FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

December 16, 2003

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 01-16901

________________________

D. C. Docket No. 00-00941-CV-BU-E

JERRY PAUL HENDERSON,

Petitioner-Appellant,

versus

MICHAEL W. HALEY, Commissioner of

the Alabama Department of Corrections,

ATTORNEY GENERAL FOR THE STATE

OF ALABAMA,

Respondents-Appellees.

________________________

Appeal from the United States District Court

for the Northern District of Alabama

_________________________

(December 16, 2003)

Before TJOFLAT, ANDERSON and HULL, Circuit Judges.

ANDERSON, Circuit Judge:

Jerry Paul Henderson ("Henderson") was convicted of murder in the state

courts of Alabama and received a death sentence. The district court denied
2

Henderson's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on

each of the several asserted constitutional claims for relief. In denying Henderson's

petition, the district court concluded that many of Henderson's claims, including

those alleging ineffective assistance of trial counsel, had been procedurally

defaulted by Henderson's voluntary dismissal of his Rule 32 state post-conviction

petition prior to any adjudication on the merits. After denying the writ, the district

court granted Henderson a certificate of appealability to review the district court's

rejection of the following two alternative arguments of "cause" to excuse his

procedural default: (1) Henderson's waiver of his right to proceed under Alabama

Rule 32 was not knowing, voluntary, and intelligent, because Henderson lacked a

sufficient understanding of his rights and the actual legal claims being dismissed;

and (2) Henderson's waiver was involuntary because it was the product of the

undue influence of a Rule 32 counsel saddled by conflicting interests. 

I. BACKGROUND

On May 19, 1988, Henderson was found guilty of capital murder and

sentenced to death in Talladega County Circuit Court in Talladega, Alabama. His

conviction and sentence were subsequently affirmed by the Alabama Court of
1

 This published opinion affirming Henderson's conviction and sentence provides a full,

concise recitation of the historical facts concerning the underlying criminal offense. See 583

So.2d at 280-81.

2

 Henderson's trial attorneys apparently represented him throughout the direct review of

his conviction and sentence, while new counsel initiated these state post-conviction proceedings.

3

 Judge Fielding also presided over Henderson's 1988 capital trial.

3

Criminal Appeals. Henderson v. State, 583 So.2d 276 (Ala.Crim.App. 1990).1

The Supreme Court of Alabama affirmed, Ex parte Henderson, 583 So.2d 305

(Ala. 1991), and the Supreme Court of the United States denied Henderson's

petition for writ of certiorari, Henderson v. Alabama, 503 U.S. 908, 112 S.Ct.

1268, 117 L.Ed.2d 496 (1992).

A. State Post-Conviction Proceedings

On October 13, 1993, two Maryland attorneys filed a petition in the state

courts of Alabama on Henderson's behalf, seeking post-conviction relief pursuant

to Alabama Rule of Criminal Procedure 32.2

 Shortly thereafter, the two attorneys

sought and received a withdrawal as counsel due to financial inability to continue

on Henderson's behalf. The court then sought to replace Henderson's counsel, first

seeking the assistance of Lisa Borden, an Alabama attorney who had appeared as

local counsel along with the two Maryland attorneys. After Borden was unable to

find substitute counsel for Henderson, Judge Fielding3 granted her motion to

withdraw on July 30, 1996, and appointed Steve Giddens ("Giddens") of
4 See Henderson v. State, 733 So.2d 484, 485-88 (Ala.Crim.App. 1998) (quoting the

entire colloquy between Judge Fielding and Henderson).

5 See id. at 487 ("Do you understand that by filing this Rule 32 which is a post—collateral

action really—that you are saying that something happened in the trial back in 1988 that would

justify you getting a new trial. Do you understand that's what this Rule 32 is all about?").

4

Talladega to represent Henderson in the Rule 32 proceeding.

On April 22, 1997, approximately nine months after Giddens' appointment,

an evidentiary hearing was held in the Rule 32 proceeding. At that hearing, on

behalf of Henderson, Giddens moved to dismiss the Rule 32 petition. Giddens

explained that he had discussed the petition with Henderson and that his client was

satisfied with his trial counsel and did not want to continue the claims of

ineffective assistance or pursue any other challenges to his conviction and

sentence. Giddens told the court that he believed that Henderson was fully aware

of the situation and had plenty of time to consider the decision. Judge Fielding

engaged Henderson in an extensive colloquy regarding his decision to dismiss the

Rule 32 petition and its possible consequences.4

 

The court explained that Henderson’s Rule 32 petition set forth allegations

relating to his 1988 trial that would, if true, result in a new trial.5

 The court

explained to Henderson that the dismissal would significantly impair Henderson's

chances of any successful appeal from the Rule 32 proceeding as well as any
6 See id. ("Do you understand that by dismissing this petition for Rule 32 that you could

hurt any appeal that you may have further on in the state courts and also in the federal courts if

you decide to file a petition after today. Do you understand that?").

7 See id. ("Do you understand that by dismissing this petition that you could be speeding

up your date of execution? . . .. Do you understand by dismissing this petition that you are a step

closer to having your sentence to the electric chair carried out? Do you understand that."). 

8 See id. (reporting that to each of these questions by the court, Henderson responded,

"Yes, sir. I understand that.").

9 See id. ("And you are making this decision of your own free will, knowingly and

voluntarily. Is that correct.?" . . .. "Yes, sir. It is." . . .. "And no one has threatened you,

coerced you, made promises or tricked you into making this decision that you have told us about

today?" . . .. "No, sir they haven't.").

5

 chances of success in any subsequent action in federal court.6

 The court

explained that the dismissal could speed up the date of his execution and would

bring Henderson a step closer to having his sentence of death carried out.7

 To

each of the court's explanations, Henderson acknowledged that he understood.8

He also agreed that he was making his decision out of his own free will,

knowingly, and voluntarily, and that no one had threatened, coerced, made

promises, or tricked him into dismissing the petition.9 After this extensive

colloquy, the court found that Henderson's motion to dismiss his Rule 32 petition

was being made knowingly, intelligently, and voluntarily. As a result, Judge

Fielding granted Henderson's motion to dismiss from the bench, and on May 29,

1997 entered a formal order with findings of fact and conclusions of law

consistent with his findings.
6

Following the dismissal, Giddens and Henderson had no further

communications with each other. On July 10, 1997, counsel from the Equal

Justice Initiative in Montgomery, Alabama, filed a notice of appeal from the order

dismissing Henderson's Rule 32 petition. In October of 1997, Henderson's current 

 counsel took over and submitted a brief on behalf of Henderson to the Alabama

Court of Criminal Appeals.

On appeal, Henderson argued that he "did not voluntarily, knowingly, and

intelligently waive his post-conviction remedies under Rule 32," and asked the

court to "reverse the order dismissing his Rule 32 petition and remand it to the

circuit court for a full and fair evidentiary hearing." Henderson argued that he had

seen the petition for the first time just the day prior to the dismissal and was never

made aware of the specific allegations contained therein. Consequently, he

claimed that he could not under those circumstances effectively waive his postconviction remedies.

On August 14, 1998, the Alabama Court of Criminal Appeals affirmed,

holding that the circuit court was correct in finding that Henderson possessed

requisite mental competence to dismiss his petition and that he did so voluntarily,

knowingly, and intelligently. Henderson v. State, 733 So.2d 484 (Ala.Crim.App.

1998). In reaching its conclusion, the Alabama appellate court considered the
7

colloquy between Judge Fielding and Henderson, and noted that Henderson was

responsive and coherent during the colloquy and demonstrated "that he moved for

a dismissal of the petition voluntarily, knowingly, and intelligently with an

awareness of the consequences." Id. at 490. The court was satisfied that the record

adequately illustrated that Henderson "understood the legal options available to

him, and that he made a rational choice from those options." Id. 

On October 19, 1998, the Supreme Court of Alabama granted Henderson's

petition for writ of certiorari, but later reconsidered and quashed the writ on April

23, 1999. On October 27, 1999, Henderson filed a second Rule 32 petition in the

Talladega County Circuit Court which was dismissed pursuant to Rule 32.2(b)

(successive petitions) and (c) (statute of limitations) of the Alabama Rules of

Criminal Procedure.

B. Federal Post-Conviction Proceedings 

1. The 28 U.S.C. § 2254 Petition

On April 11, 2000, Henderson filed a petition for writ of habeas corpus in

the United States District Court for the Northern District of Alabama, pursuant to

28 U.S.C. § 2254, setting forth numerous constitutional claims for relief.

Respondents, Michael Haley as Commissioner of the Alabama Department of

Corrections, and William H. Pryor, Jr., the Attorney General of the State of
10 Any reference made in this opinion to "Giddens" refers to Steve Giddens, Henderson's

Rule 32 appointed counsel. Rod Giddens, Steve's brother, will be referred to hereinafter in this

opinion only by either his full name, as "Steve's brother," or simply as "Rod."

8

Alabama, argued that all of Henderson's claims that could have been raised in the

Rule 32 proceeding, including his claims of ineffective assistance of counsel, had

been procedurally defaulted. Some of these claims were raised in the Rule 32

petition dismissed by Henderson, while other claims could have been but were

never raised in the state courts at all. Alabama argued that Henderson failed to

properly exhaust these claims, and because the claims could no longer be raised in

the state courts, they had been procedurally defaulted. Several of Henderson's §

2254 claims, however, were raised either at trial or on direct appeal, and could not

have been raised in the Rule 32 petition. Respondents challenged these particular

claims only on the merits, conceding that they were not procedurally defaulted.

As to the claims included in the Rule 32 petition, Henderson argued that he

lacked a sufficient understanding of these claims at the time of his motion to

dismiss, and therefore, his dismissal was not knowing, voluntary, and intelligent. 

From that, Henderson argued, the district court should find sufficient "cause and

prejudice" to excuse his procedural default. Also, for the first time, Henderson

pointed out that Steve Giddens, his Rule 32 counsel, was the brother of one of the

prosecutors who participated in his 1988 trial. Rod Giddens,10 Steve's brother,
11 The magistrate judge's order outlined the following issues to be addressed at the

hearing:

(1) What petitioner was told by his attorney, Steve Giddens, prior to dismissing his

Rule 32 petition in state court;

(2) Whether Steve Giddens was aware at the time of petitioner's Rule 32

proceeding that his brother had prosecuted petitioner; whether he

discussed this fact with petitioner; and if he did not discuss this fact with

petitioner, why he did not do so; and

(3) If Steve Giddens did not discuss with petitioner the fact that his brother

had prosecuted petitioner, whether the lack of disclosure deprived

Henderson of the opportunity to make a knowing, intelligent and voluntary

waiver of his right to pursue collateral relief, such that the state court's

finding that petitioner knowingly, intelligently and voluntarily waived his

right to pursue collateral relief is an unreasonable determination in light of

the evidence presented. 

On June 18, 2001, Respondents objected to the holding of an evidentiary hearing, arguing

that Henderson had not developed a factual basis for this claim in his state court proceedings, and

therefore had not demonstrated that he was entitled to a hearing under 28 U.S.C. § 2254(e)(2). 

The magistrate judge overruled the objection and proceeded with the evidentiary hearing. 

9

second-chaired Henderson's prosecution, examined several witnesses, and

delivered parts of the state's closing argument in both the guilt-innocence and

penalty phases of the trial. Henderson also noted for the first time in his federal

petition, that Steve Giddens was a lifelong friend of the murder victim's brother, a

local police officer named Billy Haney. Because of alleged conflicts arising from

these relationships, Henderson argued that the dismissal of his Rule 32 petition

was the product of the undue influence of Steve Giddens, his Rule 32 counsel, and

therefore was not a knowing, voluntary, and intelligent waiver. On January 18,

2001, the magistrate judge entered an order directing an evidentiary hearing to be

held.11
Because we resolve this case in favor of Respondents on other grounds, we decline to address the

propriety of the magistrate judge's holding an evidentiary hearing. 

10

2. The Evidentiary Hearing

The evidentiary hearing on June 25, 2001, focused on three issues: (1) Was

Petitioner's attorney, Steve Giddens, acting under a conflict of interest when he

represented Petitioner at the hearing wherein Petitioner waived his right to the

Rule 32 hearing? (2) If so, was Petitioner aware of it? (3) If there was a conflict

of interest, did it prejudice Petitioner, i.e., did Petitioner's attorney improperly

influence Petitioner to dismiss his Rule 32 proceeding? At the hearing, two

witnesses testified: Steve Giddens and Jerry Henderson. Giddens testified that he

was admitted to the bar in 1986 and opened a solo practice in Talladega. In 1989,

he began to work for Legal Services Corporation of Alabama. Giddens returned to

solo private practice in 1991, and continued to practice in that capacity until he

was elected Talladega County's District Attorney in 1998. Talladega is a town of

about 20,000 people with perhaps thirty-five to forty attorneys with offices there

with about eight to ten of those attorneys principally involved in the practice of

criminal defense law. 

Giddens testified that his brother, Rod Giddens, was a former assistant

district attorney in Talladega County, and was one of the prosecuting attorneys at
12 Giddens explained that he had never known his brother to second-chair in a capital

murder case while working as a prosecutor. Giddens acknowledged, however, that the district

attorney's office had only four assistant prosecutors with two of those four individuals working

only part-time. Also, Rod Giddens' name appears on one of the face sheets of the record, and as

the direct-examiner of five prosecution witnesses and the deliverer of parts of two closing

arguments, his name appears within several different parts of the trial transcript. Because he

reviewed only small parts of the record in his preparation for the Rule 32 proceeding, Giddens

claimed that he never came across his brother's name in the record. 

11

Henderson's 1988 capital murder trial. Giddens testified that he and his brother

are close with one another, and visit each other "several times a week." No longer

a prosecutor, Rod now practices as a criminal defense attorney in Talladega. In

fact, at the time during Steve Giddens' representation of Henderson on his Rule 32

petition, he shared office space with Rod. Nevertheless, Giddens testified that

until he received the federal district court's notice to appear at the June 25, 2001

evidentiary hearing in this case, he was unaware that his brother had participated

in Henderson's 1988 prosecution.12

 

Steve Giddens also testified that he is friends with Billy Haney, a local

police officer and brother of the victim. Their friendship dates back to the 1970s. 

Giddens testified that he expressed his condolences to Billy Haney upon the death

of his brother. Giddens admitted that he never told Henderson about his

relationship with the victim's brother.

Giddens testified that at some point after Judge Fielding appointed him to

represent Henderson in the Rule 32 proceeding, he reviewed the court file
12

containing the Rule 32 petition. He determined that most of the claims set forth in

the petition were ineffective assistance of trial and appellate counsel. Giddens

reviewed a small part of the trial transcript that included "some of the voir dire"

and "some of the pretrial motions." Giddens testified that his quick review of

parts of the record convinced him that most of the claims in the Rule 32 petition

were without merit. Giddens testified that he based this opinion at least in part on

the fact that he personally "knew the attorneys and . . . just didn't feel like they

were ineffective" in light of what he had ascertained from the media coverage of

the 1988 trial. Giddens did not recall attending the Henderson trial, but "may

have." He conceded that it was a high profile case in Talladega generating a great

amount of publicity. Giddens acknowledged that from these reports, he had

already formulated an opinion that Henderson was probably guilty. Giddens even

conceded that he had felt that Henderson "had gotten what he deserved." Yet,

when Judge Fielding appointed him to represent Henderson, Giddens testified that

he did not pause, or feel any concern about the appointment.

Giddens stated that he first met Henderson at the county jail the day before

the April 22, 1997 hearing on the Rule 32 petition. During the approximately nine

months that had transpired since his appointment, no prior communication of any

sort had taken place with Henderson via mail, telephone, personal contact, or
13

otherwise. Giddens introduced himself, explained to Henderson the nature of the

proceeding, went over the nature of the claims with Henderson, and told him that

most of the claims alleged ineffective assistance of trial and appellate counsel. 

Giddens informed Henderson what evidence could be presented the next day at the

evidentiary hearing and what type of potential relief was available. Henderson

"responded that he was not sure what this was all about, that he did not have any

problem with his attorneys because he was guilty, and that they did as well as they

could do defending a guilty man." Giddens testified that he was surprised that

Henderson was so candid and that after Henderson stated that he had no

complaints about his trial attorneys, the "conversation took a turn in a different

direction." Henderson and Giddens agreed that they would dismiss the Rule 32

petition at the hearing the following day. Giddens testified that he was prepared to

go forward if Henderson so wished, and that if it was necessary for him to

adequately prepare his arguments, he was certain that he could have requested and

received a continuance. The entire meeting between Giddens and Henderson at

the jail apparently lasted approximately thirty minutes. 

Giddens did not recall reviewing any parts of the transcript of the penalty

phase and did not "have an opinion" as to whether trial counsel had adequately

presented mitigating circumstances to the jury. Giddens conceded that ineffective
14

assistance of counsel may be a basis for reversing a conviction or death sentence

even of a "guilty" individual. Giddens acknowledged that he never asked

Henderson if he wanted to be executed. Giddens testified that, based on their brief

interaction, he was confident that Henderson understood Alabama's capital murder

sentencing scheme, the concept of mitigating circumstances, and the fact that the

application of the death penalty requires more than the mere guilt as to the murder

itself. Giddens testified that his role during the Rule 32 proceedings was to

protect Henderson's rights, but stated that he was not required to dissuade

Henderson from dismissing the petition. Giddens did concede that "legal issues

should be ferreted out by the attorney." If Henderson had wanted him to go

forward, Giddens said that he would have. Giddens testified that he never

prompted Henderson to do anything. 

Henderson was the only other person who testified at the evidentiary

hearing. Henderson testified that he was not aware that he had been appointed

Rule 32 counsel after his Maryland attorneys withdrew as counsel. When he was

transported from prison to the Talladega County Jail in April of 1997 for the Rule

32 proceeding, he did not know the purpose of the trip. Then, when Henderson

met Giddens, he told Giddens that he did not know "what all of the Rule 32

meant." Giddens told him that he was claiming ineffective assistance of counsel. 
15

Henderson told Giddens that he thought his trial attorneys "had done a good job

with what they had to work with." Soon thereafter, according to Henderson, the

two agreed that they would move to dismiss the Rule 32 petition the next day in

open court. Henderson testified that if Giddens had told him that Giddens' brother

second-chaired the prosecution and that the two brothers currently shared office

space, he would have chosen not to go forward with Giddens as his counsel. He

would have felt, if he had known this, that Giddens "would already have

something against me from the get-go. It just wouldn't have felt right." 

On cross-examination, Henderson acknowledged that, at the hearing that

following day, Judge Fielding explained the consequences of withdrawing his

Rule 32 petition. Also, Henderson conceded that, in his opinion, Giddens did not

prompt him to dismiss his Rule 32 petition: "Prompt? I don't think he [Giddens]

prompted me to. I think we settled our conversation and it basically come down to

that's what I thought I wanted to do." 

3. Habeas Petition Denied

On September 24, 2001, the magistrate judge filed a Report and

Recommendation to deny Henderson's habeas petition. In this report, the

magistrate judge determined that each of the claims that were raised in the Rule 32

petition that Henderson dismissed prior to an adjudication on the merits were
13 The magistrate judge also considered and rejected the several other claims for habeas

relief raised in Henderson's § 2254 petition. Among these were fully exhausted claims that had

not been procedurally defaulted. Considering these claims on the merits, the magistrate judge

applied the standards set forth in 28 U.S.C. § 2254(d), and concluded that none of these

particular claims had merit. The magistrate judge also explained that many of the other claims

raised in Henderson's § 2254 petition were procedurally defaulted because they were never raised

in the state courts on direct appeal or in the Rule 32 petition. Of course, these several other

claims are not before us, as they were not included in the certificate of appealability.

16

procedurally defaulted because Henderson had failed to properly exhaust his state

remedies as to these claims, and now, by virtue of an independent state procedural

bar, the claims could no longer be brought in state court.13 As to the issue of

whether there was sufficient "cause" to overcome this procedural default, the

magistrate judge reached the following conclusion: 

[P]etitioner asserts that this waiver was not knowingly and intelligently

made, even if voluntary. This argument is without merit. The record

evidence is clear that petitioner knew he was giving up his right to a

Rule 32 hearing. He may not have understood all of the issues that he

was foregoing, but that is not necessary. What is important is that he

understood that he was giving up whatever rights he had and that the

result of that decision would hasten his execution. The purpose of the

"knowing and voluntary" inquiry is to determine whether the defendant

actually understands the significance and consequences of a particular

decision and whether the decision is uncoerced. Clearly, petitioner

understood the significance of what he was doing and the consequences

thereof.

Furthermore, the undersigned magistrate judge concludes that

petitioner's Rule 32 counsel, Mr. Steve Giddens, was unaware of his

brother's prior involvement in the original prosecution of Henderson and

. . . there is no evidence that he exerted any undue influence on

petitioner for that or any other reason. In short, Mr. Giddens'

relationship to a prosecutor in this case was not a factor in petitioner's
14 We note that we would not describe Rod Giddens' level of participation in the

prosecution of Henderson as constituting a mere "minor role." 

17

decision to waive his Rule 32 proceedings.

Consequently, the undersigned magistrate judge finds that petitioner has

waived those issues raised in his Rule 32 petition because he dismissed

that petition and cannot show cause and prejudice sufficient to overcome

this procedural default. 

Report and Recommendation at 50 (internal citations omitted).

On October 31, 2001, the district court adopted the recommendation of the

magistrate judge and entered final judgment denying Henderson's federal habeas

petition. In its final order, the district court indicated that it had carefully

considered the magistrate judge's report and recommendation, as well as

Henderson's objections, and found that only one claim carried any "weight." That

claims was whether "Rule 32 counsel's relationship as the brother of the

prosecutor who played a minor role14 in the trial resulted in a conflict of interest

which in turn resulted in petitioner waiving the Rule 32 proceeding in a manner

that was not knowing or voluntary." The district court explained that it was

"unpersuaded that this argument is meritorious under the facts developed at the

evidentiary hearing in this case and concurs with the Magistrate Judge's

recommendation that this petition be denied." 

4. Certificate of Appealability Granted in Part
18

Following the denial of his petition, Henderson moved in the district court

for a certificate of appealability ("COA"). On January 29, 2002, the district court

granted the COA as to Henderson's two arguments for cause: 

A certificate of appealability is GRANTED as to petitioner's claim

that the waiver of his right to proceed under Alabama Rule 32 was

not knowing, voluntary, intelligent and that petitioner was unduly

influenced by an attorney with a conflict of interest, in that petitioner

has made a substantial showing of the denial of a constitutional right. 

A certificate of appealability is DENIED as to all other claims raised

by petitioner because he has not made a substantial showing of the

denial of a constitutional right.

Henderson then moved this Court to expand the certificate and to stay the briefing

schedule pending consideration of that motion. This Court granted the motion to

stay the briefing schedule and, in a later order, denied the motion for expansion of

the certificate of appealability. 

II. STANDARD OF REVIEW UNDER AEDPA

Title 28 U.S.C. § 2254 governs the authority of the federal courts to

consider applications for writs of habeas corpus submitted by state prisoners. 

Section 2254 was amended by the Antiterrorism and Effective Death Penalty Act

of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996), which was

effective as of April 24, 1996. AEDPA applies to all petitions filed after its

effective date. Since Henderson filed this petition on April 11, 2000, AEDPA
15 In Williams, the Supreme Court addressed the meaning of these AEDPA provisions. In

a previous case, we summarized the Williams holding, stating:

The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) are

separate bases for reviewing a state court's decisions. A state court decision is

"contrary to" clearly established federal law if either (1) the state court applied a

rule that contradicts the governing law set forth by Supreme Court case law, or (2)

when faced with materially indistinguishable facts, the state court arrived at a

result different from that reached in a Supreme Court case. 

A state court conducts an "unreasonable application" of clearly established federal

19

applies to this case. 

AEDPA "places a new constraint on a federal habeas court's power to grant

a state prisoner's application for a writ of habeas corpus with respect to claims

adjudicated on the merits in state court" by establishing a deferential standard for

reviewing state court judgments in these cases. Williams v. Taylor, 529 U.S. 362,

412, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). Subsection (d) of § 2254

provides:

(d) An application for a writ of habeas corpus on behalf of a person

in custody pursuant to the judgment of a State court shall not

be granted with respect to any claim that was adjudicated on

the merits in State court proceedings unless the adjudication of

the claim—

 (1) resulted in a decision that was contrary to, or involved an 

 unreasonable application of, clearly established Federal law, as 

 determined by the Supreme Court of the United States; or

 (2) resulted in a decision that was based on an unreasonable 

 determination of the facts in light of the evidence presented in 

 the State court proceeding.

28 U.S.C. § 2254(d)(1)-(2).15 
law if it identifies the correct legal rule from Supreme Court case law but

unreasonably applies that rule to the facts of the petitioner's case. An

unreasonable application may also occur if a state court unreasonably extends, or

unreasonably declines to extend, a legal principle from the Supreme Court case

law to a new context. Notably, an "unreasonable application" is an "objectively

unreasonable" application.

Lastly, § 2254(d)(1) provides a measuring stick for federal habeas courts

reviewing state court decisions. That measuring stick is "clearly established

Federal law." 28 U.S.C. § 2254(d). Clearly established federal law is not the case

law of the lower federal courts, including this Court. Instead, in the habeas

context, clearly established federal law refers to the holdings, as opposed to the

dicta, of the Supreme Court's decisions as of the time of the relevant state court

decision.

Putnam v. Head, 268 F.3d 1223, 1241 (11th Cir. 2001) (internal citations and quotations

omitted). Also, "[i]n applying the 'contrary to' prong of § 2254(d), we have recognized that

where no Supreme Court precedent is on point, we cannot say that the state court's conclusion . . .

is contrary to clearly established Federal law as determined by the U.S. Supreme Court." Isaacs v.

Head, 300 F.3d 1232, 1252 (11th Cir. 2002) (quoting McIntyre v. Williams, 216 F.3d 1254, 1258

(11th Cir. 2000)).

Thus, section 2254(d)(1), with its "contrary to" and "unreasonable application of" prongs,

sets forth two narrow circumstances in which a federal court may grant a writ of habeas corpus to

a state prisoner. Section 2254(d)(2) sets forth one more. This third and last situation is where

the state court's conclusion is 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)(2). 

20

AEDPA also makes clear that substantial deference is to be accorded a state

court's findings of fact. Section 2254(e)(1) provides that "a determination of a

factual issue made by a State court shall be presumed to be correct. The applicant

shall have the burden of rebutting the presumption of correctness by clear and

convincing evidence." 28 U.S.C. § 2254(e)(1).

The district court's determination of whether this standard has been met is

subject to de novo review. Harrell v. Butterworth, 251 F.3d 926, 930 (11th Cir.
21

2001), cert. denied, 535 U.S. 958, 122 S.Ct. 1367, 152 L.Ed.2d 360 (2002). A

district court's findings of fact are reviewed for clear error. DeLancy v. Florida

Dept. of Corrections, 246 F.3d 1328, 1329 (11th Cir. 2001). "Whether a particular

claim is subjected to the doctrine of procedural default . . . is a mixed question of

fact and law," subject to de novo review. Judd v. Haley, 250 F.3d 1308, 1313. 

III. ISSUES PRESENTED

The district court granted a COA to review its conclusion that Henderson

had not established cause to overcome the procedural default of the claims that he

waived by dismissing his Rule 32 petition in the state court. In reaching this

conclusion, the district court rejected the following two arguments for cause: (1)

the waiver of his right to proceed under Alabama Rule 32 was not a "knowing,

voluntary and intelligent" waiver because Henderson lacked a sufficient

understanding of his legal rights and claims as set forth in the Rule 32 petition;

and (2) the waiver was involuntary as the product of undue influence by Steve

Giddens, an attorney with a conflict of interest.

IV. DISCUSSION

Each of the federal habeas claims that Henderson had initially raised in his

Rule 32 petition, but later dismissed prior to an adjudication on the merits, are

procedurally defaulted. "A state prisoner seeking federal habeas relief cannot
16 If Henderson now filed a Rule 32 petition asserting the same claims he initially raised

in the Rule 32 petition that he dismissed, the new petition would be barred by multiple

procedural rules, including the rule against successive petitions and the statute of limitations. 

See Ala.R.Crim.P. 32.2 (b) ("If a petitioner has previously filed a petition that challenges any

judgment, all subsequent petitions by that petitioner challenging any judgment arising out of that

same trial...shall be treated as successive . . .. The court shall not grant relief on a successive

petition on the same or similar grounds on behalf of the same petitioner."); Ala.R.Crim.P. 32.2(c)

("[T]he court shall not entertain any [Rule 32] petition for relief from a conviction or sentence . .

. unless the petition is filed . . . within one (1) year after the issuance of the . . . judgment of the

Court of Criminal Appeals [disposing of the direct appeal].").

17 See Snowden v. Singletary, 135 F.3d 732, 736 (11th Cir. 1998) ("[W]hen it is obvious

that the unexhausted claims would be procedurally barred in state court due to a state-law

procedural default, we can forego the needless 'judicial ping-pong' and just treat those claims

now barred by state law as no basis for federal habeas relief."). 

22

raise a federal constitutional claim in federal court unless he first properly raised

the issue in the state courts." Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001)

(citing Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594

(1977)). "The doctrine of procedural default was developed as a means of

ensuring that federal habeas petitioners first seek relief in accordance with

established state procedures." Judd, 250 F.3d at 1313. Since Henderson failed to

properly exhaust these claims in the state courts, and now is undeniably barred by

firmly established and consistently applied state procedural rules from raising

them,16 the claims are procedurally defaulted, and our review is precluded by this

adequate and independent state procedural ground.17

 

Henderson does not challenge the district court's conclusion that these

claims have been procedurally defaulted. Acknowledging his state procedural
23

default, Henderson argues that the procedural default should be excused, and that

he should not be barred from pursuing these claims for the first time in this § 2254

federal habeas proceeding. Procedural default will be excused only in two narrow

circumstances. First, a petitioner may obtain federal review of a procedurally

defaulted claim if he can show both "cause" for the default and actual "prejudice"

resulting from the default. See Murray v. Carrier, 477 U.S. 478, 485, 106 S.Ct.

2639, 2644, 91 L.Ed.2d 397 (1986); Sykes, 433 U.S. at 87, 97 S.Ct. at 2506. "To

establish 'cause' for procedural default, a petitioner must demonstrate that some

objective factor external to the defense impeded the effort to raise the claim

properly in the state court." Wright v. Hopper, 169 F.3d 695, 703 (11th Cir.

1999). To establish “prejudice,” a petitioner must show that there is at least a

reasonable probability that the result of the proceeding would have been different.

Id.; Crawford v. Head, 311 F.3d 1288, 1327-28 (11th Cir. 2002). Second, a

federal court may also grant a habeas petition on a procedurally defaulted claim,

without a showing of cause or prejudice, to correct a fundamental miscarriage of

justice. Murray, 477 U.S. at 495-96, 106 S.Ct. at 2678. A "fundamental

miscarriage of justice" occurs in an extraordinary case, where a constitutional

violation has resulted in the conviction of someone who is actually innocent. Id.

Henderson attempts to overcome the procedural default in this case by
18 While alternatively suggesting in his brief that his execution would result in a

"fundamental miscarriage of justice," Henderson has not attempted to offer any evidence to even

suggest that he might be actually innocent of the underlying offense, and therefore has made no

substantial argument under the fundamental miscarriage of justice exception to the doctrine of

procedural default. 

24

establishing "cause and prejudice."18 While constitutionally ineffective assistance

of counsel has been considered cause to excuse a procedural default that occurs at

a stage in the proceedings in which the defendant enjoys a Sixth Amendment right

to the effective assistance of counsel, there is no constitutional right to an attorney

in state post-conviction proceedings. See Coleman v. Thompson, 501 U.S. 722,

752, 111 S.Ct. 2546, 2566, 115 L.Ed.2d 640 (1991). "Consequently, a petitioner

cannot claim constitutionally ineffective assistance of counsel in such

proceedings." Id. Therefore, any ineffectiveness of Steve Giddens could not be

considered cause for the purposes of excusing the procedural default that occurred

in this case at the state collateral post-conviction level. Id.; In re Magwood, 113

F.3d 1544, 1551 (11th Cir. 1997); Johnson v. Singletary, 938 F.2d 1166, 1174-75

(11th Cir. 1991). With AEDPA, Congress codified this rule by enacting § 2254(i),

which provides that "[t]he ineffectiveness or incompetence of counsel during

Federal or State collateral post-conviction proceedings shall not be a ground for

relief in a proceeding arising under section 2254." 

Recognizing that he has no argument for cause based on any purported
25

ineffectiveness of Giddens in the Rule 32 proceedings, Henderson presented two

alternative arguments for cause, a "lack of understanding" argument and an "undue

influence" argument. See supra at [M/S 21] (Section III. "Issues Presented"). As

stated above, the district court rejected these two arguments for cause, but granted

Henderson's request for a COA allowing him to seek review from this Court. We

now address Henderson's two arguments for cause, conclude that Henderson has

not shown cause on either ground, and affirm the district court's denial of habeas

relief. 

A. Lack of Understanding

Henderson's first argument for cause is based on his alleged lack of a

sufficient understanding of the actual claims contained in the Rule 32 petition he

dismissed. Henderson argues that because of this failure, his dismissal was not a

"knowing, voluntary, and intelligent" waiver of his legal rights. Henderson argues

that under prevailing law, his waiver is ineffective unless it was "an intentional

relinquishment or abandonment of a known right or privilege," and, according to

Henderson, his was not. Thus, he argues that this court should find cause and

excuse the procedural default created by the premature dismissal of his Rule 32

claims.

Henderson's argument that he lacked a sufficient understanding of the
19 Voluntariness is the focus of Henderson's second argument for cause, discussed in the

next section, that his dismissal was the product of the undue influence of Steve Giddens.

20 See supra at [M/S 3-7] (discussing the state court's determination on this issue).

26

claims set forth in the Rule 32 petition that he dismissed is more specifically

confined to the "knowing and intelligent" prongs of the "knowing, voluntary, and

intelligent" standard that he sets forth. With respect to his "lack of understanding"

argument for cause, the argument Henderson presents is not one of lack of

"voluntariness." 19 Rather, the argument focuses specifically on whether

Henderson's alleged lack of understanding of the legal claims set forth in his Rule

32 petition rendered his decision to dismiss the petition not sufficiently "knowing

and intelligent" to be deemed legally valid. We now turn to this question, while

fully recognizing the AEDPA-mandated deference owed to the prior determination

of the Alabama Court of Criminal Appeals as to this same issue in Henderson v.

State, 733 So.2d 484 (Ala.Crim.App. 1998).20

 

Language from the Supreme Court's decision in Rees v. Peyton, 384 U.S.

312, 86 S.Ct. 1505, 16 L.Ed.2d 583 (1966), has consistently been cited as setting

forth the controlling legal standard for assessing the validity of a death row

inmate's choice to forego post-conviction review. In Lonchar v. Zant, 978 F.2d

637, 641 (11th Cir. 1992), this Circuit addressed the question of whether Lonchar

was competent to waive his right to collaterally challenge his conviction and death
27

sentence. Quoting from Rees, this Court phrased the test as follows:

Competency to forego further legal proceedings depends on whether

the person whose competency is in question "has capacity to

appreciate his position and make a rational choice with respect to

continuing or abandoning further litigation or on the other hand

whether he is suffering from a mental disease, disorder, or defect

which may substantially affect his capacity in the premises."

Lonchar, 978 F.2d at 641 (Rees, 384 U.S. at 314, 86 S.Ct. at 1506). Applying this

Rees test in Lonchar, this Circuit affirmed the district court and held that the

condemned person could forego further review of his conviction and sentence. Id.

at 642. This Court noted that the district court had "found that Lonchar was able

to understand his legal position and the options available to him" and "the

consequences of not pursuing review of his conviction." Id. It concluded that

"Lonchar could make a rational choice among his options," and according to

testimony from a psychiatrist, after "considering his options and the quality of life

in prison, [Lonchar] had decided not to oppose his conviction." Id. 

Then, in Ford v. Haley, 195 F.3d 603, 605 (11th Cir. 1999), our Circuit

considered another case where a death row inmate sought to dismiss his counsel

and forego all further collateral challenges to his conviction and sentence. The

district court found the inmate competent to forego further collateral relief. In so

concluding, "[t]he district court held that under Lonchar, Ford need not understand
28

the particulars of each legal issue framed in the petition or the likelihood of

prevailing on any or all of them, as his counsel argues." Id. at 615. Rather, Ford

needed to exhibit "a basic understanding of the habeas proceedings" and

understand "that without further proceedings he would be executed." Id. He

needed to understand "the 'bottom line' of his legal situation - that he must

continue to engage in the review process or be executed -[in order to be] able to

make a rational choice among these options." Id. Upon review, this Circuit upheld

the decision of the district court. In so doing, this Circuit stated that "[t]he district

court applied the Rees test in the precise manner instructed in Lonchar." Id. at 617. 

In Hauser ex. rel. Crawford v. Moore, 223 F.3d 1316 (11th Cir. 2000), a

death row inmate "filed a waiver of all collateral and/or post-conviction relief

proceedings." Id. at 1319. The state court appointed an attorney to represent the

inmate. Id. The inmate filed a motion to dismiss the counsel and for permission to

proceed pro se. Id. Despite the inmate's desire to proceed pro se and waive all

rights to collaterally challenge his death sentence, attorneys from the Capital

Collateral Regional Counsel (“CCRC”) and Hauser's biological mother, purporting

to act on Hauser's behalf, attempted to challenge the conviction and sentence in

both state and federal court. Id. at 1319-20. On appeal from a § 2254 petition filed

by CCRC, this Circuit concluded that the inmate was competent to dismiss the §
29

2254 petition. Id. at 1322-23.
30

Relying on the Circuit's prior precedent in Ford and Lonchar to articulate

the proper test, the panel in Hauser addressed whether the inmate "understood the

'bottom line' of his legal situation - that he must continue to engage in the review

process or be executed - and that he was able to make a rational choice among

these options." Id. at 1323 (emphasis added). Then, the court acknowledged that

the state court had previously concluded that the inmate "has the capacity to

appreciate the allegations against him, has an appreciation for the range and nature

of these proceedings and the appellate process, and has the ability to disclose facts

pertinent to those proceedings." Id. The panel then noted that these findings are

entitled to a presumption of correctness that can only be rebutted by clear and

convincing evidence that the inmate is incompetent. The court easily found such

evidence lacking and vacated the stay consistent with the inmate's expressed

wishes. Id. 

Applying the standard derived from the foregoing cases, we readily

conclude that the state court's determination, see Henderson v. State, 733 So.2d

484 (Ala.Crim.App. 1998), in this case was not "contrary to, or [did not] involve

an unreasonable application of clearly established federal law, as determined by

the Supreme Court of the United States." See 28 U.S.C. § 2254(d)(1). Nor did the

state court's determination result "in a decision that was based on an unreasonable
21 Henderson's brief on appeal makes a conclusory argument that the foregoing cases are

applicable only in situations where the petitioner's mental competence is challenged, and should

not apply in the instant situation. Henderson vaguely suggests that the Johnson v. Zerbst, 304

U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), "knowing, voluntary and intelligent"

standard is a different standard and that it should apply. Not only is Henderson's suggestion in

this regard vague and brief, it is entirely lacking in any specification of the factual basis for his

"knowing and intelligent" claim. However, it is clear from the entire litigation that the gist of

Henderson's claim is that Giddens failed to explain to him the particulars of the legal issues

framed in the Rule 32 petition to be aborted, so that he lacked a full understanding of the actual

claims. Having identified the factual basis of Henderson's claim, it is readily apparent that it is

wholly without merit. This court in Ford expressly held, in the same context of waiving further

collateral challenges, that the petitioner "need not understand the particulars of each legal issue

framed into the petition or the likelihood of prevailing on any or all of them." 195 F.3d at 619. 

Accordingly, we have no need in this case to decide whether some other case involving different

facts might make it appropriate to apply some variation of the standard derived above from Rees,

Lonchar, Ford, and Hauser. 

Because we reject Henderson's lack of understanding claim on the foregoing grounds, we

need not address whether his claim is the functional equivalent of an ineffective assistance of

counsel claim and therefore barred because Henderson has no constitutional right to effective

assistance of counsel in state collateral proceedings. 

31

determination of the facts in light of the evidence presented." See 28 U.S.C. §

2254(d)(2). The record in this case, including the extensive colloquy conducted

by the Rule 32 court prior to its granting of Henderson's motion to dismiss, see

supra at [M/S 4-7], makes clear that Henderson understood the “bottom line” of

his legal situation, that he had to continue to engage in the collateral review

process or be executed, and that he was able to make a rational choice among

these options. The colloquy also makes it clear that Henderson had a basic

understanding of the purpose of the Rule 32 proceedings which he was deciding to

abort, namely an effort to get a new trial. Thus, the district court correctly

concluded that this "lack of understanding" argument for cause is without merit.21
32

B. Undue Influence

Henderson's second argument for cause is that his decision to dismiss his

Rule 32 petition was not made voluntarily because it was the result of the undue

influence of Steve Giddens, his Rule 32 counsel. This argument is based on the

evidence presented at the evidentiary hearing in the district court including

evidence that Giddens' brother second-chaired Henderson's 1988 trial, and that

Giddens' friend Billy Haney, a local law enforcement officer in Talladega, was the

brother of the victim of the murder committed by Henderson. The district court

considered the testimony of Giddens and Henderson, and concluded that Giddens'

relationships were "not a factor" in Henderson's decision to waive his Rule 32

proceedings. Henderson argues that this Court should reject the district court's

determination that he was not unduly influenced by Giddens to dismiss his Rule

32 petition. 

There is a threshold procedural issue that precedes any consideration of the

merits of Henderson's argument that he was unduly influenced by Giddens. 

Respondents argue that this argument was not properly exhausted in the state

courts, has been procedurally defaulted, and therefore is now barred and should

not be considered by this Court. It is undisputed that Henderson did not present
33

this claim of undue influence at any point in the state court Rule 32 proceedings. 

Rather, for the first time in his § 2254 pleadings in federal habeas court,

Henderson has raised the fact that Steve Giddens was the brother of one of his

prosecutors and the long-time friend of the victim's brother and argued that

Giddens unduly influenced him to dismiss his Rule 32 petition. Consequently, the

state court never had the opportunity to consider whether the validity of

Henderson's dismissal of his Rule 32 petition was compromised by his counsel's

actions and these potentially conflicting relationships. 

A state prisoner is ordinarily not able to obtain a writ of habeas corpus from

a federal court unless he has exhausted the remedies available in the courts of the

state. A claim is procedurally defaulted for the purposes of federal habeas review

where "the petitioner failed to exhaust state remedies and the court to which the

petitioner would be required to present his claims in order to meet the exhaustion

requirement would now find the claims procedurally barred." Coleman v.

Thompson, 501 U.S. 722, 735 n.1, 111 S.Ct. 2546, 2557 n.1, 115 L.Ed.2d 640

(1991). Therefore, given the facts of this case, before we consider whether

Henderson's undue influence argument provides cause to excuse the procedural

default of his ineffective assistance claims, we must first determine whether this

argument for cause can even be considered or whether it has itself been
34

procedurally defaulted by Henderson's failure to present it to the state court in the

manner required by state procedural rules. 

In this case, the issue is not whether an actual constitutional claim being

asserted as a basis for habeas relief is procedurally defaulted. Rather, we consider

whether an argument for cause to excuse a procedural default of a constitutional

claim is procedurally defaulted in its own right. Because this would involve a

double-layered application of the exhaustion and procedural default rules, we must

first address whether these rules are even applicable in these circumstances to

potentially bar Henderson from raising the undue influence argument as cause to

excuse the procedural default of the constitutional claims asserted in the Rule 32

petition he dismissed. 

While there are very few record cases involving a double-layered

application of the doctrine of procedural default, the Supreme Court fairly recently

made clear that an ineffective assistance of counsel claim being used for cause to

excuse a procedural default of another claim is not itself excepted from the

doctrine of procedural default. In Edwards v. Carpenter, 529 U.S. 446, 451-52,

120 S.Ct. 1587, 1591, 146 L.Ed.2d 518 (2000), a habeas petitioner argued

ineffective assistance of counsel as cause for his procedural default of other

constitutional claims in his § 2254 petition. But, he had never raised this
22 Edwards was not the first Supreme Court decision to address a situation involving the

attempted use of an unexhausted claim as cause to excuse a procedural default. In Murray v.

Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986), the Supreme Court reasoned that a

prisoner must be required to present his claim of ineffective assistance of counsel to the state

courts as an independent claim before he may use it to establish cause to excuse the procedural

default of another claim. Id. at 488-89, 106 S.Ct. at 2646. But it was not until Edwards that the

Supreme Court made it clear that the failure to properly exhaust the ineffective assistance of

counsel claim actually resulted in a procedural default of the claim being asserted as cause,

completely barring that claim from being used to excuse the procedural default of the underlying

claim.

35

ineffective assistance claim in state court, and he was now procedurally barred

from raising the claim. The Supreme Court held that unless the petitioner could

establish cause and prejudice to excuse his procedural default of his ineffective

assistance claim, he was barred from using it as a basis for cause to excuse his

procedural default of the underlying claim. Id. at 451-53, 120 S.Ct. at 1593-94.22

With its decisions in Edwards v. Carpenter and Murray v. Carrier, see supra

n.22, the Supreme Court has made clear that a procedurally defaulted ineffective

assistance of counsel claim can serve as cause to excuse the procedural default of

another habeas claim only if the habeas petitioner can satisfy the "cause and

prejudice" standard with respect to the ineffective assistance claim itself. While

the present case does not involve the attempted use of ineffective assistance of

counsel as cause, we believe the rule set forth in Edwards applies to Henderson's

argument for cause based on undue influence. 

We believe this is an obvious and natural extension of Edwards and Murray,
23 Moreover, any other rule would not only permit the "cause claim" to escape the

exhaustion and procedural default rules, but would also permit escape from the deference to state

court rulings mandated by AEDPA, as there would be no state court ruling to which deference

could be afforded. This escape would be permitted, while at the same time, other claims for

cause presented to the state courts, like Henderson's lack of understanding argument, would be

subjected to AEDPA's deferential standard of review. It would be completely anomalous for us

to allow a claim for cause, never raised in the state courts, to occupy a much more favorable

position in federal habeas court than a claim for cause that has actually been presented to the

state courts. 

24 As with Henderson's lack of understanding claim, Henderson's undue influence claim

seems to be merely a variation of a common ineffective assistance of counsel claim, this time

grounded in counsel's alleged conflict of interest. In light of our resolution of this case on other

grounds, we need not address whether Henderson's claim is the functional equivalent of an

ineffective assistance of counsel claim and therefore barred because Henderson has no right to

36

as all of the same reasons for applying the exhaustion and procedural default rules

in Edwards and Murray apply equally here.23 No less than when the argument for

cause is a procedurally defaulted ineffective assistance of counsel claim, allowing

a procedurally defaulted undue influence argument to be presented as cause in this

case would allow a federal district court to take steps toward upsetting a state

court conviction without giving the state courts an opportunity to address those

claims in the first instance. Edwards, 529 U.S. at 451, 120 S.Ct. at 1591; Murray,

477 U.S. at 489, 106 S.Ct. at 2646. The very principles of comity and federalism

that underlie the exhaustion doctrine are equally undermined regardless of whether

the procedurally defaulted claim is asserted as cause for a procedural default or is

denominated as an independent ground for habeas relief. Murray, 477 U.S. at 489,

106 S.Ct. at 2646.24 
effective assistance of counsel in state collateral proceedings.

25 In order to establish proper exhaustion of state court remedies, a petitioner must have

"fairly presented" the substance of his federal claims to the state courts by raising both the factual

and legal premises of the claims for relief that are now being asserted in the federal habeas

proceeding. The state court must have been given a fair opportunity to apply controlling legal

principles to the facts bearing upon the claim now being raised. See Duncan v. Henry, 513 U.S.

364, 365-66, 115 S.Ct. 887, 888, 130 L.Ed.2d 865 (1995); Anderson v. Harless, 459 U.S. 4, 6-8,

103 S.Ct. 276, 277-78, 74 L.Ed.2d 3 (1982); Picard v. Connor, 404 U.S. 270, 275-78, 92 S.Ct.

509, 512-13, 30 L.Ed.2d 438 (1971). Thus, the "lack of understanding" claim raised by

37

Thus, we hold that Henderson's undue influence claim is subject to the

exhaustion requirement and doctrine of procedural default. Concluding that both

of these rules apply, we will consider whether the rules were satisfied in this case.

It is undisputed that Henderson has never argued, at any level of his Rule 32

proceedings in the Alabama state courts, that his Rule 32 dismissal was

involuntary as the product of the undue influence of Rule 32 counsel. Rather, this

argument for cause was raised for the first time in the district court § 2254

proceedings below. The exhaustion requirement, grounded in principles of comity

and federalism, requires a habeas petitioner to first present his claims to the state

courts before seeking relief in the federal courts under 28 U.S.C. § 2254. Section

2254(b)(1)(A) provides that "[a]n application for a writ of habeas corpus on behalf

of a person in custody pursuant to the judgment of a State court shall not be

granted unless it appears that—the applicant has exhausted the remedies available

in the courts of the State."25 
Henderson in the state court will not serve to satisfy the exhaustion requirement as to his "undue

influence" claim, even if that is arguably a variation of the same "knowing, voluntary, and

intelligent" argument. The lack of understanding claim did not involve any of the current

allegations of undue influence and conflict of interest of Henderson's Rule 32 counsel. The

undue influence claim relies upon facts and legal arguments never presented to the state court. 

That the lack of understanding claim was presented to the state court under the same general

legal umbrella but with entirely different factual underpinnings does not constitute fair

presentation of the undue influence claim. Both the legal theory and the facts on which the

federal claim rests must be substantially the same for it to be the substantial equivalent of the

properly exhausted claim. The undue influence claim clearly does not meet this standard. Thus,

any suggestion that Henderson has properly exhausted the undue influence claim by exhausting

his lack of understanding claim in the state court is without merit.

38

In this case, Henderson prosecuted an appeal of his dismissal of his Rule 32

petition. In that appeal, with the assistance of current counsel, he sought to have

his Rule 32 dismissal vacated, thus reinstating his Rule 32 petition. As grounds

for the relief he sought, Henderson argued that he lacked a sufficient

understanding of his claims and legal rights to have made a legally valid

"knowing, voluntary, and intelligent" waiver of rights. Instead of seeking relief

only on this ground, Henderson could have also pressed his alternative argument

that his dismissal was involuntary and should be set aside because it was the

product of the undue influence of Steve Giddens. Additionally, Henderson likely

could have sought post-judgment relief in the Rule 32 trial court, such as by filing

a motion for new trial brought pursuant to Ala.R.Crim.P. 24.1, and stating as

grounds that Giddens' alleged actions deprived him of a "fair and impartial [Rule

32] trial." See Ala.R.Crim.P. 24.1(c)(2) (setting forth the grounds by which a
26 This is opposite to our federal practice, where petitions for writs of habeas corpus are

governed by the rules applicable in civil cases.

39

motion for new trial can be granted). See also Ala.R.Crim.P. 32.4 (stating that

Rule 32 proceedings are "governed by the Rules of Criminal Procedure,"26 and

explaining that post-trial motions under Ala.R.Crim.P 24, including motions for

new trial, can be sought from a Rule 32 judgment). A motion for new trial under

Rule 24.1 and an appeal from the Rule 32 dismissal to the Alabama Court of

Criminal Appeals clearly provided Henderson with a well-established procedure

under state law by which he could have raised the issue of the alleged undue

influence of Steve Giddens in this case. Thus, because Henderson failed to give

the state courts one full opportunity to resolve Henderson's claim by invoking one

complete round of Alabama's well established appellate review process, we

conclude that he has failed to satisfy the exhaustion requirement as to the undue

influence claim. See O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728,

1732, 144 L.Ed.2d 1 (1999). 

A claim is procedurally defaulted for the purposes of federal habeas review

where "the petitioner failed to exhaust state remedies and the court to which the

petitioner would be required to present his claims in order to meet the exhaustion

requirement would now find the claims procedurally barred." Coleman v.
27 Henderson has presented no argument to the contrary. In fact, Henderson filed a

second Rule 32 petition in the Talladega County Circuit Court after his unsuccessful appeals in

the original Rule 32 proceedings, but prior to filing this federal habeas petition. This second

Rule 32 petition was dismissed pursuant to Ala.R.Crim.P 32.2(b) and (c). Apparently,

Henderson did not appeal that disposition. This court is aware of no reason why any attempt by

Henderson to raise a new argument of undue influence in the state courts in a belated effort to set

aside his original Rule 32 dismissal would not face this same procedural fate.

40

Thompson, 501 U.S. 722, 735 n.1, 111 S.Ct. 2546, 2557 n.1, 115 L.Ed.2d 640

(1991). If Henderson were to now raise this undue influence issue in an effort to

set aside his Rule 32 dismissal in the Alabama courts, it would be rejected on

firmly established and consistently applied procedural grounds. If brought as a

motion for new trial under Rule 24.1, it would be barred as untimely, as motions

for new trial must be brought within 30 days of judgment. Ala.R.Crim.P. 24.1(b). 

Alternatively, if brought as part of a new Rule 32 petition asserting the Rule 32

claims anew, it would be either barred by the statute of limitations, Ala.R.Crim.P.

32.2(c) (one year after judgment on direct appeal), or rejected as a successive

petition under Ala.R.Crim.P. 32.2(b).27

 

Even though we conclude that Henderson has procedurally defaulted his

undue influence argument for cause, our inquiry does not end there. "To hold, as

we do, than [Henderson's undue influence] claim asserted as cause for the

procedural default of another claim can itself be procedurally defaulted is not to

say that that procedural default may not itself be excused if the prisoner can satisfy
41

the cause-and-prejudice standard with respect to that claim." Edwards, 529 U.S. at

453, 120 S.Ct. at 1592. However, the undisputed facts of this case provide

Henderson with no such argument for cause to excuse his failure to properly

exhaust his undue influence claim in state court. 

Steve Giddens' representation of Henderson ceased on the date of

Henderson's dismissal of his Rule 32 petition, and no further communications

occurred between these two individuals. Thus, any alleged undue influence

ceased long before Henderson's Rule 32 proceeding made its way completely

through the Alabama state courts. The Equal Justice Initiative timely filed a notice

of appeal from the Rule 32 dismissal, and Henderson's current counsel prosecuted

the merits of the appeal in the Alabama Court of Criminal Appeals. Nevertheless,

no undue influence argument was presented. No claim has been made that

Henderson or his counsel were ever denied any documents containing information

regarding Henderson's capital trial and its participants and witnesses, including the

trial transcripts. Not only is a plausible argument for cause not discernable by this

Court upon its independent review of this record, Henderson has not advanced any

argument of his own that his failure to raise the undue influence issue in the state

court following the Rule 32 dismissal should be excused by this Court, and has

presented no facts to this Court that could reasonably serve as a basis for excusing
42

such failure.
43

Because Henderson had an opportunity to raise this undue influence issue in

either a post-judgment motion in the Rule 32 court or in his Rule 32 appeal to the

Alabama Court of Criminal Appeals, or both, and because he has presented

nothing to suggest that he was impeded in anyway from raising this argument, we

agree with Respondents that this failure has resulted in an additional layer of

procedural default for which no cause has been shown to excuse. As a result,

Henderson's undue influence argument is itself procedurally defaulted without

excuse, and therefore cannot be considered as cause to potentially excuse his

procedural default of the claims he dismissed in his Rule 32 petition. 

Even if it was not procedurally barred, we would still reject Henderson's

undue influence claim on the merits. The magistrate judge held an evidentiary

hearing in this case to determine whether Henderson's decision to dismiss his Rule

32 petition was involuntary as the product of the undue influence of Steve

Giddens. After hearing substantial testimony from both Giddens and Henderson,

and considering the arguments of counsel, the magistrate judge made factual

findings that Giddens was unaware, during his representation of Henderson, that

his brother had participated in Henderson's prosecution, and that Giddens in no

way exerted any undue influence on Henderson for that or any other reason. Put

another way, the magistrate judge expressly found that Giddens' relationship to his
28 In rejecting Henderson's undue influence claim, we also reject Henderson's argument

that undue influence should be presumed. Assuming arguendo, but not deciding, that such a

presumption theory might operate under some circumstances, and that the contours of such a

theory would be as articulated by Henderson in his brief, we still would conclude that Henderson

has failed to satisfy the test he proposes. Relying upon Alabama undue influence law applied in 

will contests as set forth in the case of Burns v. Marshall, 767 So.2d 347, 352 (Ala. 2000),

Henderson argues that undue influence is presumed when: (1) there is a confidential

relationship; (2) there is a dominant and controlling influence by the fiduciary; and (3) there is

"undue activity" in procuring the action at issue. In the instant case, the magistrate judge found

that Giddens exerted no undue influence on Henderson's decision because of the alleged conflicts

or for any other reason. Thus, Henderson cannot satisfy the third prong of his own suggested

test.

44

brother was not a factor in Henderson's decision to dismiss his Rule 32 petition. 

This finding of fact has ample support in the record. Henderson's own testimony

at the evidentiary hearing supports the magistrate judge's finding. Asked by his

own counsel on direct examination whether he was prompted by Giddens to

dismiss his Rule 32 petition, Henderson responded as follows: "Prompt? I don't

think he prompted me. I think we settled our conversation and it basically came

down to that's what I thought I wanted to do." From this testimony and from the

testimony of Giddens, the district court found that Henderson was not unduly

influenced into dismissing his Rule 32 petition. We conclude that this finding is

not clearly erroneous. Thus, Henderson's "undue influence" claim also fails on the

merits.28

V. CONCLUSION

For the foregoing reasons, the judgment of the district court is AFFIRMED.