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-Appel lant,

versus MICHAEL W . HALEY, Commissioner of the Alabama D epartment of Corrections, ATTORNEY GENERAL FOR THE STATE OF ALABAMA, Respondents-Appell ees.

________________________ Appeal from the United States District Court for th e Nort hern D istri ct of A labama

_________________________ (December

16, 2003) Before TJOFL

AT, ANDER

SON and HULL , Circuit Judges. ANDERSON, Circuit Judge: Jerry Paul H

enderson ("Hender

son") was convicted

of murder in the

state courts of Alabama and received a death sentence. The district court denied2

Henderson's petiti

on for writ of habe

as corpus pursuant to 28

U.S.C. § 2254 on each of the several asserted constitutional claims for relief. In denying Henderson's petition, the distric

t court concluded tha

t many of H

enderson's claim

s, including those alleging ineff

ective assistance of trial counsel, h ad been procedural

ly defaulted by H

enderson's voluntary

dismissal of his R

ule 32 state post-convi

ction 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 alter native argumen

ts of "cause" to exc

use his
proce dural defau lt: (1 ) Hend erson 's wai ver of his ri ght t o proc eed un der Al abama Rule 32 was not knowi

ng, voluntary,

and intelligent, because Henderson lac ked a sufficient understa

nding of his rights and the actual legal claim

s being dismissed; and (2) Henderson' s waiver was invol untary because

it was the product of

the undue influence of

a Rule 32 counsel sad dled by conflicting in terests.

I. BACKGROUND On May 19, 1988,

Henderson was fou

nd guilty of capita

l murder and sentenced to death in

Talladega County

Circuit Court in T

alladega, Alaba

ma. His conviction and sentenc e were subsequentl y affirm ed by the Alaba

ma Court of1 This published opinio n affirming Hen

derson's convic

tion and sentence

provides a full, concise recitation of the historical facts concerning the underly ing 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 s

entence, while n

ew counsel initiat

ed these state pos

t-conviction proc

eedings.

3 Judge Fielding a

lso presided over

Henderson's 19 88 capital trial. 3 Criminal Appeals. Henderson v. Stat e , 583 So.2d 276 (Ala.Crim.App. 1990). 1 The Supreme Court of Alabama affirmed, Ex parte Hender son , 583 So.2d 305 (Ala. 1991), and the Supreme Court of the United States denied Henderson's petition for writ of ce rtiorari, Hende rson v. Ala bama , 503 U.S. 908, 112 S.Ct. 1268, 117 L.Ed.2d 496 (1992). A. State Post-Convict ion Proceedings On Octob er 13, 1 993, tw o Marylan d attor neys filed a petition in the state courts of Alabam

a on Henderson's be

half, seeking post- conviction relief pu rsuant to Alabama Ru

le of Criminal

Procedure 32. 2 Shortl y thereaf ter, the two att orneys sought and received a

withdrawal as co

unsel due to financia

l inability to cont

inue on Henderson's beha

lf. The court the

n sought to replace H

enderson's counsel,

first seeking the assistance of Lisa Borden, an Alabama attorney who had appeared as local counsel along w

ith the two Mary

land attorneys.After Borden w as unable to find substitute counsel

for Henderson, J

udge Fielding 3 granted her mo tion to withdraw on July

30, 1996, and appointe

d Steve Giddens ("G

iddens") of4 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 f iling this Rule 32 which is a post—collateral action really

—that you ar

e saying th

at something happ

ened in the trial b

ack in 1988 that wou

ld justify you getting a new

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

4 Talladega to repr

esent Henderson in t

he Rule 32 proceeding

. On April 22, 1997,

approximately

nine months afte

r Giddens' appointm

ent, an evidentiary hearing was held in t he Rule 32 proceeding . At that hearing, on behalf of Henders on, Giddens move d to dismiss the Rul

e 32 petition. Gidde

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

ial counsel and did not w ant to continue the cla

ims of ineffective assis

tance or pursue any

other challenges to h

is conviction and sentence. Giddens told the court that he believed that Henderson was fully aware of the situation and ha

d plenty of tim

e to consider the dec

ision. Judge Fielding engaged Henderson i

n an extensive colloquy

regarding his decisi

on to dismiss the Rule 32 petition and its

possible consequence s. 4 The court explaine

d that Henderson’ s Rule 32 petition set f orth allegations relating to his 1988 tri

al that would, if tr

ue, result in a new

trial. 5 The court explained to Henderson that the dismissal would significantly impair Henderson's chances of any successful appeal f rom the Rule 32 p

roceeding as well as any6 See id. ("Do you un derstand that by

dismissing this peti

tion for Rule 32 that

you could hurt any ap

peal that yo

u may have f

urther on in the sta

te courts and also

in the federal c

ourts 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 y ou 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 cha ir carried out? Do you understand that.").

8 See id. (reporting that to each of these questions by the court, Hender son responded, "Yes, sir. I understand that.").

9 See id. ("And you are making this decision of y our own free will, knowingly and voluntarily. Is that correct.?" . . .. "Yes, sir. I t is." . . .. "And no one has threatened you, coerced you, made promises or tricked y ou into making this decision that you have told us about today?" . . .. "No, sir they haven' t."). 5 chances of success

in any subsequent a

ction in federal co

urt. 6 The court explained that the dis

missal could spee

d up the date of his exe

cution and would bring Henderson a st

ep closer to having his

sentence of death carried out. 7 To each of the court' s explanations, He nderson acknowledge

d that he understood. 8 He also agreed tha

t he was making

his decision out of his ow n free will, knowingly, and voluntarily, and that no one had threat ened, coerced,

made promises, or t

ricked him into di smissing the petit ion. 9 After this extensi

ve colloquy, the co

urt found that Hende

rson's motion to di smiss his Rule 32 pe tition was being made

knowingly, inte

lligently, and voluntarily. As a result, Judge Fielding granted He

nderson's motion

to dismiss from

the bench, and on Ma

y 29, 1997 entered a formal order with findings of fact and conclusions of law consistent with his fi

ndings.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 fr om the order dismissing Hende

rson's Rule 32 petiti

on. In October of

1997, Henderson's

current

coun sel to ok ov er and submi tted a brief on beh alf of

Hende rson to th e Alab ama Court of Crimi

nal Appeals. On appeal, Hende

rson argued that he " did not voluntarily , knowingly, a

nd intelligently w

aive his post-convicti

on remedies unde

r Rule 32," and aske

d the court to "reverse t

he order dismis sing 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 al

legations contained th

erein. Consequent

ly, he claimed that he

could not under those ci

rcumstances effectively waive his postconviction reme

dies. On August 14, 1998, t

he Alabama C ourt of Crimina l Appeals affirm

ed, holding that the circuit court was correct in finding that Henderson possessed requis ite ment al compet ence to dismiss his pet ition and tha t he did so volu ntaril y, knowingly, and intell igently. Henderson v. Stat e , 733 So.2d 484 (Ala .Crim.App

. 1998). In reaching

its conclusion, the A

labama appella

te court considered

the7

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

ent during the colloquy

and demonstrate

d "that he moved f

or 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 illus

trated that Hende

rson "understood the le

gal 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 He nderson's petition for writ of

certiorari, but later reconsider ed and quashed the wr

it on April 23, 1999. On Octob er 27, 1999, Hende rson filed a second R

ule 32 petition in the Talladega County

Circuit Court whic

h was dismissed pursuant to Rule 32.2( b) (successive petitio

ns) and (c) (statut

e of limitations

) of the Alabam

a Rules of Criminal Procedure. B. Federal Post-Conv iction 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 D

istrict Court for t

he Northern Distr

ict of Alabam

a, pursuant to 28 U.S.C. § 2254, setting forth numerous constitutional claims for relief. Respondents, Micha

el Haley as C ommissioner of the Alabam

a Departmen

t of Corrections, and W

illiam H. Pr

yor, Jr., t he Attorney G

eneral of the Stat

e of10 Any reference mad e in this op inion to "G iddens" refe rs to Steve Giddens, H enderson's

Rule 32 appointed c

ounsel. Rod Giddens , Steve's brothe r, will be refer

red to hereinaf

ter in this opinion only by either his full name, as "Steve' s brother," or simply as "Rod." 8 Alabama, a

rgued that all of He

nderson's claim

s that could have been

raised in the Rule 32 proceeding, including his claims of ineffective assistance of counsel, had been procedurally

defaulted. Som

e of these claim

s were raised in t

he Rule 32 petition dismissed by Henderson, while other claims could have been but were never raised in the state courts at all. Alabama ar

gued that Henderson f

ailed to properly exhaus

t these claims,

and because the cla

ims could no longer

be raised in the state courts, t

hey had been proc edurally defa ulted. Several of

Henderson's § 2254 claims, how

ever, were ra

ised either at tria

l or on direct appea

l, 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 procedur

ally defaulted

. As to the claim

s included in the Rule 3 2 petition, Hender son argued that he lacked a sufficie

nt understanding of the se claims at th e time of his m

otion to dismiss, and therefore, hi s dismissal was not kno wing, voluntary, and int elligent. From that, H

enderson argued, th

e district court shoul

d find sufficient "c ause and prejudice" to exc

use his procedural default. Also, for the first time , Henderson pointed out that Steve

Giddens, his Rule 32

counsel, was the br

other of one of the prosecutors who par

ticipated in his 1988 tr

ial. 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 wa s told by his at

torney, Stev

e Giddens, prior t

o dismissing his Rule 32 petition in sta

te 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 fac

t with petitioner; a

nd if he did not discu

ss 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 hi s right to p ursue coll ateral reli ef, such tha t the state court's finding that peti

tioner 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, arg uing 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 H

enderson's prosecut

ion, examined s everal witnesses, and delivered parts of the state's closing a rgument in both the

guilt-innocence and penalty phases of the trial. Henderson also noted for the first time in his federal petition, that Stev e Giddens was a lifelon g friend of the murder victi m's brother, a local police offic er named Billy Haney. Because of alleged conf licts arising from these relationships,

Henderson argued t

hat the dismissal

of his Rule 32 petition was the product of t

he undue influence of

Steve Giddens, his

Rule 32 counsel, and therefore was no

t a knowing, voluntar

y, and intellige

nt waiver. On Ja

nuary 18, 2001, the magist

rate judge enter

ed an order direct

ing an evidentiary

hearing to be held. 11Because we resolve this case in favor of Respondents on other grounds, we dec line 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 attor

ney, Steve G

iddens, acting under

a conflict of inter

est when he represented Peti

tioner at the heari

ng wherein Petition

er 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 p

rejudice Petiti

oner, i.e., di

d Petitioner's att

orney impr

operly influence Petition er to dismiss his Rule 32 proceeding? At the h earing, two witnesses testifie

d: Steve Giddens and

Jerry Hender

son. Giddens testif

ied that he was admitted t

o the bar in 1986 and open ed a solo practice i

n Talladega. In 1 989, he began to work for

Legal Services Corporation of Ala bama. Gidde

ns returned to solo private practice in 1991, and continue d to practice in that

capacity until h

e was elected Tal

ladega County's

District Attorne

y in 1998. Talla

dega 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 attorney

s principally involved in the practice of criminal defense law. Giddens testified th

at his brother, Rod Giddens, was a f ormer assista

nt district attorney in Talladega County, and was one of the prosecuting attorneys at12 Giddens explained that he had never known his brother to second-chair in a capital

murder case while working as a prosecutor. Giddens acknowledged, howe ver, 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. Bec ause he reviewed only small parts of the record in his preparation for the Rule 32 proc eeding, 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 tim

e during Steve Gidde

ns' representatio

n of Henderson on his R

ule 32 petition, he shared office space with Rod. Nevertheless, Giddens testified that until he received the

federal district court's notice to ap pear at the June 25,

2001 evidentiary hearing in this case, he was unaware that his brother had participated in Henderson's 1988 pr

osecution. 12 Steve Giddens also testified that he is friends with Billy Haney, a local police officer and bro ther of the victim. Their frien dship dates back t o the 1970s. Giddens testified th

at he expressed his condolences to Billy Haney upon the de

ath of his brother. Gi

ddens admitted th

at he never told He

nderson about his relationship with the victim's brother. Giddens testified th

at at some point a

fter Judge Fielding a

ppointed him to represent Hender

son in the Rule 32 proce

eding, he reviewe

d the court file12

containing the Rule 32 p etition. He deter mined that m

ost of the claim

s set forth in the petition were i

neffective assist

ance of trial and a

ppellate counsel. G

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

pretrial moti

ons." Giddens testi

fied that his quick re

view of parts of the recor

d convinced him th

at most of the claims in the Rule 32 petition were without m

erit. Giddens tes

tified that he based this opinion at least in p art on the fact that he personally "knew the attorneys and . . . just didn't feel like they were ineffecti

ve" in light of what he

had ascertained f

rom the me

dia 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 Henders on "had gotten what he deserved." Yet, when Judge Fielding appointed him to represent Henderson, Giddens testified that he did not pause, or f

eel any concer

n about the appointm

ent. Giddens stated that he first met Henderson at the county jail the day before the April 22, 1997 hearing on the Rule 32 pe tition. During the a

pproximately

nine months that had tr

anspired since his ap

pointment, no pr

ior communi

cation of any sort had taken place

with Henderson via

mail, telepho

ne, personal conta

ct, or13

otherwise. Gidde

ns introduced him

self, explained to H

enderson the nature of the proceeding, went over the nature of the claims with Henderson, and told him that most of the claims alleged ine ffective assistance o f trial and appellate counsel. Giddens inform

ed Henderson what

evidence could be pr

esented the next day

at the evidentiary hea

ring and what ty

pe of potential reli

ef was available . Henderson "responded that he w

as not sure what this

was all about, tha

t he did not have any problem with his attorneys because he was guilty, and that they did as we ll as they could do defending a guilty man." Giddens testified that he was surprised that Henderson was so c andid and that after Henderson stated th

at he had no complaints about his trial attorney s, the "conversati

on took a turn in a diff

erent direction." Hend

erson and Giddens agr

eed that they w

ould dismiss the Ru

le 32 petition at the hear

ing the following day. Giddens testifie d that he was prepa

red to go forward if He

nderson so wished, a

nd that if it was nec essary for him to adequately pre

pare his argum

ents, he was cer

tain 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 reca

ll reviewing any

parts of the transc

ript of the penalty phase and did not "have an opinion" as to wheth er trial counsel ha

d adequately presented miti

gating circumst

ances to the jury. Giddens concede d that ineffective14

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 schem

e, the concept of m

itigating circum

stances, and the f

act that the application of the death penalty requires more than the mere guilt as to the murder itself. Giddens te stified that his role during the Rule 32 proc eedings was to protect Henderson' s rights, but stated t hat he was not requir

ed to dissuade Henderson from dismissing the petition. Giddens did concede that "legal issues should be ferreted o

ut by the attorne

y." If Hende

rson had wanted him

to go forward, Giddens said that he would have. Giddens testified that he never prompted Henderson to d o 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 Tallad

ega County Jail i

n 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 al

l of the Rule 32 meant." Giddens told him that he was claiming ineffective assistance of couns el.15

Henderson told Gidde

ns that he thought his tri

al attorneys "ha

d done a good job with what they

had to work with."Soon thereafter, according to Hende

rson, the two agreed that the

y would move

to dismiss the Rul

e 32 petition the next da

y 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 ch osen not to go forwar d with Giddens as his counsel. He would have felt, i

f he had known this, t

hat Giddens "would a

lready 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 explain

ed the consequences o f withdrawing his Rule 32 petition. A

lso, Henderson conceded that, in his opini on, Giddens did not prompt him t

o dismiss his Rule 32 petition: "Prom pt? I don't think he [G

iddens] prompted me

to. I think we sett

led 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 ma

gistrate judge fil

ed a Report and Recomme

ndation to deny He

nderson's habeas pe

tition. In this repor

t, the magistrate j udge determine d that each of the cl

aims that wer

e raised in the Rule

32 petition that Henderson dismissed prior to an adjudication on the merits were13 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 pro cedurally defau lted. Cons idering the se claims o n the merit s, the magis trate judge applied the standa

rds set forth in 28 U

.S.C. § 2254(d), and

concluded that no

ne of these particular clai

ms had merit. The ma

gistrate judge

also explained that

many of the o

ther claims raised in Henderson's § 2254 petition were procedurally de faulted because they were never ra ised in the state courts on direct appeal or in the Rule 32 petition. Of course, these several other cla ims are n ot b efor e us , as the y were not inc lud ed i n th e cer tif ica te o f app eal abi lit y. 16 procedurally de

faulted because H

enderson had failed to properly exha ust his state remedies as to these claims, and now, by virtue of an independent state procedural bar, the claim

s could no longer be brou ght in state court. 13 As to the issue of whether there w

as sufficient "cau

se" to overcome

this procedural def

ault, the magistrate j udge reached the following conclusion: [P]etitioner

asserts that this

waiver was not

knowingly and inte

lligently made, even if voluntary. This argument is without merit. The re cord evidence is clear that petitioner knew he was giving up his rig ht to a Rule 32 hearing. He may not have understood all of the issues that he was foregoing, but that i s not necessary. What is im

portant is that he understood

that he was giving up w hatever rights he ha

d and that th e result of that decision would hasten his execution. The

purpose of the "knowing and voluntary" inq

uiry is to determine wh

ether the defendan

t actually understands the significance and consequences of a particular decision and whether the dec

ision is uncoerced. Clearly, pe titi o ner understood

the significance of

what he was doing and the consequences thereof. Furthermore, the und ersig ned magistrate judge concludes that petiti one r's Rule 32 counsel, Mr. Steve Giddens, was unaware of h

is br other's prior involvement in the original prosecution of Henders on an d

. . . there is no evidence that he e xe rted any undue inf luence on pe titionerfor that or any other reason. In s

hort, Mr. Gidd

ens ' relationship

to a prosecutor in this case w as not a factor in petitioner's14 We note that we would not describe Rod Giddens' level of participation in the

prosecution of Henderso n as constituting a mere "m inor role." 17 decision to waive his

Rule 32 proceedings. C onsequ ently, the undersigned m agistrate judge f

inds that petitioner ha

s waived those issues raised i

n his Rule 32 petition because he dismissed that petition and cannot show cause and prejudice sufficient to overc om e this procedural def ault. Report and Recommendation at 50 (internal citations omitted). On October 31, 200 1, the district cour t adopted the recom

mendation of the magistrate judge and entered final judgment denying Henderson's federal habeas petition. In its fina

l order, the distri

ct court indicated t

hat it had carefull

y considered the magistrate judge's report and recommendation, as w ell as Henderson's objections, and found that only one claim carried any "weight." T hat claims was w

hether "Rule 32 couns el's relationship a s the brother of the prosecutor who play

ed a minor role 14 in the trial resulte d in a conflict of inte

rest 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 thi s argument is m eritorious 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 Part18

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 a

s to Henderson's tw

o arguments for

cause: A certificate o f appealability is GRANTED

as to petitioner's c

laim that the waiver of his right to proceed under Alabama Rule 32 was not knowing, voluntary

, intelligent and tha

t petitioner was undu

ly influenced by an attorney with a conflict of interest, in that petitioner has made a substantial s howing of the denia l of a constitutio nal right. A certificate of appealability is DENIED as to all other claim s raised by petitioner because he has not ma de a substantial show

ing of the denial of a constituti

onal right. Henderson then m

oved this Court to expan

d the certificate

and to stay the br

iefing schedule pending consid

eration of that m

otion. This Court gr

anted the motion t

o stay the briefi

ng schedule and, in a

later order, den

ied the motion for

expansion of the certificate of appe alability.

II. STANDARD OF REVI EW UNDER AEDPA Title 28 U.S.C . § 2254 governs the aut hority of the fe

deral courts to consider applicat ions for writs of habe as corpus submitted by sta te prisoners. Section 2254 was amended by the Antiterrorism and Effective D eath Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996), which was effective as of A

pril 24, 1996. AE

DPA applies to all

petitions filed afte

r its effective date. Since Henderson filed this petition on April 11, 2000, AEDPA15 In Williams , the S uprem e Cour t addr essed the me aning of the se AED PA pro visi ons. In

a previous case, we summarized the Williams holding, s tating: The "contrary to" and "unrea sonable 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 c

ourt 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 cas e. AEDPA "place s a new constraint o n a federal habea

s court's power to g

rant
a stat e pris oner' s appl icati on for a writ of hab eas co rpus with r espec t to cl aims adjudicated on the m

erits in state court

" by establishing a

deferential stand

ard for reviewing state court judgments in these cases. Williams v. Taylor , 529 U.S. 362, 412, 120 S.Ct. 1495,

1523, 146 L.Ed.2 d 389 (2000). Subsect ion (d) of § 2254 provides: (d) An application for a writ of habe as corpus on behalf of

a person in custody pursuant

to the judgment

of a State court sh

all not be granted with re spect to any cla im that was adj udicated on the merits in S

tate court procee

dings unless the adjudi

cation of the cl aim— (1) resulted in a decision that was co ntrary to, or involved an unreasonable applic ation of, clearly established Federa

l law, as determined by

the Supreme C ourt of the United S tates; or (2) resulted in a decision that was based on an unreasonable determinat

ion of the facts in lig

ht of the evidence pr

esented in the State court

proceeding. 28 U.S.C. § 2254(d)(1)-(2). 15law 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 unre asonably extends, or unreasonably

declines to extend,

a legal princip

le from the Suprem

e Court case law to a new conte

xt. Notably, a

n "unreasonabl

e application" i

s an "objectivel

y unreasonable" application. Lastly, § 2254(d)(1) pro

vides a measuring

stick for feder

al habeas courts reviewing state court decisions. That measuring stick is "clearly established Federal law."

28 U.S.C. § 2254(d).

Clearly est

ablished federa

l 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, a s 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. Su preme Court." Isaacs v. Head , 300 F.3d 1 232, 1252 ( 11th Cir. 2002) (quo ting McInty re v. Williams , 216 F.3d 1254, 1258 (11th Cir. 2000)). Thus, section 2254(

d)(1), with its "c

ontrary to"

and "unreasona

ble application of

" prongs, sets forth two nar

row circumstanc

es in which a fede

ral court may

grant a writ of h

abeas 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 m

akes clear that subs

tantial deferenc e is to be accorded a state court's findings of fact. Section 2254(e)(1) provides that "a determination of a factual issue m

ade by a State court shall be presum ed to be correct. The applicant shall have the burden of rebutting the pres umption of corre

ctness by clear

and convincing evidence." 28 U.S.C. § 2254(e)(1). The district court

's determinat

ion of whether this s

tandard has been m

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

2001), cert. denied , 535 U.S. 958, 122 S.Ct. 136 7, 152 L.Ed.2d 360 (200 2). A district court's fin dings of fact are reviewe d for clear error. DeLancy v. Florida Dept. of Correc

tions , 246 F.3d 1328, 1329 (11th Cir. 2001). "Whether a particular claim is subje

cted to the doctrine of procedural defa ult . . . is a m

ixed question of fact and law," s

ubject to de novo review. Judd v. Haley , 250 F.3d 1308, 131 3.

III. ISSUES PRESENTED The district court

granted a COA to r

eview its conclusion

that Henderson had not established ca

use to overcome

the procedural def

ault of the claim

s that he waived by dism

issing his Rule 32 petiti

on in the state court.In reaching this conclusion, the distr

ict court rejec

ted the following tw

o arguments for

cause: (1) the waiver of his r

ight to proceed under Alabama Rule 32 was not a "knowing, voluntary and inte

lligent" waiver be

cause Henderson la

cked a sufficient understanding of his le

gal rights and claim

s as set forth in the R

ule 32 petition; and (2) the waiver

was involuntary

as the product of undue

influence by St

eve Giddens, an attorn

ey with a confl

ict of interest. IV. DISCUSSION Each of the feder

al habeas claim

s that Henderson had

initially raise

d in his Rule 32 petition, but later dismissed prior to an adjudication on the merits, are procedurally de

faulted. "A stat

e prisoner seeking f

ederal habeas re

lief cannot16 If Henderson now filed a Rule 32 petition asserting the same claims he initially raised in the Rule 32 petitio

n that he dismissed,

the new petition wo

uld 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-la w procedural def

ault, we can for

ego the needle

ss 'judicial ping

-pong' and jus

t treat those clai

ms now barred by state law as no basis for federal habe as 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, 8 7, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977)). "The doc

trine of procedura

l default was deve

loped as a mean

s of ensuring that feder

al habeas petitioner

s first seek relie f in accordance w ith established state procedures." Judd , 250 F.3d at 1313. S ince Henderson fa iled to properly exhaus

t these claims in the state courts, and now is undeniably

barred by firmly es tablished and consiste

ntly applied state

procedural rules f

rom raising them, 16 the claims ar

e procedurally

defaulted, and our

review is preclud

ed by this adequate and indepen

dent state procedur

al ground. 17 Henderson does not ch

allenge the district

court's conclusion th

at these claims have been procedurally defaulted. Acknowledging his state procedural23

default, Henderson argues that the procedural default should be excused, and that he should not be barre

d from pursuing th

ese claims for

the first time

in this § 2254 federal habeas pr

oceeding. Proced

ural default will b e excused only in t wo narrow circumstance s. First, a petit ioner may o

btain federal rev

iew of a procedur

ally defaulted claim if he can show both "cause" for the default and actual "prejudice" resulting from the defaul t. See Murray v. Carrier , 477 U.S. 478, 485, 106 S.Ct. 2639, 2644, 91 L.E

d.2d 397 (1986); Sykes , 433 U.S. at 87, 97 S.Ct. at 250 6. "To estab lish 'caus e' for proce dural defau lt, a p etiti oner mu st demo nstra te tha t some objective factor

external to the def

ense impeded the

effort to raise th

e claim properly in the state court." Wright v. Hopper , 169 F.3d 695, 703 (11th Cir. 1999). To establish

“prejudice ,” a petitioner m ust show that there i s at least a reasonable probabil

ity that the res

ult of the proceeding

would have been diff

erent. Id. ; Crawford v. Head , 311 F.3d 1288, 132 7-28 (11th Cir. 200 2). Second, a feder al cou rt may al so gra nt a ha beas p etiti on on a proc edura lly de fault ed cla im, without a showing of cause or prejudice , to correct a fu ndamental m

iscarriage of justice. Murray , 477 U.S. at 495-96, 106 S.Ct. at 2678. A "fundamental miscarriage of justice" occurs in an extraordinary case, wher e a constitutional violation has res ulted in the convi ction of someone who is ac tually innocent. Id. Henderson attem

pts to overcome t

he procedural defa

ult in this case by18 While alternatively suggesting in his brief that his execution would result in a

"fundamental miscarriage of justice," Henderson has not attempted to offer a ny evidence to even suggest that he might be actually innocent of the under lying offense, and therefore has made no substantial argument under the fundamental miscarriage of justice exception to the doctrine of procedural default. 24 establishing "cau se 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 de fendant enjoy s a Sixth Amend

ment right to the effective assistance of counsel, there is no constitutional right to an attorney in state post-con viction proceedin gs. See Coleman v. T hompson , 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, a ny ineffective

ness of Steve Gidde

ns could not be considered cause for the purposes of excusing the procedural default that occurred in this case at the st ate collateral post- conviction level

. Id. ; In re Magwood , 113 F.3d 1544, 1551 (11th C

ir. 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 ineffec tiveness or incom

petence of counsel d

uring Federal or State

collateral post-c onviction proceedings s hall not be a ground for relief in a proceeding arising under section 2254." Recognizing that he has no argument for cause based on any purported25

ineffectiveness of Gi ddens in the Rule 3 2 proceedings, Hende rson presented two alternative argum

ents for cause, a

"lack of understandi

ng" argument and

an "undue influence" argument. See supra at [M/S 21] (Section III. "Iss ues Presented"). As stated above, the district court rejected these two arguments for cause, but granted Henderson 's request for a COA allo wing him to s eek review fr om this Cour t. 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 Understa nding Henderson's first argument for cause is based on his alleged lack of a sufficient understa

nding of the actual cl

aims contained i

n the Rule 32 petition he dismissed. He

nderson argues that be

cause of this failur

e, his dismissa

l 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 o

r abandonment of

a known right or privi

lege," and, according to Henderson, his wa

s not. Thus, he ar

gues that this court sho

uld find cause and excuse the procedur

al default create

d by the prem

ature dismissa

l of his Rule 32 claims. Henderson's argum

ent that he lacked a

sufficient understa

nding of the19 Voluntariness is the focus of Henderson's second argument for cause, discussed in the

next section, that his

dismissal was the pr

oduct of the undue

influence of Stev

e Giddens.

20 See supra

at [M/S 3-7] (discussing the state court's determination on this issue). 26 claims set for

th in the Rule 32 petiti

on that he dismisse

d is more specif

ically confined to the "know

ing and intelligent" pr

ongs of the "knowing, voluntary, and intelligent" standar

d that he sets forth. With respect to h is "lack of understa

nding" argument for cause, the argum ent Henderson pres ents is not one of lack of "voluntariness." 19 Rather, the argument focuses specifically on whether Henderson's alleg

ed lack of understan

ding of the legal cla

ims set forth in his Rule 32 petition rendered his decision to dism iss the petition not suff

iciently "knowi

ng and intelligent" to be deemed legally valid. We now t

urn to this question, w

hile fully recognizi

ng the AEDPA-m

andated deferenc e owed to the prior d etermination of the Alabam

a Court of Crim

inal Appeals as to th

is same issue in Henderson v. State , 733 So.2d 484 (Ala.Crim.App. 1998). 20 Language from

the Supreme C ourt's decision in Rees v. Peyto n , 384 U.S. 312, 86 S.Ct. 1505,

16 L.Ed.2d 583 (19 66), has consistentl y been cited as s etting forth the controlling

legal standard for

assessing the validity

of a death row inmate's choice to forego post-convi ction 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 c

ollaterally ch

allenge his conviction

and death27

sente nce. Qu otin g from Rees , this Court phrased the test as follows: Competency to forego further legal proceedings depends on whether the person whose com

petency is in ques

tion "has capacity

to appreciate his posit

ion and make a r

ational 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 hi s capacity in the premises." Lonchar , 978 F.2d at 641 ( Rees , 384 U.S. at 314 , 86 S.Ct. at 1506 ). Applying thi s Rees test in Lonchar , this Circuit aff irmed the distr

ict court and held tha

t the condemned person coul d forego further revie w of his conviction and sentence. Id. at 642. This Court n

oted that the distric

t court had "found that

Lonchar was able to understand his legal

position and the options a vailable to him"and "the consequences of not pursuing review of his conviction." Id. It concluded that "Lonchar could m

ake a rational choice among his options, " and according to testimony from a psychiatrist, af ter "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 (1 1th Cir. 1999), our Circuit considered another case where a death row inmate sought to dismiss his counsel and forego all furt

her collateral ch

allenges to his convict

ion and sentence. T

he district court found t

he inmate com

petent to forego fur

ther collateral r

elief. In so concluding, "[t]he district court held that under Lonchar , Ford need not under stand28

the particulars of

each legal issue fr

amed in the peti

tion or the likelihood of prevailing on any or all of them, as his counsel argues." Id. at 615. Rather, Ford needed to exhibit "a ba

sic understanding of th

e habeas proceedin

gs" and understand "that without further proceedings he would be executed." Id. He needed to understand " the 'bottom line ' of his legal situat ion - that he must continue to engage in th

e review process

or be executed -[i

n order to be] abl

e to make a rational choice among these options." Id. Upon review, thi s 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 instruc ted in Lonchar ." Id. at 617. In Hauser ex. rel. Crawford v. Moore , 223 F.3d 1316 (11t h 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 at

torney to repre sent the inmate. Id. The inmate f iled a motion to di smiss the counsel and for permis sion to proceed pro se . Id. Despite the inm ate's desire to pr

oceed pro se and waive all rights to collaterally challenge his death sentence, attorneys from the Capital Collateral Regiona

l Counsel (“CC

RC”) and Hauser

's biological mo

ther, purporting to act on Hauser's

behalf, attem

pted to challenge the

conviction and sentence in both state and feder al court. Id. at 1319-20. On appeal from a § 2254 petition filed by CCRC, this Circuit concluded that the inmate was competent to dism iss the §29

2254 petition. Id. at 1322-23.30

Relying on the Cir

cuit's prior prece

dent in Fordand Lonchar to articulate the proper test, th

e panel in Hauser

addressed whether

the inmate "unde

rstood the

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

ted - and that he wa

s able to make a

rational choice am

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

eviously conclude

d 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 pr

ocess, and has the a

bility to disclose facts pertinent to those proceedings." Id. The panel then noted that these findings are entitled to a presum

ption of correctnes s that can only be rebutted by cle

ar 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 stan

dard derived from

the foregoing cases , we readily conclude that the s tate court's determinatio n, see Henderson v. Stat e , 733 So.2d 484 (Ala.Crim.App. 1998), in th is case was not "con

trary to, or [did not] involve an unreasonable appl

ication of clearly

established federa

l law, as determ

ined by the Supreme Court of the United States." See 28 U.S.C. § 2254( d)(1). Nor did the state court's dete

rmination resul

t "in a decision that w

as based on an unreas onable21 Henderson's brief on appeal makes a conclusory argument that the foregoing cases are applicable only

in situations where

the petitioner' s mental competen ce is challenge

d, and should not apply in the instant situation. Henderson vaguely sug gests that the Johnson v. Zerbst , 304 U.S. 458, 464, 58 S.Ct.

1019, 1023, 82 L .Ed. 1461 (1938), " knowing, volunta

ry and intel

ligent" standard is a diff

erent standard a

nd that it should appl

y. Not only

is Henderson's s

uggestion in this regard vag

ue and brief, it is

entirely la

cking in any

specification of

the factual basi

s for his "knowing and intelligent" claim. However, it is clear from the entire litigation that the g ist of Henderson's c

laim 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 id

entified the fac

tual basis of Hend

erson's claim, i

t is readily a

pparent 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 eac h 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 w hether some other case involving different facts might make

it appropriate to a

pply some var

iation of the stand

ard derived abo

ve 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 eff ective 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 prio r to its granting o f Henderson's motion to d ismiss, see supra at [M/S 4-7], makes clear t hat Henderson under

stood the “bottom

line” of his legal situation, that he had to continue to engage in the collateral review process or be execu

ted, and that he wa

s able to make a

rational choice am

ong these options. The c

olloquy also m

akes it clear that Henderson had a basi c understanding of the pu

rpose of the Rule 32 pr

oceedings which he w

as deciding to abort, namely an effort to get a new t rial. Thus, the district court correctly concluded that this "la

ck of understanding" a

rgument for ca

use is without me

rit. 2132

B. Undue Influence Henderson's secon

d argument for

cause is that his dec

ision to dismiss his Rule 32 petition was n

ot made voluntar

ily because it w

as the result of the u

ndue influence of Steve

Giddens, his Rule 32

counsel. This arg

ument is based on t

he evidence presente

d at the evidentiary

hearing in the distri

ct court including evidence that Giddens' brother second-chaired Henderson's 1988 trial, and that Giddens' friend B illy Haney , a local law enf

orcement off

icer in Talladega

, was the brother of the victim of the murder comm itted by Henderson. The district court considered the testi

mony of Gid

dens and Henderson,

and concluded that G

iddens' relationships were

"not a factor" in H

enderson's decision to waive his Rule 32 proceedings. Henderson argues that this Court should reject the district court's determination t

hat he was not unduly

influenced by G

iddens to dismiss hi s Rule 32 petition. There is a threshold procedural issue t hat precedes any

consideration of the merits of Henderson's argu ment that he was unduly influ enced by Giddens. Respondents argue tha

t this argument w

as not properly e

xhausted in the state courts, has been pr

ocedurally def

aulted, and theref

ore is now barred a

nd should not be considered by

this Court. It is undi sputed that Henders on did not present33

this claim of undue infl uence at any point in th e state court Rule 32 p roceedings. Rather, for the f

irst time in his § 2254 pleadings in feder al habeas court, Henderson has rais ed the fact that St eve Giddens was the

brother of one of his prosecutors and the long-time friend of the victim's brother and argued that Giddens unduly inf

luenced him to dis

miss his Rule 32 pe

tition. Consequently

, the state court never ha

d the opportunity to consider whether t he validity of Henderson's dismissal of his Rule 32 petition was compromised by his counsel's actions and these p otentially conflicti ng relationships

. A state prisoner is

ordinarily not a

ble to obtain a writ o f habeas corpus fr om a federal court un

less he has exhausted the remedies a vailable in the court

s of the state. A claim is procedurally defaulted for the purposes of federal habeas review where "the petitio

ner failed to exhaus

t state remedi

es and the court to w

hich the petitioner would be r

equired to present hi s claims in orde r to meet the e

xhaustion 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 ineff

ective assistance claims, we must first dete rmine whethe

r this argument for cause can even be considered or whether it has itself been34

procedurally de

faulted by Hen

derson's failure t

o present it to the sta

te court in the manner required by state proced ural rules. In this case, the is sue is not whether a n actual constitutiona

l 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-layere

d application of the e

xhaustion and procedur

al default rules,

we must first address whe

ther these rules ar

e even applicable in

these circums

tances to potentially bar Henderson from raising the undue infl

uence argumen

t as cause to excuse the procedur

al default of the co

nstitutional claim

s asserted in the Rul

e 32 petition he dismisse d. While there are very few record cases involving a double-layered application of the doc

trine of procedura

l default, the Supr

eme Court fai

rly recently made clear t

hat an ineffective

assistance of counse

l claim being use

d for cause to excuse a procedura

l default of another

claim is not itse

lf excepted from

the doctrine of procedur

al 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 claim

s in his § 2254 petition. B ut, he had never ra

ised this22 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 S upreme Court rea

soned that a prisoner must be r

equired to prese

nt his claim of inef

fective assistan

ce of counsel to th

e state courts as an independent claim before he may use it to establish cause to excuse the proc edural default of another claim. Id. at 488-89, 106 S.Ct. a t 2646. But it was no

t until Edwards that the Supreme Court made it clear that the failure to properly exhaust the ineffective assistanc e of counsel claim actually resulted in a procedural default of the cla im being asserted as cause, completely barring that claim from being used to excuse the proce dural default of the underlying claim. 35 ineffective assistance claim in state court, and he was now procedurally barred from raising th

e claim. Th

e Supreme Cou

rt held that unless the

petitioner could establish cause and p

rejudice to excus e his procedural def ault of his ineffec

tive assistance claim

, he was barred f

rom using it as a b asis for cause to ex cuse his procedural default o f the underlying claim. Id. at 451-53, 120 S.Ct . at 1593-94. 22 With its decisions i

n Edwards v. Carpenter

and Murray v. Carrier , see supra n.22, t he Supreme Co

urt has made cl

ear that a procedu

rally defaulte

d ineffective assistance of counse

l claim can se

rve as cause to exc

use the procedural d

efault of another habeas cla

im only if th

e habeas petitioner

can satisfy the

"cause and prejudice" standa

rd with respect to t

he ineffective as sistance claim itself. While the present case doe s not involve the attem pted use of ineffec

tive assistance of counsel as cause, w

e believe the rule s et forth in Edwards applies to Henderson's argument for cause based o n undue influence. We believe this is an obvious and natural extension of Edwards and Murray ,23 Moreover, any other rule would not only pe rmit the "cause claim" to escape the exhaustion and proc

edural default r

ules, but would also

permit escape f

rom the deferen

ce 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 arg ument, would be subjected to AEDPA's deferential standard of review. It would be c ompletely anomalous for us to allow a claim fo

r cause, never

raised in the state

courts, to occupy

a much more favor

able 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 under

standing claim, H

enderson's und

ue influence cla

im seems to be merely

a variation of a c

ommon ineffective

assistance of co

unsel claim, this time grounded in counsel's alleged conflict of interest. In lig ht of our resolution of this case on other grounds, we need not address whether Henderson's claim is the functional equivalent of a n ineffective as sistance of couns el claim and there

fore barred be

cause Henderso

n 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 th e argument for cause is a procedur

ally defaulted

ineffective assis

tance of counsel cla

im, allowing a procedurally

defaulted undue infl

uence argumen

t to be presented as cause in this case would allow a

federal district court to take steps tow ard upsetting a state court conviction wit

hout giving the state cou

rts an opportunity

to address those claims in the first insta nce. Edwards , 529 U.S. at 451 , 120 S.Ct. at 159 1; Murray , 477 U.S. at 489, 106 S.Ct. at 2646. The very prin ciples of comit

y and federali sm that underlie the exhaustion doctrine are equally undermined regardless of whether the procedurally

defaulted claim

is asserted as caus e for a procedura l default or is denominated as an indep endent ground for h abeas relief. Murray , 477 U.S. at 489 , 106 S.Ct. at 2646. 24effective assis tance of counse

l in state collater

al proceeding

s.

25 In order to establish proper exhaustion of state court remedies, a petitioner must have "fairly presented" the substance of his fede ral 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 f ederal 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. Harl ess , 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, 275-7 8, 92 S.Ct. 509, 512-13, 30 L.Ed.2d 438 (1971). Thus, the "lack of understanding" claim raise d by 37 Thus, we hold that Henderson's undue in fluence claim

is subject to the exhaustion requirem

ent and doctrine of pr

ocedural default. Concluding that both of these rules apply, we will consider whether the rules were satisfied in this case. It is undisputed that H

enderson has never a

rgued, at any l

evel of his Rule 32 proceedings in the Alabama state courts, that his Rule 32 dismissal was involuntary as the

product of the undue inf luence of Rule 32 cou

nsel. Rather, th

is argument for cause was raised f or the first tim

e in the district cour

t § 2254 proceedings belo w. The exhaustion requi rement, groun

ded in principles of comity and federalism

, requires a habeas petitioner to fir st present his claim

s to the state courts before seek

ing relief in the fe

deral courts under 2 8 U.S.C. § 2254.Section 2254(b)(1)(A) pr

ovides that "[a]n application for a w rit of habeas corpus

on behalf of a person in custody

pursuant to the judgm

ent of a State cour

t shall not be granted unless it appe

ars that—the applic ant has exhausted the remedies ava ilable in the courts of the State." 25Henderson in the state court will not serve to satisfy the exhaustion requirement as to his "undue

influence" claim, even if that is arguably a va riation 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 prese nted to the state court. That the lack of understanding claim was presented to the state court under the same ge neral legal umbrella

but with entirely

different fac

tual underpinning

s 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 e

xhausted claim. The

undue influence

claim clearly

does not meet this sta

ndard. Thus, any suggestion that Henderson has properly exhausted the undue influence claim by exhausting his lack of unders

tanding claim in th

e state court is wi

thout merit. 38 In this case, Hen

derson prosecuted an

appeal of his dism

issal of his Rule 32 petition. In that ap

peal, with the assistance of curren t counsel, he sought to have his Rule 32 dismiss al vacated, thus r einstating his Rule 32 p etition. As grounds for the relief he

sought, Henderson a

rgued that he lacked

a sufficient understanding of his cl

aims and legal r

ights 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 alte

rnative argume

nt that his dismissal

was involuntary

and should be set aside

because it was the product of the undue inf

luence of Steve G

iddens. Additionally

, Henderson likely could have sought post-j udgment 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, a nd stating as grounds that Giddens'

alleged actions depr

ived him of a "f

air and impart

ial [Rule 32] trial." See

Ala.R.Crim

.P. 24.1(c)(2) (setting forth the grounds by which a26 This is opposite to our federal practice, where petitions for writs of habeas corpus are

governed by

the rules applica

ble in civil cases. 39 motion for new trial can be g ranted). See also Ala.R.Crim.P. 32.4 (stating that Rule 32 proceeding s are "governed by the Rul es of Criminal Procedure," 26 and explaining that post-tr

ial motions under

Ala.R.Crim

.P 24, including m

otions for new trial, can be sought from a Rule 32 judgment). A m otion for new trial under Rule 24.1 and an appe

al from the Rul

e 32 dismissal to t

he Alabama C ourt of Criminal Appeals clearly provided Henderson with a well-established procedure under state law by

which he could have r

aised the issue of the

alleged undue influence of Steve

Giddens in this case.

Thus, because H

enderson failed to gi

ve the state courts one full opportunity to resolve Henderson

's claim by

invoking one complete round of Alabama's well es tablished appell ate review process, we conclude that he has f

ailed to satisfy

the exhaustion requir

ement as to the u

ndue influence claim. See O'Sullivan v. Boerckel , 526 U.S. 838, 845, 119 S.Ct. 1728, 1732, 144 L.Ed.2d 1 (19 99). A claim is procedurally defaulted for the purposes of federal habeas review where "the petitio

ner failed to exhaus

t state remedi

es and the court to w

hich the petitioner would be r

equired to present hi s claims in orde r to meet the e

xhaustion 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 peti

tion in the Tallade

ga County Ci

rcuit Court after

his unsuccessful a

ppeals in the original Rule 32 proceedings, but prior to filing this federal habeas petition. This second Rul e 32 pet iti on w as d ism iss ed p urs uan t to Ala .R. Cri m.P 32. 2(b ) and (c). App aren tly, 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 e ffort 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 Hende

rson were to now r

aise this undue influe

nce issue in an effo

rt to set aside his Rule 32 di smissal in the A labama courts,

it would be rejec

ted on firmly es tablished and consiste

ntly applied proc edural grounds. If brought as a motion for new

trial under Rule 24. 1, it would be barr ed as untimely

, as motions for new trial must be broug ht within 30 days of judg ment. Ala.R.Crim.P. 24.1(b). Alternatively

, if brought as part

of a new Rule 32 pet

ition asserting the Ru

le 32 claims anew, it would be either barred by the statute of limitations, A la.R.Crim.P. 32.2(c) (one y

ear after judgm

ent on direct appeal

), or rejecte

d as a successive petition under Ala.R.Crim.P. 32.2(b). 27 Even though we concl

ude that Henderson ha

s procedurally defaulted his undue influence argument for cause, our inquiry does not end there. "To hold, as we do, than [Hen

derson's undue influe

nce] claim

asserted as cause

for the procedural defaul

t of another claim

can itself be proce

durally default

ed is not to say that that pro cedural default m ay not itself be excused if the prisoner can satisfy41

the cause-and-pre

judice standard w

ith respect to that

claim." Edwards , 529 U.S. at 453, 120 S.Ct. at 1592. However, the undisputed facts o f this case provide Henderson with no suc

h argument for

cause to excuse his f

ailure to properly exhaust his undu e influence claim in state c ourt. Steve Giddens' re

presentation of He

nderson ceased on the

date of Henderson's dism

issal of his Rule 32 pet

ition, and no further

communica

tions occurred between these two individuals. Thus, any alleged undue influence ceased long before

Henderson's Rule 32 proceeding ma de its way com

pletely 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 t

he appeal in the Ala

bama Court of C

riminal Appea

ls. Nevertheles s, no undue influence argument was presented. No claim has been made that Henderson or his coun

sel were ever de

nied any docum

ents containing inform

ation regarding Hender

son's capital trial

and its participants and witnesses, inc luding the trial transcripts.Not only is a pla usible argument

for cause not disce

rnable by this Court upon its independe nt review of this re

cord, Henderson ha

s not advanced any argument of his own that his failure to raise the undue inf

luence issue in the sta

te court following the Rule 32 dismissal should be excused by this Court, and has presented no facts t

o this Court that could r

easonably serve

as a basis for excus

ing42

such failure.43

Because Henders on had an opportunity to raise this undue inf

luence issue in either a post-judg

ment motion in the Rule 32 court or in his Rule 32 appeal t

o the Alabama Court of Criminal Appeals, or both, and because he has presented nothing to sugg est that he was impeded in a nyway from raising this argument, we agree with Respond

ents that this failur

e has resulted in an a

dditional layer of procedural defaul

t for which no cause

has been shown to exc

use. As a result, Henderson's undue in

fluence argum

ent is itself proced

urally default

ed without excuse, and therefore cannot be consi dered as cause to pot

entially excuse

his procedural default o f the claims he dismissed in h is Rule 32 petitio n. Even if it was not procedurally barred, we would still reject Henderson's undue influence claim on the merits. The magistrate j udge held an evidentiary hearing in this case to determine w hether Henderson' s decision to dismi ss his Rule 32 petition was involunt

ary as the produ

ct of the undue influe

nce of Steve Giddens. After

hearing substantial t

estimony fr

om both Giddens a

nd 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 parti

cipated in Henders on's prosecution, a nd that Giddens in no way exerted a

ny undue influence

on Henderson for tha

t or any other r

eason. Put another way,

the magistrate

judge expressly

found that Giddens' r

elationship to his28 In rejecting Henderson's undue influence cla im, 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 c ontours of such a theory would be as articulated by H enderson 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. Marshal l , 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 dominan

t and controlling

influence by

the fiduciary

; and (3) there is "undue activity" in procuring the action at issue. I n the instant case, the magistrate judge found that Giddens exerte

d no undue influenc

e on Henderson' s decision becau se of the allege

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

44 brother was not a facto r in Henderson's decis ion to dismiss his Ru le 32 petition. This finding of fac

t has ample suppor

t in the record. H

enderson's own test

imony at the evidentiary

hearing supports the m

agistrate judge' s finding. Asked by his own counsel on direct

examination w

hether he was prom

pted by Giddens to dismiss his Rule 32 petition, Henderson responded as follows: "Prompt? I don't thin k he pr ompted me. I th ink we settl ed ou r conv ersat ion an d it b asica lly came down to that's what

I thought I wanted to do." From this testimony a nd from the testimony of

Giddens, the distri

ct court found that H

enderson was not undul

y influenced into dism

issing his Rule 32 petiti

on. We conclude that this finding is not clearly er

roneous. Thus, H

enderson's "undue inf

luence" claim

also fails on the merits. 28 V. CONCLUSION For the foregoing reas ons, the judgment of the di strict court is AFFIRMED.