prejudiced by the lack of a
Gardner objection. See Harrington, 562 U.S. at 105. E ven if the evidence was
problematic, the trial court’s refusal to consider it forecloses any argument that Mr.
Spencer was prejudiced by his counsel’s failure to object. Accordingly, the ACCA’s
rejection of Mr. Spencer ’s claim under Strickland was not contrary to or an
unreasonable application of clearly established federal law, nor an unreasonable
factual determination.
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vii. Penalty-Phase Error Cumulative Effect
Mr. Spencer next contends that the cumulative effect of trial counsel’s alleged
ineffective assistance during the penalty and sentencing phase “denied Mr. Spencer
his right to a fair trial and accurate sentence determination.” Doc. 1 ¶ 239.
The ACCA addressed this issue:
Spencer next argues that the cumulative effect of counsel’s
errors resulted in prejudice to him.

The circuit court stated the following concerning this
claim:

Spencer R.32, 201 So. 3d at 617.
As detailed throughout Part III.A.2., counsel’s representation of Mr. Spencer
throughout the penalty and sentencing phase of his trial was objectively reasonable.
Mr. Spencer is thus due no habeas relief on this claim.
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3. Direct Appeal – Ineffective Assistance Of Counsel
Mr. Spencer contends that his appellate counsel was ineffective during his
direct appeal. Doc. 1 ¶ 240. Specifically, Mr. Spencer contends that his appellate
counsel was ineffective for failing to challenge the “factually inconsistent
prosecutorial theories” used in Mr. Spencer and Mr. Woods’s trials. Id. ¶ 247. Mr.
Spencer argues that “the prosecution argued repeatedly at [his] trial that [he] was the
leader of a premeditated plan to kill the police officers and that [he] shot Officer
Bennett in the face . . . .” Id. ¶ 243. “Nevertheless, the prosecutor repeatedly argued
during Mr. Woods’s subsequent trial that Mr. Woods, not Mr. Spencer, was the
leader of a premeditated plot to kill Birmingham police officers and that Mr. Woods
shot Officer Bennett in the face . . . .” Id. ¶ 244. According to Mr. Spencer,
“[e]xamination of the appellate record demonstrates that it is more than ‘arguable’
that Mr. Spencer ’s sentencers were swayed by the inconsistent prosecutorial
theories.” Id. ¶ 246 (explaining that in Mr. Spencer’ s trial, the court credited Mr.
Spencer as the “the sole shooter[,]” but at Mr. Woods’s sentencing, the court found
that there was no evidence as to who shot Officer Bennett) . So, Mr. Spencer
contends, these “factually inconsistent prosecutorial theories violated Mr. Spencer’s
rights . . . , and that issue is a meritorious one which warranted appellate review on
direct appeal[.]” Id. ¶ 247.
The ACCA addressed this issue:
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Spencer argues that his appellate counsel was ineffective
for failing to raise a cognizable issue on appeal.
Specifically, Spencer pleaded that his appellate counsel
was ineffective for failing to argue that the State presented
inconsistent theories at his June 2005 trial and at his
codefendant’s, Nathaniel Woods’s, October 2005 trial and
that the State ’s actions violated the decision of the
Supreme Court of the United States in Bradshaw v.
Stumpf, 545 U.S. 175, 125 S. Ct. 2398, 162 L. Ed. 2d 143
(2005).

The circuit court stated the following concerning this
claim:

“Spencer asserts that the prosecution argued at his
trial that he shot Officer Bennett and argued at [his
codefendant’s] trial that it was not clear who shot
Officer Bennett. The prosecution did not present
inconsistent theories at Spencer ’s trial and at
Woods’s trial. At Spencer ’s trial, the prosecution
argued that Spencer shot Officer Bennett and at
Woods’s trial the prosecution argued that it was not
clear who actually fired the last shot into Officer
Bennett. These are not inconsistent theories ... but
are different arguments from the evidence presented
at each trial.

“In addition, the facts in this case are
distinguishable from the facts in Bradshaw v.
Stump[f ], 545 U.S. 175 (2005)—the case relied
on by Spencer. In Stump[f], the defendant
maintained at all times that he did not shoot the
lone victim and was sentenced to death for his
involvement in the murder. In the instant case,
Spencer admitted during his trial that he fired
the final shot into Officer Bennett and also
admitted shooting and killing the other officers.
There is no doubt from the record that Spencer
was the primary shooter in the deaths of the
three police officers. Moreover, in the instant
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case, the jury recommended that Spencer be
sentenced to life imprisonment without the
possibility of parole rather than death. Based on
these facts, Spencer cannot prove that he was
prejudiced when his appellate counsel failed to
argue on appeal that the p rosecution allegedly
presented inconsistent theories as to who fired
the last shot at Officer Bennett. Because no
material issue of fact or law exists concerning
this claim, Spencer is not entitled to an
evidentiary hearing on this claim.”

(C. 86–87.)

Initially, this Court notes that appellate counsel was not
ineffective for failing to raise this issue on appeal because
Spencer was tried months before Woods; therefore, the
trial record would have been silent as to the facts
surrounding this claim. Counsel cannot be ineffective for
failing to raise an issue that has no factual support in the
record. See Ray v. State, 80 So. 3d 965, 988 (Ala. Crim.
App. 2011).

In addressing a similar issue, this Court in Johnson v.
State, [Ms. CR–05–1805, June 14, 2013] ––– So .3d ––––
(Ala. Crim. App. 2007) (opinion on return to remand),
stated:

“Many courts have recognized that the government
may argue inconsistent theories in cases involving
multiple defendants. In addressing this issue,
federal courts have upheld the State ’s presentation
of inconsistent evidence in codefendants’ trials. The
United States Court of Appeals for the Fifth Circuit
has stated:

“‘[The defendant] argues that his constitutional
due process rights were violated when the
government presented inconsistent theories at
two criminal trials —namely, at Cooper ’s
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[codefendants’] trial the government argued
that Cooper shot Marshall, and at [the
defendant’s] trial, the government argued that
[the defendant] shot Marshall. We have held,
though, “a prosecutor can make inconsistent
arguments at the separate trials of codefendants
without violating the due process clause. ”
Beathard v. Johnson, 177 F.3d 340, 348 (5th
Cir. 1999); see also Nichols v. Scott, 69 F.3d
1255, 1272 (5th Cir. 1995) ( “Two things,
however, may be said about the rather
amorphous doctrine of judicial estoppel. First,
there is no indication in the authorities that it is
constitutionally mandated. Second, it has
apparently never been applied against the
government in a criminal case.”). In any event,
the inconsistencies were immaterial to the
conviction since [the defendant] could have
been convicted for the same offense, carjacking
resulting in death and aiding and abetting the
same, under both theories. See United States v.
Paul, 217 F.3d 989, 998– 99 (8th Cir. 2000)
(“When it cannot be determined which of two
defendants’ guns caused a fatal wound and
either defendant could have been convicted
under either theory, the prosecution’s argument
at both trials that the defendant on trial pulled
the trigger is not factually inconsistent. ”); cf.
Bradshaw v. Stumpf, 545 U.S. 175, 187, 125 S.
Ct. 2398, 162 L. Ed. 2d 143 (2005) (upholding
a guilty plea where the defendant’s assertions of
inconsistency related entirely to which
individual shot the victim but where “the
precise identity of the triggerman was
immaterial to [defendant] ’s conviction for
aggravated murder.”).’

“United States v. Frye, 489 F.3d 201, 214 (5th
Cir.2007).

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“‘Courts presented with situations where there
are genuine evidentiary disputes as to who was
responsible for a crime among various
defendants have shown greater willingness to
permit a prosecutor to argue inconsistent
theories in separate trials. See Beathard v.
Johnson, 177 F.3d 340, 348 (5th Cir. 1999)
(“The record does not support such a claim.
Price had two live eyewitnesses to the crime,
both charged with capital murder and both
accusing the other of being the most culpable....
Price, as well as every juror involved, knew that
both of the stories could not have been true. ”);
Parker v. Singletary, 974 F.2d 1562, 1578 (11th
Cir. 1992) ( “But no due process violation
occurred, because there was no necessary
contradiction between the state ’s positions in
the trials of the three co- defendants. Given the
uncertainty of the evidence, it was proper for the
prosecutors in the other co-defendants’ cases to
argue alternate theories as to the facts of the
murder.”).’

“United States v. Ganadonegro, 854 F. Supp. 2d
1088, 1098 (D.N.M. 2012).

“Other state courts addressing this issue have
reached the same conclusion.

“‘[W]e are in accord with the courts that hold
that a due process violation will only be found
when the demonstrated inconsistency exists at
the core of the State’s case. Discrepancies based
on rational inferences from ambiguous evidence
will not support a due process violation
provided the two theories are supported by
consistent underlying facts. We recognize that
the evidence presented at multiple trials is going
to change to an extent based on relevancy to the
particular defendant and other practical matters.
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The underlying core facts, however, should not
change. The few courts that have found due
process violations did so in cases where the
inconsistencies were inherent to the State ’s
whole theory of the case or where the varying
material facts were irreconcilable. It is this type
of inconsistency that renders the conviction
fundamentally unfair, thus violating due
process.’

“Sifrit v. State, 383 Md. 77, 106, 857 A.2d 65, 82
(2004).

“‘Courts have ... found no due process violation
stemming from inconsistent arguments as to
who was the killer in the relatively common
circumstance where each defendant can be held
equally guilty as an aider and abettor upon the
same inconclusive evidence.’

“State v. Poe, 284 Neb. 750, 768, 822 N.W. 2d 831,
845 (2012).

“There is no due -process violation when the State
argues at one trial that one codefendant shot the
victim and at the codefendant’s trial argues that that
codefendant shot the victim.

“‘When it cannot be determined which of two
defendants’ guns caused a fatal wound and
either defendant could have been convicted
under either theory, the prosecutor ’s argument
at both trials that the defendant on trial pulled
the trigger is not factually inconsistent. Thus,
because there was evidence that supported both
theories, and since [the defendant] could have
been convicted of aiding and abetting under
either theory, we find no error.’

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“United States v. Paul, 217 F.3d 989, 998 –99 (8th
Cir. 2000).

“Thus, because there is no merit to the legal
theory underlying this claim of ineffective
assistance, the claim was properly dismissed.
See, e.g., Lee v. State, 44 So. 3d 1145, 1173
(Ala. Crim. App. 2009) (counsel cannot be
ineffective for failing to raise a claim that has no
merit).”

––– So. 3d at ––––– So. 3d at ––––. Because the
substantive claim had no merit, appellate counsel could
not be ineffective for failing to raise this issue on appeal.
See Lee, supra.

Furthermore,

“[c]ounsel need not raise and address each and
every possible argument on appeal to ensure
effective assistance of counsel. Indeed, the process
of ‘winnowing out weaker arguments on appeal and
focusing on those more likely to prevail, far from
being evidence of incompetence, is the hallmark of
effective appellate advocacy.’ Smith v. Murray, 477
U.S. 527, 536, 106 S. Ct. 2661, 2667, 91 L. Ed. 2d
434 (1986). See also, Johnson v. State, 612 So. 2d
1288, 1303 (Ala. Crim. App. 1992).”

Brown v. State, 663 So. 2d 1028, 1035 (Ala. Crim. App.
1995).

This claim was correctly summarily dismissed because
there is no material issue of fact or law that would entitle
Spencer to relief. See Rule 32.7(d), Ala. R. Crim. P.

Spencer R.32, 201 So. 3d at 617–20.
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Mr. Spencer contends that the ACCA made “an unreasonable determination
of the facts, as the record clearly demonstrates that the prosecutors made contrary
arguments.” Doc. 21 at 89. Mr. Spencer points to three statements from his trial and
Mr. Woods’s trial that he alleges show this inconsistency. Id. at 89–90.
At Mr. Spencer’s trial, the prosecution said:
When [Mr. Spencer] got outside the front door, he wasn’t
through shooting just yet. He took that SKS rifle and he
aimed it to the ground at Officer Bennett who was right
there laying on the concrete in the dirt and point blank shot
him in the face. Now he was through. He tossed the rifle
aside, and he and Nathaniel Woods ran down the street to
go hide in the attic of a house nearby.

Doc. 17-22 at 189–90. The prosecution also said:
Who killed them? Who killed them? Nathaniel Woods?
Markesha whatever her name was? No.

Doc. 17-28 at 110–11. And finally, the prosecution said at Mr. Spencer’s trial:
Do you think [Mr. Spencer] cared for a moment that any
of those stray bullets would hit anybody in that
neighborhood? He did not care. And [Mr. Spencer] shows
us how little he cared when he takes that rifle and puts a
hole in Rob Bennett’s face. He doesn’t care. He didn’t care
then.

Id. at 190. But then, Mr. Spencer purports to quote from Mr. Woods’s trial transcript
where the prosecutor argued:
Just one more minor point to consider, [Mr. Woods] was
the elder of the two. He was in charge. He had Kerry
Spencer do the work for him. He told Kerry Spencer, if
they come back, we’re going to shoot them.
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Doc. 21 at 89 (quoting “Woods Tr. at 1666- 67”). He alleges that the
prosecution said in Mr. Woods’s case:

Finally there’s one question that remains. There’s been no
definitive evidence, there’s not been one witness who has
been able to tell us who shot Officer Bennett when he was
lying on that ground crying out to his God for help, who
shot him in his face, who put that SKS up to him two
inches away from his face. No one saw that. We know
Kerry Spencer shot him through the screen door as he was
standing in the walkway. But we also know because Blue
tells us he was laying on that ground and he was screaming
for help. He was saying, “Oh, my God. Oh, my God.” And
then he was silenced. And there’s not been a witness who
can tell us who fired that shot into his face that went
through his head and Officer White had to go back and dig
the bullet out of the ground. Is that why [Mr. Woods] says
when he gets to John Prather’s house, is that why [Mr.
Woods] says, “We shot their asses.”? Is that why he says,
“We shot their asses.”?

Id. at 90 (emphasis removed) (quoting “Woods Tr. at 1679-80”). Mr. Spencer also
alleges that at Mr. Woods’s trial, the prosecution said:
Who did shoot Rob Bennett in the face? Has anybody
other than the guy on the TV [Mr. Spencer] told you who
shot Rob Bennett in the head? You’ve heard [Mr.
Spencer’s] testimony read, you’ve had [Mr. Spencer’s]
statement that he gave to the police, you’ve got that on
tape, you’ve heard his testimony from his own trial read.
In his statement to the police on June 17th, number one,
he adamantly denies, ya’ll heard him, he adamantly denies
taking Carlos Owen’s gun. “What did I need with a gun?
I’ve got my nine. I’ve got my SK.” Two or three times they
tried to get him -- you know, he’s admitted killing three
police officers and won’t admit taking a gun. And he
doesn’t say anything about Rob Bennett’s arm jerking and
hitting him in the leg and that’s why he shot him in the
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face. He doesn’t say that. Roughly a year later at Kerry
Spencer’s trial, “Oh, yeah. I forgot. I did pick up officer
Owen’s gun because I didn’t know whether he was dead
or not and I was afraid he would shoot me in the back.”
Look at that picture and tell me whether or not he had any
reason at all to believe that Carlos Owen wasn’t dead.
And, Oh, by the way, as I was coming out the door, the
officer on the ground flinched and hit me on the leg and I
shot him in the face. I’m just asking you. I’m not telling
you. I’m asking you if from all of that is there a reasonable
logical inference that Kerry Spencer has decided, I’m
history, I’m toast, but my partner, my partner, I need to
take some heat off of him.

Id. (quoting “Woods Tr. at 1743 -44”). Finally, Mr. Spencer alleges that at Mr.
Woods’s trial, the prosecution said:
And the State would have you believe that the defendant
Nathaniel Woods, somehow he picked up the SKS rifle
and shot Mr. Bennett in the face. I don’t believe that’s
what happened.

Id. at 91 (quoting “Woods Tr. at 1646, 1706”).

Further, Mr. Spencer contends that the ACCA ruling was “contrary to clearly
established federal law[]” because “[t]he notion that a defendant cannot challenge
due process violations occurring after his conviction directly contradicts” Supreme
Court precedent. Id. at 91–92.
AEDPA deference controls this court’s review of this claim. Mr. Spencer cites
Bradshaw v. Stumpf , 545 U.S. 175 (2005), and argues that “inconsistent
prosecutorial theories could constitute a due process violation ” by depriving
defendants of “[a] fair trial in a fair tribunal, ” Turner v. L ouisiana, 379 U.S. 466,
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472 (1965), resulting in unfair capital sentencing, Doc. 1 ¶ 240; Doc. 21 at 88– 92.
Bradshaw was decided on June 13, 2005, the same day that Mr. Spencer’s trial
began. See Doc. 17-21 at 108; Bradshaw, 545 U.S. at 175.
In Bradshaw, the Supreme Court ruled that “it would be premature . . . to
resolve the merits” of the petitioner’s inconsistent theories claim because the lower
court had not yet determined if the prosecutor ’s conduct constituted a d ue process
violation. 545 U.S. 187 –88. Indeed, the Supreme Court explicitly “express[ed] no
opinion on whether the prosecutor’s actions” there “amounted to a due process
violation.” Id. at 187. So Mr. Spencer cannot rely on Bradshaw, which held nothing
with respect to the arguments advanced by Mr. Spencer. The ACCA thus did not
unreasonably apply the law as decided by the Supreme Court to Mr. Spencer’s case.
Likewise, the ACCA decision was also not based on an unreasonable
determination of the facts. At Mr. Spencer’s trial, he testified that he shot Officer
Bennett on his way out the back door after the officer “jumped and touched” him
because it was his “automatic reflex.” Doc. 17- 27 at 199. His jury thus convicted
him for Officer Bennett’s murder. Doc. 17-29 at 34.
At Mr. Wood s’s trial, the prosecution argued that Mr. Spencer strategically
chose to confess to Officer Bennett’s killing “to take some heat off of” Mr. Woods.
Doc. 21 at 90. The prosecution attacked Mr. Spencer’s testimony and claimed there
was “no definitive evidence” of “who shot Officer Bennett” by pointing to Mr.
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Woods’s statement after fleeing to an apartment down the street that “[w]e shot their
asses.” Id.
The trial court found that the prosecution’s arguments were “not inconsistent”
but “different arguments from the evidence presented at trial,” and the ACCA
affirmed that finding. Spencer R.32, 201 So. 3d at 618, 620. This was not
unreasonable. At Mr. Woods’s trial, the prosecution chose to attack Mr. Spencer’s
confession to prove its case; it did not present definitive evidence that Mr. Spencer
had killed Officer Bennett and then attempt to prosecute Mr. Woods for that same
crime. It instead allowed the jury to consider Mr. Spencer’s testimony along with his
apparent interest in preserving his co-conspirator’s life. Accordingly, Mr. Spencer is
due no habeas relief on this claim.
B. Substantive Claims
Mr. Spencer raises several claims of substantive error. For the reasons
explained below, Mr. Spencer is not entitled to habeas relief on any of these claims.
1. Alabama’s Capital Sentencing Process Does Not Violate Ring v.
Arizona
According to Mr. Spencer, “Alabama ’s jury override procedure is
fundamentally unfair.” Doc. 1 ¶ 250. “As it relegates capital juries to a mere advisory
role in sentencing, it is unconstitutional and violates clearly established federal law.”
Id. Mr. Spencer contends that “Alabama ’s capital sentencing scheme is
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unconstitutional because it empowers the judge to make the fact-finding necessary
to impose the death penalty[,] ” in contravention of Ring v. Arizona , 536 U.S. 584
(2002), and Hurst v. Florida, 577 U.S. 92 (2016). Doc. 1 at 128–34.
In Ring, the Supreme Court held that the Sixth Amendment guarantees that
“[c]apital defendants, no less than noncapital defendants, . . . are entitled to a jury
determination of any fact on which the legislature conditions an increase in their
maximum punishment.” 536 U.S. at 589. Hurst applied Ring to Florida’s sentencing
process. There, the Supreme Court held a petitioner ’s death sentence
unconstitutional because “the judge alone [found] the existence of an aggravating
circumstance” that expanded the range of pu nishment to include the death penalty.
Hurst, 577 U.S. at 103.
Mr. Spencer asserts that his death sentence violates Ring and Hurst because
the trial court— not the jury—found the specific aggravating fact ors that authorized
his death sentence and found that these aggravating factors outweighed the
mitigating circumstances. See D oc. 1 at 13 0–33. After closing arguments in the
penalty phase of Mr. Spencer’s trial, t he trial court instructed the jury on the
definition of the four aggravating circumstances presented by the State and
instructed the jurors that their duty was to determine “whether the state has proven
[the existence of the aggravating circumstances] beyond a reasonable doubt.”
Doc. 17-29 at 6. He continued: “The defendant does not have to disprove anything
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about an aggravating circumstance. The burden is wholly upon the State to prove
such a circumstance beyond a reasonable doubt.” Id. at 7. And he admonished the
jurors that they could “not consider any aggravating circumstance other than those
that [the trial court] instructed [them] on,” nor could they “consider an aggravating
circumstance unless [they were] convinced beyond a reasona ble doubt of the
existence of that aggravating circumstance in these cases.” Id.
The trial court also read the jurors a list of six mitigating circumstances. Id. at
8–11. He further instructed the jurors that “a mitigating circumstance does not have
to be included in the list that [he] . . . read to [the jury] in order for it to be considered
by [the jury]” and that “any aspect of the defendant’s character, or record, and any
of the circumstances of the offense that the defendant offers as a basis for a sentence
of life imprisonment without parole instead of death” should be considered as a
mitigating circumstance. Id. at 11–12. The jury returned a recommendation that Mr.
Spencer receive a sentence of life without the possibility of parole on all four capital
charges. Id. at 121.
On September 23, 2005, the trial court overrode the jury ’s recommendation
and sentenced Mr. Spencer to death. Doc. 17-1 at 103– 04 (Original Sentencing
Order); see also Doc. 17-1 at 124–25 (First Amended Sentencing Order); Doc. 17 -
35 at 2– 3 (Second Amended Sentencing Order); Doc. 17- 35 at 10 –11 (Third
Amended Sentencing Order).
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On direct appeal, the ACCA rejected Mr. Spencer’s argument that Alabama’s
death penalty statute violates Ring v. Arizona . Spencer I, 58 So. 3d at 248 . The
ACCA emphasized that both it “and the Alabama Supreme Court have repeatedly
denied the very claims now raised by [Mr.] Spencer on appeal.” Id. The ACCA cited
prior cases regarding “the impact of Ring on Alabama’s capital-murder statute and
sentencing scheme ” and Mr. Spencer’ s “contention regarding the weighing of
aggravating and mitigating circumstances.” Id.
In his habeas petition, Mr. S pencer argues that under Alabama ’s pre-2017
capital sentencing system, “[j] ury override undermine [d] defendants’ rights by
empowering trial judges to disregard a jury’s life verdict.” Doc. 1 ¶ 256. And, in Mr.
Spencer’s case, the sentencing judge “considered impermissible evidence that was
never presented to the jury,” which was compliant with Alabama law that permitted
the jury’ s recommendation to be overridden “when such information c [ould]
properly be used to undermine a mitigation circumstance. ” Id. ¶ 259 (quoting Ex
parte Carroll, 852 So. 2d 833, 836 (Ala. 2002)).
Mr. Spencer alleges that, contrary to Ring , at his sentencing “his trial judge
independently found the existence of aggravating factors, independently found that
those factors outweighed mitigating factors, and unilaterally sentenced Mr. Spencer
to death.” Id. ¶ 265. Thus, Mr. Spencer maintains that he is entitled to habeas relief
because “Alabama’s ‘hybrid’ capital sentencing scheme, and the trial judge ’s
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override of the jury’s life verdict, violated Mr. Spencer ’s rights under the Sixth,
Eighth, and Fourteenth Amendments to the United States Constitution.” Id.¶ 267. 10
To warrant habeas relief under Section 2254, Mr. Spencer must show that the
state court’s ruling was “beyond any possibility for fairminded disagreement. ”
Harrington, 562 U.S. at 103. He cannot meet that standard.
As an initial matter, Mr. Spencer cannot rely on Hurst. The Supreme Court
decided Hurst after the conclusion of Mr. S pencer’s direct appeal and his Rule 32
petition. Doc. 17-36 at 156–57; Doc. 17-37 at 169. Mr. Spencer did not assert a Hurst
challenge until he petitioned this court for habeas relief. “ Ring and Hurst do not
apply retroactively on collateral review. ” McKinney v. Arizona, 589 U.S. 139, 145

10 Warden Raybon suggests that Mr. Spencer has a separate claim “that the judicial
override was improper in his case because the trial judge considered impermissible
evidence when it overrode the jury’s life without parole sentence recommendation.”
Doc. 19 at 18. According to Warden Raybon, “[t]his claim was never presented to
the state courts[,]” so it “is therefore procedurally defaulted from this Court’s review
because it was not properly raised in the state courts.” Id. Mr. Spencer contends that
“[t]his assertion is incorrect. ” Doc. 21 at 6. Mr. Spencer says that his allegations
about the improperly considered evidence are “not a separate claim, but merely
form[] part of the argument in support of Claim II .” Id. That the judge allegedly
considered improper evidence is not “the crux of Mr. Spencer’s claim.” Id. “Instead,
Mr. Spencer objects to an unfair capital sentencing process which relegated his jury
to an advisory role and allowed a judge to impose death based on his own findings.”
Id. Accordingly, Mr. Spencer says, “[t] he substance of [his] claim is the same as
presented on direct appeal, when he likewise relied on Apprendi and Ring.” Id. The
court therefore will not consider separately Mr. Spencer ’s allegations about
improperly considered evidence. And in any event, his allegations about improperly
considered evidence do not affect this court’s conclusion that under controlling
precedent, Alabama’s capital sentencing scheme does not violate the Constitution.
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(2020) (citing Schriro v. Summerlin, 542 U.S. 348, 358 (2004)); see also Lambrix v.
Sec’y, Fla. Dep’t of Corr., 851 F.3d 1158, 1165 n.2 (11th Cir. 2017) ( “Hurst, like
Ring, is not retroactively applicable on collateral review.”).
As for Ring, nothing there forbids the use of an aggravating circumstance
implicit in a jury’s unanimous verdict to impose a death sentence. Indeed, Ring
specifically left open this possibility. See 536 U.S. at 609 n.7 (“We do not reach the
State’s assertion that any error was harmless because a pecuniary gain finding was
implicit in the jury ’s guilty verdict. ”). Here, the jury found Mr. Spencer guilty of
murdering two or more persons. Because there was no argument that those killings
were not part of the same course of conduct, the guilty verdict reflects that the jury
necessarily found beyond a reasonable doubt the existence of the corresponding
aggravating circumstance of “ intentionally caus [ing] the death of two or more
persons by one act or pursuant to one scheme or course of conduct,” specified in
Ala. Code § 13A-5- 49(9). This jury finding exposed Mr. Spencer to a range of
punishment that has the death penalty as its maximum , rendering Mr. Spencer ’s
death sentence compliant with Ring because the sentencing judge’s findings could
not increase the maximum penalty. See Ring, 536 U.S. at 589.
Mr. Spencer has not cited any Supreme Court precedent that extends Ring to
prohibit a trial judge from considering aggravating circumstances implicit within the
jury’s verdict of guilt or to require the jury to weigh the aggravating and mitigating
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circumstances. Thus, Mr. Spencer has not established that the ACCA ruling “was so
lacking in justification that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement,” Harrington, 562
U.S. at 103, nor that the ruling unreasonably applied Ring. Mr. Spencer is therefore
not entitled to habeas relief on this claim.
2. Trial Court Erred By Refusing To Instruct On Lesser Included Offenses
i. Refusal To Charge Jury On Voluntary Intoxication A nd
Manslaughter
“Mr. Spencer requested jury instructions on the lesser included offenses of
provocation manslaughter and manslaughter due to voluntary intoxication.” Doc. 1
¶ 270. “The trial court denied the requested instruction on provocation, but agreed
to give the charge on intoxication. ” Id. “However, when the trial judge later
instructed the jury, he failed to give both instructions.” Id. This was error, according
to Mr. Spencer, because “[e]vidence presented at trial . . . supported the lesser
included offense of manslaughter by voluntary intoxication.” Id. ¶ 276. Mr. Spencer
believes that “[t]he evidence of [his] intoxication clearly warranted a jury instruction
on the lesser included offense of manslaughter[,] ” id. ¶ 278, and “[i]n denying Mr.
Spencer’s requested instruction on the lesser included offense of manslaughter, the
trial court deprived the jury of a third option between capital murder and acquittal[,]”
id. ¶ 279.
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Mr. Spencer raised this claim on direct appeal, and the ACCA concluded that
“there was no rational basis for an instruction on voluntary intoxication,” so the trial
court did not err when it declined “ to instruct the jury on voluntary intoxication or
reckless manslaughter as a lesser-included offense.” Spencer I, 58 So. 3d at 232. The
ACCA noted that “although [Mr. Spencer] requested an instruction on voluntary
intoxication, he did not object to the lack of the now requested instructions. ” Id. at
230. So the ACCA reviewed for plain error. Id.
The ACCA acknowledged that “[g]enerally, where there is evidence of
intoxication and the charged offense involves specific intent, such as capital murder,
the trial court should instruct the jury on the lesser-included offense of
manslaughter.” Id. at 231. And “[a] charge on intoxication should be given if there
is an evidentiary foundation in the record sufficient for the jury to entertain a
reasonable doubt in the element of intent. ” Id. (internal quotation marks omitted)
(quoting Coon v. State, 494 So. 2d 184, 187 (Ala. Crim. App. 1986)).
Mr. Spencer’s evidence did not warrant a jury instruction on intoxication. The
ACCA considered Mr. Spencer’s allegations about his drug use around the time of
the shootings:
Here, Spencer presented evidence indicating that he had
ingested narcotics and alcohol the night before the
shootings and the morning of the shootings. Spencer
testified that at the time of the shootings, he had a cocaine
habit of “about six to seven grams a day.” (R. 1647.) When
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asked whether he had taken any narcotics on the morning
of the shootings, Spencer stated:

“Yes, I did. You know, I had a little bit of [cocaine]
powder left over from the night before. But the night
before, we really did a lot of cocaine. And, you
know, I probably didn’t go to sleep until about 4 in
the morning, you know, just dozed off.”

(R. 1675–76.) Spencer further stated that sometime shortly
after 9:00 a.m. on the morning of the shootings, he took a
Seroquel tablet and drank a beer to help him go to sleep.
(R. 1676.) Finally, in an interview with the police after his
arrest, Spencer stated that he was “high” at the time of his
arrest.

Id.
But these allegations did not establish Mr. Spencer’s intoxication at the time
of the shootings, as required to warrant such a jury instruction:
However, this evidence alone does not constitute evidence
indicating that Spencer was intoxicated at the time of the
shootings. Spencer did not claim to be intoxicated at the
time of the shootings. There was no evidence concerning
the effects, if any, that the amounts of cocaine and other
substances allegedly ingested the night before and
morning of the shootings had on Spencer at the time of the
shootings. Rather, based on the evidence presented at trial,
Spencer failed to establish any evidentiary foundation of
intoxication that would warrant an instruction on
intoxication. There was simply insufficient evidence from
which a jury could have found beyond a reasonable doubt
that Spencer was unable to form the requisite intent to
commit capital murder, because he was experiencing “a
disturbance of mental or physical capacities, ” resulting
from drug or alcohol use at the time of the murders.
Because there was no rational basis for an instruction on
voluntary intoxication, we find no plain error in the trial
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court’s failure to instruct the jury on voluntary intoxication
or reckless manslaughter as a lesser -included offense.

Id.
In his habeas petition, Mr. Spencer alleges that he consumed several
psychoactive drugs in addition to the cocaine he admittedly used the night before
and shortly after the murders. Doc. 1 ¶ 277. But those allegations were not raised in
state court, see Doc. 18 at 86, so the court does not consider them. See Cullen, 563
U.S. at 181; Snowden, 135 F.3d at 735.
Mr. Spencer contends that because the court did not instruct the jury on
voluntary intoxication, it “deprived the jury of a third option between capital murder
and acquittal.” Doc. 1 ¶ 279. He contends that this decision was “contrary to clearly
established federal law,” namely, Beck v. Alabama, 447 U.S. 625 (1980). Doc. 1 ¶
279; Doc. 21 at 98.
In Beck, the Supreme Court held that the death penalty may not be imposed
after a jury verdict of guilt of a capital offense, when the jury was not permitted to
consider a verdict of guilt of a lesser included non-capital offense and the evidence
would have supported such a verdict. 447 U.S. at 627, 638. “In the federal courts, it
has long been ‘beyond dispute that the defendant is entitled to an instruction on a
lesser included offense if the evidence would permit a jury rationally to find him
guilty of the lesser offense and acquit him of the greater.’” Id. at 635 (quoting Keeble
v. United States, 412 U.S. 205, 208 (1973) ). “Similarly, the state courts that have
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addressed the issue have unanimously held that a defendant is entitled to a lesser
included offense instruction where the evidence warrants it.” Id. at 635–36.
But the Supreme Court did not hold that a defendant is invariably entitled to
a jury instruction on a lesser included offense. Rather, there must be “evidence [that]
would permit a jury rationally to find him guilty of the lesser offense and acquit him
of the greater.” See id. at 635 (quoting Keeble, 412 U.S. at 208). In other words, “the
evidence [must] warrant[] it. ” See id. Beck bars imposition of the death penalty
“when the evidence would have supported such a verdict [on the lesser included
offense]” and the jury was not permitted to consider that offense. Id. at 627.
The ACCA did not unreasonably apply this rule. The ACCA evaluated all the
record evidence of intoxication and concluded that no reasonable jury could find that
Mr. Spencer’s intoxication inhibited “the requisite intent to commit capital murder.”
Spencer I, 58 So. 3d at 232. Because the court declined the jury instruction on the
ground that the “evidence would [not] permit a jury rationally to find [Mr. Spencer]
guilty of the lesser offense and acquit him of the greater[,]” its decision does not run
afoul of Beck. See Beck, 447 U.S. at 635 (quoting Keeble, 412 U.S. at 208) (alteration
added); see Early v. Packer, 537 U.S. 3, 8 (2002) (“Avoiding these pitfalls does not
require citation of our cases-indeed, it does not even require awareness of our cases,
so long as neither the reasoning nor the result of the state-court decision contradicts
them.”).
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Nor did the ACCA unreasonably interpret the facts. The court had evidence
that Mr. Spencer was a chronic cocaine user and had ingested some amount of
substances the night before and the morning of (several hours before) the shootings.
Spencer I, 58 So. 3d at 232. But “[Mr.] Spencer did not claim to be intoxicated at
the time of the shootings ” and “[t]here was no evidence concerning the effects, if
any, that the amounts of cocaine and other substances allegedly ingested the night
before and morning of the sh ootings had on [Mr.] Spencer at the time of the
shootings.” Id. Rather, the evidence showed that Mr. Spencer ingested an unknown
amount of substances, id. (“I had a little bit of [cocaine] powder left over from the
night before.” (alteration in original)), several hours before the shootings, with an
entirely unknown impact on his mental state. In the light of Mr. Spencer’s imprecise
allegations about the substances he consumed and when, the law did not require that
the jury be allowed to guess about whether the substances affected him, how they
affected him, and whether they were still affecting him at the time of the crime. Beck
does not mandate a jury instruction when a jury verdict on the issue would be based
entirely on conject ure. Accordingly, the ACCA determination that there was
insufficient evidence to support a voluntary intoxication jury instruction was not an
unreasonable determination in the light of the evidence.
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ii. Refusal To Charge Jury on Provocation Manslaughter
Mr. Spencer contends that “[t]he evidence presented at trial supported a
reasonable theory that [he] was provoked by the officers’ assaults and threatening
actions, and acting under the heat of passion, ” so the trial court should have
instructed the jury on the lesser-included offense of provocation manslaughter under
Ala. Code § 13A-6-3(a)(2). Doc. 1 ¶ 275. According to Mr. Spencer, the trial court’s
refusal to do so “deprived the jury of a third option between capital murder and
acquittal” and was contrary to clearly established federal law. Id. ¶ 275.
According to Mr. Spencer, the evidence showed that on the day of the
shootings, “the officers approached the apartment where Mr. Spencer lived and sold
drugs three separate times[,] ” and “[t]heir purpose was to harass and threaten Mr.
Spencer and the other occupants[.] ” Id. ¶ 272. He asserts that during these
confrontations, the officers “threatened Mr. Spencer and promised to come back to
the apartment later, placing Mr. Spencer in fear for his life. ” Id. Officer Owen
allegedly told Mr. Spencer during an earlier altercation that day that Officer Owen
had “enough body bags for [Mr. Spencer] too.” Id. According to Mr. Spencer, when
the officers returned the last time, he “was awakened by a loud commotion and a
snapping sound[,]” and “[he] heard sounds of a struggle. ” Id. ¶ 273. Mr. Spencer
contends that “Mr. Woods then ran into the bedroom holding his face like he was in
pain[,]” and while talking to Mr. Woods, Mr. Spencer turned around to find “a gun
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. . . pointed in his face .” Id. According to Mr. Spencer , the officers “snatched the
screen door off the hinges [,]” and “wrestled Mr. Woods to the floor, and began
beating on him.” Id. ¶ 274.
Mr. Spencer raised this claim on direct appeal. See Spencer I, 58 So. 3d at
230. The ACCA recognized as “well settled that even where the defendant commits
the killing due to a sudden heat of passion, an instruction on manslaughter is properly
refused where there is no evidence that that sudden heat of passion was caused by a
provocation recognized by law.” Id. at 244–45. And under Alabama law, there are
“three legal provocations sufficient to reduce murder to manslaughter: (1) when the
accused witnesses hi s . . . spouse in the act of adultery; (2) when the accused is
assaulted or faced with an imminent assault on himself; and (3) when the accused
witnesses an assault on a family member or close relative.” Id. at 245 (quoting
Rogers, 819 So. 2d at 662).
The ACCA rejected the claim:
Here, based on the evidence supporting Spencer ’s theory
of events, the events leading up to the shootings, even if
creating a sense of passion or mental or emotional
imbalance, did not constitute a legally recognized
provocation. It is apparent that neither the first (accused
witnesses his spouse commi tting adultery) nor the third
(accused witnesses an assault on a family member or close
relative) legally recognized provocation is applicable in
this case. As to whether the second legally recognized
provocation (whether Spencer was assaulted or faced with
an imminent assault on himself) is applicable under the
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facts of this case, we have reviewed the evidence and
answer that question in negative.

Even assuming, without finding as true, Spencer ’s
contentions that the officers made remarks during the
earlier encounter that caused Spencer to fear that the
officers would hurt or kill him, those comments were
made hours before the final encounter where the officers
were killed. Additionally, the init ial arguments were
between Woods and officers; Spencer willingly joined in
the verbal jousting, and again continued his verbal
sparring with a second officer even though the first officer
had, according to Spencer, made threatening comments.
Further, the first two officers Spencer encountered during
the final and fatal engagement were shot repeatedly in the
back while attempting to exercise a lawful arrest on
Woods. The evidence also indicates that Spencer mad e
statements following the earlier encounters with the
officers that if the officers returned he would “bust ‘em”
(R. 913), and that “they was gonna get” the officers if they
returned. (R. 1638.) Additionally, Spencer, knowing that
the officers had returned because he looked out the
window, exacerbated the situation by intentionally
grabbing his loaded SKS assault rifle and proceeding
toward the commotion in the kitchen. This evidence
further militates against any contention that the murders
were committed in a sudden passion and thus warranted
such a jury instruction. Because the evidence did not
support a charge on heat-of-passion manslaughter, the trial
court properly rejected Spencer ’s request for such a
charge.

Id.
As explained above, Beck does not categorically entitle a criminal defendant
to a jury instruction on a lesser included offense; there must be sufficient evidence
for a verdict on that offense. Consistent with this rule, the ACCA concluded that the
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evidence was insufficient to support a verdict on provocation manslaughter , so Mr.
Spencer was not entitled to a jury instruction on provocation manslaughter. Having
carefully reviewed Mr. Spencer’s petition and the evidentiary record, this court
cannot conclude that the ACCA unreasonably applied clearly established federal law
or made an unreasonable factual determination. Accordingly, Mr. Spencer is entitled
to no habeas relief on this claim.
iii. Refusal To Charge Jury on Self-Defense

Mr. Spencer contends that “[i]n denying Mr. Spencer’s requested instruction
on self-defense, the trial court deprived the jury of critical information and de nied
Mr. Spencer a fair trial.” Doc. 1 ¶ 287. He contends that “this ruling was contrary to
clearly established federal law.” Id. ¶¶ 280, 287. According to Mr. Spencer, “[t]he
evidence presented at trial showed that [he] was harassed and threatened by the
officers, and at the time of the shootings, faced an imminent deadly assault on
himself.” Id. ¶ 282. Mr. Spencer contends that despite this evidence, “[i]nstead of
giving the instruction because there was some evidence of self-defense, as the law
requires, the judge refused to give the instruction because he decided that other
evidence undermined it. ” Id. ¶ 284. “In denying Mr. Spencer ’s request for a jury
instruction on self-defense, the trial judge substituted his judgment of the inferences
to be drawn from the evidence for the jury’s.” Id.
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Mr. Spencer raised this issue on direct appeal. Spencer I , 58 So. 3d at 240.
The ACCA explained that under Alabama law, “[a]n accused has the right to have
the jury charged on any material hypothesis which the evidence in his favor tends to
establish.” Id. (internal quotation marks omitted) (quoting Williams v. State, 938 So.
2d 440, 444–45 (Ala. Crim. App. 2005)). But “the court should not instruct on the
law of self-defense where there is no evidence to sustain the plea [,]” and “[a] trial
judge may properly refuse to charge the jury on self -defense where he determines
that the defendant could not set up self-defense under the facts.” Id. at 241 (internal
quotation marks omitted) (quoting King v. State, 478 So. 2d 318, 319–22 (Ala. Crim.
App. 1985)). The ACCA thoroughly traced Alabama law regarding jury instructions
on self-defense, see id. at 240–43, and explained that a “citizen [i]s not authorized
to kill an officer in resisting the illegal arrest, except in self-defense where the force
used against the citizen was felonious rather than merely forcible,” id. at 243 (citing
Ex parte Edwards , 452 So. 2d 503 (Ala. 1983)). The ACCA also explained that
under Alabama law, “a person was authorized under common law to kill an officer
in resisting an unlawful arrest only where necessary to save his own life or to save
himself from serious bodily harm, provided that the necessity was real or apparent.”
Id. (citing Odoms v. State, 359 So. 2d 1162 (Ala. Crim. App. 1978)).
The ACCA then rejected this claim:
The undisputed evidence indicated that the officers were
at the residence to execute an outstanding arrest warrant
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on Woods; that Woods refused to comply with the
officers’ demands to come outside and instead turned and
fled into the apartment; and that the officers pursued
Woods into the apartment. The undisputed evidence
further indicated that Spencer had been asleep at the time
the officers arrived; that he awakened, hearing commotion
in the other end of the apartment; that he looked outside
and saw police vehicles; that he rushed toward the
commotion; that when he encountered the officers he
fatally shot Officers Owen and Chisolm in the kitchen area
of the apartment; that he turned and fatally shot Officer
Bennett, who was near the front door of the apartment; and
that he shot Officer Collins outside the back door of the
apartment and fired additional shots at Officer Collins as
Collins took cover behind his police car. The
uncontroverted evidence further indicated that Spencer
fired a final shot point-blank into Officer Bennett’s head,
as Officer Bennett lay on the ground outside the
apartment. Additionally, although neither witness
believed at the time that Spencer was serious, one witness
testified that Spencer had made statements about the
officers, following the initial encounter the morning of the
shooting, indicating that he was going to “bust ‘em,”
which the witness said he interpreted to mean that Spencer
was going to shoot the officers if they returned. (R. 913.)
Another witness testified that she heard Spencer and
Woods remark that “they was gonna get” the officers if
they returned. (R. 1638.)

Spencer may indeed have had a fear of the officers, but
based on the evidence presented, we cannot say that that
fear was reasonable. Further, Spencer ’s actions
contributed to the earlier confrontations with the officers;
he made statements between the earlier encounter and the
fatal encounter indicating that he would kill the officers if
they returned. Additionally, the evidence indicates that,
upon hearing the commotion in the kitchen and looking
outside and seeing police vehicles, Spencer had time to
attempt to retreat by attempting to hide or escape from a
window; however, he armed himself and proceeded to
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advance toward the commotion and a certain encounter
with officers. He shot the first two officers repeatedly in
the back and the third officer at point-blank range in the
head some period of time after that officer had been
mortally wounded by a gunshot to the chest that impacted
numerous internal organs and the spinal cord. Finally,
Spencer failed to meet his burden of showing that the
officers were in the apartment with a felonious intent.
Having reviewed the applicable legal authority, the
arguments of the parties, and the record before this Court,
we cannot say that reversible error occurred as to this
claim. Therefore, we conclude that the trial court did not
commit reversible error in refusing to instruct the jury on
self-defense.

Id. at 243–44.
This court cannot say that the ACCA ruling unreasonably applied federal law.
The ACCA recited the relevant evidence in great detail (noting that much of it was
undisputed) and concluded that Mr. Spencer’s evidence could not support a finding
of self-defense under the controlling legal standard. Spencer I, 58 So. 3d at 244. That
determination was not objectively unreasonable.
Mr. Spencer contends that the trial court was simply “substitut[ing] his
judgment of the inferences to be drawn from the evidence for the jury’s” and
ignoring the “ however slight ” evidence that Mr. Spencer produced about self -
defense. Doc. 1 ¶¶ 284–85. But he fails to account for the reality that Alabama law
limits the availability of self -defense defense for persons resisting arrest. As the
ACCA explained, under Alabama law, a person resisting an arguably illegal arrest
may assert self-defense only “where the force used against the citizen was felonious
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rather than merely forcible. ” Spencer I, 58 So. 3d at 243. Here, “[t]he undisputed
evidence indicated that the officers were at the residence to execute an outstanding
arrest warrant on Woods,” id., rather than conducting an illegal arrest. And in any
event, Mr. Spencer did not develop evidence that the officers executed that warrant
with felonious intent. Id. at 244. Similarly, Mr. Spencer failed to establish that killing
the officers was a “real or apparent ” necessity to save his own life ; he could have
attempted to retreat or escape, but he armed himself and approached the conflict. Id.
On this record, this court cannot say that the ACCA made an erroneous factual
determination, let alone an unreasonable one . Accordingly, Mr. Spencer is due no
habeas relief on this claim.
3. Prosecution’s Alleged Interference With Mr. Spencer’s Right To
Present Evidence In His Defense
Mr. Spencer argues that “[p]ost-conviction investigation has revealed that the
prosecution threatened to charge Ms. Williams as an accessory to the instant capital
offense, to induce her to testify falsely at Mr. Spencer ’s trial,” Doc. 1 ¶ 293, which
“interference . . . infringed on Mr. Spencer ’s rights,” id. ¶ 295. According to Mr.
Spencer, “[c]ontrary to what she testified, Ms. Williams now denies that Mr. Woods
or Mr. Spencer ever plotted to kill police officers or that she ever heard them engage
in any conversation on that topic. ” Id. ¶ 193. “Ms. Williams also asserts that
prosecutors pressured her not to testify that police entered the apartment with their
guns drawn.” Id. Mr. Spencer contends that if Ms. Williams had not been coerced
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into testifying falsely, her testimony “would have been both material and favorable
to the defense.” Id. But without that testimony, “the prosecutor repeatedly used Ms.
Williams’s false testimony to attack Mr. Spencer’ s self-defense assertions during
closing argument.” Id. ¶ 294.
The ACCA held that the trial court “correctly found that this claim was
procedurally barred based on Rule 32.2(a)(3) and Rule 32.2(a)(5)” because “it could
have been raised at trial or on appeal but was not.” Spencer R.32, 201 So. 3d at 621.
And “claims barred under Rule 32.2(a)(3) and (a)(5) are procedurally defaulted from
federal habeas review.” Boyd v. Comm’r, Ala. Dep’t of Corr., 697 F.3d 1320, 1335
(11th Cir. 2012).
Mr. Spencer contends that “[t]he state procedural rules cited by the Court of
Criminal Appeals are inadequate to bar this Court’s review of Mr. Spencer’s claims,
as they were incorrectly and unfairly applied in this case. ” Doc. 21 at 8. According
to Mr. Spencer, his “claims were summarily dismissed, without a hearing or other
factual development, on the basis of the procedural bar embodied in Rules 32.3(a)(3)
and 32.2(a)(5). This dismissal directly contradicts precedent from Alabama’s highest
court.” Id. at 8–11 (citing Ex parte Beckworth, 190 So. 3d 571 (Ala. 2013) , and Ex
parte Hodges, 147 So. 3d 973 (Ala. 2011)).
The summary dismissal of Mr. Spencer ’s claims did not rest on an
independent and adequate state ground and thus does not bar this court’s review. The
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dismissal meets the first two parts of the Eleventh Circuit’ s three -part test to
determine whether the ruling rests on an independent and adequate state rule. See
Ward, 592 F.3d at 1156–57. The circuit court dismissed the claims—and the ACCA
upheld the dismissal—on the ground that Mr. Spencer had not satisfied Rule 32.2’s
procedural bar. See Spencer R.32, 201 So. 3d at 621. The dismissal involved no
interpretation of federal law. See id. But the state court’s application of Rule 32.2
was not “firmly established and regularly followed and not applied ‘in an arbitrary
or unprecedented fashion.’” See Ward, 592 F.3d at 1157 (quoting Judd, 250 F.3d at
1313).
Indeed, the ACCA application of Rule 32.2 in this regard contravened
Alabama law. See Ex parte Hodges, 147 So. 3d at 973. In Ex parte Hodges, the
Supreme Court of Alabama explained that “[a] claim may not be summarily
dismissed because the petitioner failed to meet his burden of proof at the initial
pleading stage, a stage at which the petitioner has only a burden to plead.” Id. at 976
(quoting Johnson v. State , 835 So. 2d 1077, 1079 –80 (Ala. Crim. App. 2001)).
“Rather, at the pleading state, a petitioner must only provide a clear and specific
statement of the grounds upon which relief is sought.” Id. (internal quotation marks
omitted) (quoting Johnson, 835 So. 2d at 1079–80). “Once a petitioner has met his
burden of pleading so as to avoid summary disposition . . . , he is then entitled to an
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opportunity to present evidence in order to satisfy his burden of proof.” Id. (internal
quotation marks omitted) (quoting Johnson, 835 So. 2d at 1079–80).
In Ex parte Hodges, the petitioner “[i]n his Rule 32 petition . . . asserted the
manner in which the answers of six potential jurors allegedly were nonresponsive to
specific voir dire questions.” Id. at 977. “When the State sought a summary dismissal
of the claim, [Mr.] Hodges replied that his counsel could not have known about the
alleged juror misconduct in time to raise the issue at trial or on appeal.” Id. And the
Supreme Court of Alabama found “[n]othing to the contrary” in the record. Id. But
the trial court dismissed Mr. Hodges’ s petition, and the ACCA held tha t Mr.
Hodges’s juror misconduct claim was barred by Rule 32.2(a)(5) because it could
have been raised at trial or on appeal. Id. at 975. The Supreme Court of Alabama
reversed on the ground that Mr. Hodges had only a burden to plead, not a burden to
prove. Id. at 976–77. And because “[Mr.] Hodges ha[d] met his initial burden of
pleading a claim of juror misconduct, and the State ha[d] met its burden of asserting
a preclusion[,]” and “[t]here being no evidence on the record that [Mr.] Hodges knew
or reasonably should have known of the jurors’ alleged lack of candor in time to
raise the issue on appeal, ” summary dismissal pursuant to Rule 32.2 was
inappropriate. Id. at 977.
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Despite the apparent likeness to Ex parte Hodges , the ACCA upheld the
summary dismissal of Mr. Spencer’s claims pursuant to Rule 32.2. Spencer R.32,
201 So. 3d at 621. The ACCA wrote:
Spencer first argues that the circuit court’s application of
the procedural bars contained in Rule 32.2, Ala. R. Crim.
P., to several of his claims conflicts with the Alabama
Supreme Court’s decisions in Ex parte Beckworth, 190 So.
3d 571 (Ala. 2013), and Ex parte Hodges, 147 So. 3d 973
(Ala. 2011). Specifically, Spencer argues that the circuit
court violated Supreme Court precedent in Beckworth and
Hodges by summarily dismissing well -pleaded claims
“merely on the basis of the State ’s suggestion of
preclusion....” (Spencer’s brief, at 94.)

This Court disagrees with Spencer ’s characterization of
the Supreme Court’s holdings in Beckworth and Hodges.
The Supreme Court in Beckworth found reversible error in
the circuit court’ s summary dismissal of Beckworth’ s
claim alleging that the State had failed to disclose
evidence. The Court framed the issue as follows:

“In this case, we must decide whether a petition
grounded on Rule 32.1(a) must plead facts tending
to negate the affirmative defenses of preclusion
under Rule 32.2(a)(3) and (5) in order to survive
summary disposition under Rule 32.7(d). More
specifically, must a petition allege facts indicating
that the claim could not have been raised at trial or
on appeal in order to ‘state a claim’ under Rule
32.1(a)?”

Beckworth, 190 So. 3d at 573–74. In conclusion, the Court
held: “[W]e must conclude that Beckworth ’s Rule 32
petition should not have been dismissed on the ground that
his claim for relief under Rule 32.1(a) lacked allegations
negating the preclusive bars of Rule 32.2(a)(3) and (5). ”
190 So. 3d at 574. The primary reason for the Supreme
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Court’s holding in Beckworth was that the circuit court
dismissed the postconviction petition only three days after
the State had asserted preclusion grounds and without
affording Beckworth the opportunity to address the State’s
pleaded grounds of preclusion.

In Ex parte Hodges, the Supreme Court considered the
summary dismissal of a claim of juror misconduct after
Hodges specifically responded to the State ’s preclusion
argument as to why the claim was not procedurally barred.
The Supreme Court stated:

“The State’s argument confuses and conflates the
requirements of pleading and proof. In his Rule 32
petition Hodges asserted the manner in which the
answers of six potential jurors allegedly were
nonresponsive to specific voir dire questions. When
the State sought a summary dismissal of the claim,
Hodges replied that his counsel could not have
known about the alleged juror misconduct in time to
raise the issue at trial or on appeal. Nothing to the
contrary appears on the record. Indeed, it is
somewhat disin genuous for the State to fault
Hodges for providing no evidence in support of his
allegations when it was the State that successfully
persuaded the trial court to forgo a hearing at which
such evidence could have been presented.

“In short, Hodges has met his initial burden of
pleading a claim of juror misconduct, and the
State has met its burden of asserting a
preclusion. There being no evidence on the
record that Hodges knew or reasonably should
have known of the jurors’ alleged lack of candor
in time to raise the issue on appeal, Hodges is
entitled to an evidentiary hearing on his claim.”

147 So. 3d at 977 (footnote omitted).

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In neither Beckworth nor Hodges did the Supreme Court
reverse long -established law that a claim may be
summarily dismissed after the State pleads a ground of
preclusion and that preclusion ground is not addressed by
the petitioner in his response to the State ’s assertions.
Indeed, such a conclusion would place a heavy burden on
trial courts. Here, Spencer pleaded certain claims, the State
asserted grounds of preclusion related to those claims,
Spencer did not answer the State ’s preclusion arguments,
and the circuit court summarily dismissed those claims
based on the preclusion grounds of Rule 32.2(a), Ala. R.
Crim. P.

The circuit court did not violate the Supreme Court ’s
holdings in Beckworth and Hodges by summarily
dismissing the following claims even though they were
sufficiently pleaded.

Id. at 620–21.
The record refutes the distinctions the ACCA drew between Ex parte Hodges,
Ex parte Beckworth, and Mr. Spencer’s case. The ACCA acknowledged that in Ex
parte Hodges , Mr. Hodges “specifically responded to the State ’s preclusion
argument as to why the claim was not procedurally barred.” Id. at 621. But according
to the ACCA, that is not what happened here: “[Mr.] Spencer pleaded certain claims,
the State asserted grounds of preclusion related to those claims, [Mr.] Spencer did
not answer the State ’s preclusion arguments, and the circuit court summarily
dismissed those claims based on the preclusion grounds of Rule 32.2(a), Ala. R.
Crim. P.” Id. And according to the ACCA, dismissing Mr. Spencer ’s claims when
he failed to respond to the preclusion arguments was materially different from— and
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allowed by—Alabama precedent. Id. But that is not what happened in this case. In
Mr. Spencer’s reply to his Second Amended Rule 32 Petition for Post -Conviction
Relief, he specifically addressed the State’s preclusion argument. See Doc. 17-42 at
25–26. Just as Mr. Hodges did, Mr. Spencer explained why the issue “could not
reasonably have been discovered during trial”—“Ms[.] Williams did not disclose
that information to trial counsel. Rather, Ms. Williams revealed the information
during post-conviction investigation.” Id. at 25. Mr. Spencer cited Ex parte Hodges
and specifically contested that the preclusion defense applied. Id. at 25–26.
Because the ACCA erroneously faulted Mr. Spencer for not answering the
State’s preclusion arguments, this court declines to find that the procedural bar in
Rule 32.2 was “not applied ‘in an arbitrary or unprecedented fashion.’” Ward, 592
F.3d at 1157 (quoting Judd , 250 F.3d at 1313). Accordingly, the state court’ s
dismissal of Mr. Spencer’s claims under Rule 32.2 does not bar this court’s review.
This court thus reviews this claim de novo. See Williams v. Alabama, 791 F.3d
1267, 1273 (11th Cir. 2015) . The court is “not confined to the state -court record.”
Id. “If § 2254(d) does not bar relief, then an evidentiary hearing may be needed.” Id.
(quoting Mosley v. Atchison, 689 F.3d 838, 844 (7th Cir. 2012)).
As recounted above, Mr. Spencer argues that his right to present witnesses in
his defense was violated because the prosecutors threatened to charge Ms. Williams
as an accessory to the murders. See Doc. 1 ¶¶ 288–92. He cites Webb v. Texas, 409
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U.S. 95 (1972), and Demps v. Wainwright, 805 F.2d 1426 (11th Cir. 1986), for the
proposition that “[s]ubstantial interference with a defense witness’s free and
unhampered choice to testify violates due process rights of the defendant” and that
“[w]hen such a violation of due process rights occurs, a court must reverse the
conviction without regard to prejudice to the defendant. ” Doc. 1 ¶ 288 (quoting
Demps, 805 F.2d at 1433).
The State does not respond to Mr. Spencer’s arguments in its brief, and when
answering Mr. Spencer’s petition, the state asserted only that Mr. Spencer’s claim
in this respect is procedurally defaulted. See Doc. 18 ¶¶ 57, 57(a).
Due process requires that “criminal defendants must be afforded the
opportunity to present [witnesses and] evidence in their favor.” United States v.
Hurn, 368 F.3d 1359, 1362 (11th Cir. 2004) ( citing Specht v. Patterson, 386 U.S.
605, 610 (1967)). Government interference with witness testimony thus violates due
process when it is substantial, see Demps, 805 F.2d at 1433, such that the
interference “worked to deprive ” the defendant “of a witness who could have
testified on his behalf,” United States v. Duperval, 777 F.3d 1324, 1335 (11th Cir.
2015) (quoting United States v. Garmany, 762 F.2d 929, 937 (11th Cir. 1985)).
“Examples of substantial interference include singling out a witness to assure
the witness that he would be prosecuted and convicted of perjury, . . . prohibiting a
codefendant from testifying in any manner if he accepts a plea agreement, . . . and
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threatening that the government will retaliate if the defendant continues to testify. ”
Id.
In Webb, the Supreme Court reversed a conviction after the trial judge
admonished a defense witness that his testimony could be used against him, and that
lying on the stand “ would get [the witness] convicted of perjury and that [the
conviction] would be stacked onto ” the witnesses other criminal charges. 409 U.S.
at 96. That admonition caused the witness to refuse to testify, and the Supreme Court
held that “the judge’s threatening remarks, directed only at the single witness for the
defense, effectively drove that witness off the stand, and thus deprived the petitioner
of due process of law under the Fourteenth Amendment. ” Id. at 96, 98. In another
case, the Supreme Court held that substantial interference could occur where the
government deported a material defense witness. See Valenzuela-Bernal, 458 U.S.
at 872. And in Demps, the Eleventh Circuit affirmed a district court finding that there
was no substantial interference with a witness’s testimony when the trial court
determined the petitioner’s allegations were not substantiated. See 805 F.2d at 1433,
1435.
Mr. Spencer’s arguments fail because even if the court assumes the truth of
his allegations, they are insufficient to establish actionable interference. Mr.
Spencer’s allegations are not allegations that the prosecution (or the court) drove
Ms. Williams off the stand or deprived Mr. Spencer of her testimony. Indeed, n o
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judicial or government action drove Ms. Williams off the stand— she testified in Mr.
Spencer’s defense (after testifying on behalf of the prosecution at a preliminary
hearing on July 30, 2024) and was subjected to a lengthy cross- examination by the
prosecution. See Doc. 17-27 at 134–49, 151.
During that cross- examination, the prosecutor impeached Ms. Williams
repeatedly with a statement that she gave the day after the incident. See id. at 135
(Q.: “Is that what you told them the very next day?”). And he elicited testimony that,
before the shooting, Mr. Spencer and Mr. Woods said that “if [the police] c[a]me
back [to the apartment], they was gonna get them.” Id. at 148.
Ms. Williams chose to testify regardless of what prosecutors said to her. And
as the cross examination makes clear, her testimony contradicted what she had told
police immediately after the incident. So any alleged threats did not deter Ms.
Williams from testifying to a version of events that differed from her previous
statements.
Further, any alleged interference falls short of what controlling precedent
holds is “substantial. ” Indeed, the government did not make Ms. Williams
inaccessible to Mr. Spencer . N or did she choose to testify on the prosecution ’s
behalf, as she had previously done in Mr. Spencer’s case. Mr. Spencer’s counsel was
given a full and fair opportunity to examine Ms. Williams, and he did so at trial. Mr.
Spencer’s due process rights were not violated in this respect.
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What’s more, the testimony that Ms. Williams would have allegedly given if
the prosecution had not threatened her would have made no difference in Mr.
Spencer’s case. Mr. Spencer asserts that Ms. Williams would now testify that (1)
Mr. Spencer never “plotted to kill police officers” and (2) “that Officer Chisho lm
aimed his weapon” at Mr. Spencer when the officers entered the apartment. Doc. 1
¶ 293.
But Mr. Spencer’ s argument is misplaced. As discussed several times
throughout this opinion, Mr. Spencer was not entitled to a jury instruction on self -
defense, nor any lesser included offenses, because (1) the officers were executing a
lawful arrest warrant and (2) there was no evidence that those officers used felonious
force in doing so. See Part III.B.2., supra. Ms. Williams’s proffered testimony does
not change that —even if Officer Chisholm entered the apartment with his gun
drawn, there is no evidence that h e had a felonious intent in doing so , and Mr.
Spencer has identified no law indicating that it is felonious for an officer to draw his
weapon when executing an arrest warrant. Mr. Spencer’s argument also ignores that
Ms. Williams did testify at trial that an officer had his gun out during the incident.
See Doc. 17-27 at 130–31. Accordingly, Mr. Spencer is due no habeas relief on this
claim.
As explained below, the court finds that Mr. Spencer is not entitled to
discovery or an evidentiary hearing on any of his claims. But particularly as to this
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claim, Mr. Spencer is not entitled to discovery or an evidentiary hearing because, as
explained above, any evidence that Mr. Spencer alleges he may uncover would not
change the outcome of his proceedings. Further, the record as a whole makes clear
that Mr. Spencer and the State each had ample opportunity to inquire into Ms.
Williams’s testimony well before Mr. Spencer’s post-conviction investigation given
that she had previously testified on behalf of the prosecution.
A complete review of Mr. Spencer ’s legal arguments and the record in this
case makes clear that Mr. Spencer is due no habeas relief on this claim.
4. Alabama’s Method Of Execution
Mr. Spencer contends that “ Alabama’s lethal injection protocol poses a
substantial risk of inflicting unnecessary pain, and therefore . . . constitutes cruel and
unusual punishment. ” Doc. 1 ¶ 296. “Issues sounding in habeas are mutually
exclusive from those sounding in a § 1983 action.” McNabb v. Comm’r Ala. Dep’t
of Corr. , 727 F.3d 1334, 1344 (11th Cir. 2013) . “‘An inmate convicted and
sentenced under state law may seek federal relief under two primary avenues:’ a
petition for habeas corpus or a complaint under 42 U.S.C. § 1983. ” Id. (quoting
Hutcherson v. Riley, 468 F.3d 750, 754 (11th Cir. 2006)). “The line of demarcation
between a § 1983 civil rights action and a § 2254 habeas claim is based on the effect
of the claim on the inmate ’s conviction and/or sentence. ” Hutcherson, 468 F.3d at
754. “When an inmate challenges the ‘circumstances of his confinement’ but not the
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validity of his conviction and/or sentence, then the claim is properly raised in a civil
rights action under § 1983. ” Id. (quoting Hill v. McDonough , 547 U.S. 573, 579
(2006)). By contrast, “habeas corpus law exists to provide a prisoner an avenue to
attack the fact or duration of physical imprisonment and to obtain immediate or
speedier release.” Valle v. Sec’y, Fla. Dep’t of Corr., 654 F.3d 1266, 1267 (11th Cir.
2011).
“Usually, an inmate who challenges a state’s method of execution is attacking
the means by which the State intends to execute h[im] , which is a circumstance of
his confinement.” McNabb, 727 F.3d at 1344. “It is not an attack on the validity of
his conviction and/or sentence.” Id. So “[a] § 1983 lawsuit, not a habeas proceeding,
is the proper way to challenge lethal injection procedures.” Tompkins v. Sec’y, Dep’t
of Corr., 557 F.3d 1257, 1261 (11th Cir. 2009).
Accordingly, the court DISMISSES WITHOUT PREJUDICE Mr.
Spencer’s claim regarding Alabama’s method of execution. See McNabb, 727 F.3d
at 1344 ( “Hence, we conclude that the district court did not err in dismissing
McNabb’s lethal injection challenge in his federal habeas petition. That avenue of
relief is still available to him in a § 1983 action.”).
5. The Cumulative Effect Of T he Alleged Errors Does Not Entitle Mr.
Spencer To Habeas Relief
According to Mr. Spencer, “[t]he cumulative effect of the errors of federal law
identified above violate s “Mr. Spencer ’s rights to due process and a fair trial. ”
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Doc. 1 ¶ 303. The ACCA ruled that this claim was procedurally barred under
Alabama Rule of Criminal Procedure 32.2 . Spencer R.32, 201 So. 3d at 623. Mr.
Spencer argues that this ruling did not rest on an adequate and independent state
ground. Doc. 1 ¶ 303; Doc. 21 at 7–11. But Mr. Spencer has not cited any Alabama
law to support t his argument, so the court cannot conclude that Alabama ’s
procedural default doctrine was applied arbitrarily. See Lee v. Kemna, 534 U.S. 362,
375 (2002); Ward, 592 F.3d at 1156–57.
IV. DISCOVERY & EVIDENTIARY HEARING
Mr. Spencer has not shown an entitlement to habeas relief. Accordingly, the
court will not hold an evidentiary hearing or allow discovery. See Allen v. Sec’y, Fla.
Dep’t of Corr., 611 F.3d 740, 763 (11th Cir. 2010); Cullen, 563 U.S. at 183–84.
“A habeas petitioner, unlike the usual civil litigant in federal court, is not
entitled to discovery as a matter of ordinary course. ” Bracy v. Gramley, 520 U.S .
899, 904 (1997). Furthermore, the “broad discovery provisions” of the Federal Rules
of Civil Procedure do not apply in habeas proceedings. Harris v. Nelson, 394 U.S.
286, 295 (1969).
Rule 6 of the Rules Governing § 2254 Cases states that “[a] judge may, for
good cause, authorize a party to conduct discovery under the Federal Rules of Civil
Procedure and may limit the extent of discovery.” Rules Governing § 2254 Cases,
Rule 6(a) (emphasis added). The rule embodies the principle that a court must permit
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discovery in a proceeding only “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 . . . entitled to relief. ” Bracy, 520 U.S. at 908 –09 (quoting
Harris, 394 U.S. at 300). “[G]ood cause for discovery cannot arise from mere
speculation.” Arthur v. Allen, 459 F.3d 1310, 1311 (11th Cir. 2006).
Mr. Spencer asserts that he should have been provided an opportunity to
engage in discovery. Doc. 1 ¶¶ 15–17; id. at 147. Mr. Spencer has not established
“good cause” for permitting additional discovery on his claims. Mr. Spencer has not
alleged with specificity what he intends to find and prove, and he has not shown that
if the facts were more fully developed, he may be able to demonstrate entitlement to
relief. Accordingly, he is entitled to no discovery.
“[B]efore a habeas petitioner may be entitled to a federal evidentiary hearing
on a claim
that has been adjudicated by the state court, he must demonstrate a clearly
established federal-law error or an unreasonable determination of fact on the part of
the state court, [and he must do so] based solely on the state court record.” Landers
v. Warden, Att’y Gen. of Ala., 776 F.3d 1288, 1295 (11th Cir. 2015). “ Once a
petitioner has demonstrated such an error or unreasonable determination, ‘the
decision to grant [an evidentiary] hearing rests in the discretion of the district court.’”
Id. (citing Schriro v. Landrigan, 550 U.S. 465, 468 (2007)). Because the court has
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found that Mr. Spencer identified no requisite error or unreasonable determination,
Mr. Spencer is not entitled to an evidentiary hearing.
V. CONCLUSION
For the reasons stated above, the court DENIES Mr. Spencer’s request for an
evidentiary hearing and for discovery, Doc. 1 at 147– 48, DENIES Mr. Spencer’s
request for habeas relief, and DISMISSES his Section 2254 petition. This court will
enter a Final Judgment contemporaneously with this Memorandum Opinion.
Under Rule 11(a) of the Rules Governing Section 2254 Cases in the United
States Courts, this court must issue or deny a certificate of appealability when it
enters a final order adverse to the habeas petitioner. This court may issue a certificate
of appealability “only if the applicant has made a substantial showing of the denial
of a constitutional right. ” 28 U.S.C. § 2253(c)(2). To make such a showing, a
“petitioner must demonstrate that reasonable jurists would find the district court’ s
assessment of the constitutional claims debatable or wrong,” Slack v. McDaniel, 529
U.S. 473, 484 (2000), or that “the issues presented were adequate to deserve
encouragement to proceed further,” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)
(internal quotation marks and citation omitted). For claims rejected without reaching
the merits, a petitioner must demonstrate that reasonable jurists would debate
whether “the petition states a valid claim of the denial of a constitutional right” and
“the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484.
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The court finds that Mr. Spencer ’s claims do not satisfy these standards for
granting a certificate of appealability. Accordingly, this court DENIES Mr. Spencer
a certificate of appealability.
DONE and ORDERED this 1st day of April, 2026.

_________________________________
ANNA M. MANASCO
UNITED STATES DISTRICT JUDGE

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