1

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

PHILLIP WAYNE TOMLIN *

(AIS # 235217), *

*

Petitioner, *

*

v. * CIVIL ACTION NO.10-00120-CG-B

*

TONY PATTERSON, *

*

Respondent. *

REPORT AND RECOMMENDATION

This action was referred for report and recommendation 

pursuant to 28 U.S.C. § 636(b)(1)(B), Local Rule 72.2(c)(4), and 

Rule 8 of the Rules Governing Section 2254 Cases. Petitioner, 

Phillip Wayne Tomlin, a state prisoner currently in the custody 

of Respondent, has petitioned this Court for federal habeas 

corpus relief pursuant to 28 U.S.C. § 2254, challenging the 

validity of his 1999 conviction in the Circuit Court of Mobile 

County, Alabama, for capital murder, for which he was sentenced 

to life in prison without the possibility of parole.1 (Doc. 1 at 

 1 As discussed herein, Petitioner was tried, convicted, and 

sentenced to death four times for the intentional murders of 

Richard Brune and Cheryl Moore, an offense made capital under 

Alabama Code § 13-11-2(a)(10) (1975), because two people were 

(Continued)

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2). Following a careful review of the petition and record, the 

undersigned finds that an evidentiary hearing is not warranted 

on the issues.2 See 28 U.S.C. § 2254(e)(2).

 

intentionally killed pursuant to one act or a series of acts. 

On appeal of Petitioner’s fourth trial, the Alabama Supreme 

Court remanded the case to the trial court with instructions to 

resentence Petitioner in accordance with the jury’s 

recommendation of life imprisonment without the possibility of 

parole. See Ex parte Tomlin, 909 So. 2d 283, 287 (Ala. 2003). 

2 Because Petitioner filed his federal habeas petition after 

April 24, 1996, this case is governed by the Antiterrorism and 

Effective Death Penalty Act (AEDPA). “AEDPA expressly limits 

the extent to which hearings are permissible, not merely the 

extent to which they are required.” Kelley v. Secretary for 

Dep’t of Corrs., 377 F. 3d 1317, 1337 (11th Cir. 2004). The 

legal standard for determining when an evidentiary hearing in a 

habeas corpus case is allowed is articulated in 28 U.S.C. 

§ 2254(e)(2), which provides:

If the applicant has failed to develop the 

factual basis of a claim in State court 

proceedings, the court shall not hold an 

evidentiary hearing on the claim unless the 

applicant shows thatB

(A) the claim relies on

(i) a new rule of constitutional law, 

made retroactive to cases on collateral 

review by the Supreme Court, that was 

previously unavailable; or

(ii) a factual predicate that could not 

have been previously discovered through 

the exercise of due diligence; and

(B) the facts underlying the claim would be 

sufficient to establish by clear and 

convincing evidence that but for 

(Continued)

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FINDINGS OF FACT AND PROCEEDINGS

The Alabama Court of Criminal Appeals found the facts of 

this case to be as follows:3

The State’s evidence has been detailed in 

the previous opinions of this Court. See Tomlin 

v. State, 443 So. 2d 47, 516 So. 2d 790, and 591 

So. 2d 550. The evidence presented at Tomlin’s 

fourth trial did not vary in any great respect 

from the evidence presented at the other trials. 

The State’s evidence tended to show that on 

January 2, 1977, Charles Castro and his wife 

reported to police that a body was lying next to 

a vehicle on the Theodore/Dawes exit ramp from I10 in Mobile County. Police arrived at the scene 

and discovered 15-year-old Cheryl Moore lying 

beside the car and 19-year-old Richard Brune 

slumped behind the steering wheel. Both victims 

had been shot and had died as a result of 

 

constitutional error, no reasonable 

factfinder would have found the applicant 

guilty of the underlying offense.

Petitioner has failed to establish that an evidentiary 

hearing is warranted in this case.

3 AEDPA directs that a presumption of correctness be 

afforded factual findings of state courts, “which may be 

rebutted only by clear and convincing evidence.” Bui v. Haley, 

321 F. 3d 1304, 1312 (11th Cir. 2003) (citing 28 U.S.C. 

§ 2254(e)(1)). “This presumption of correctness applies equally 

to factual determinations made by state trial and appellate 

courts.” Id. (citing Sumner v. Mata, 449 U.S. 539, 547 (1981)). 

These facts are recited in the opinion of the Alabama Court of 

Criminal Appeals on Petitioner’s direct appeal of his fourth 

trial and conviction. See Tomlin v. State, 909 So. 2d 213, 224-

25 (Ala. Crim. App. 2002), reversed in part, Ex parte Tomlin, 

909 So. 2d 283, 287 (Ala. 2002). 

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multiple gunshot wounds. The wounds were made 

with a .38 caliber pistol and a 16-gauge shotgun. 

Brune had been shot four times with a .38 caliber 

weapon and Moore had been shot once with a .38 

caliber weapon. All of the .38 caliber bullet 

wounds were inflicted by the same weapon. The 

toxicologist also testified that wadding 

recovered from Moore’s body during the autopsy 

matched the 16-gauge shotgun shells recovered 

from John Daniels’s apartment.

The evidence further showed that in 1975, 

approximately two years before the murders, 

Tomlin’s brother, David Tomlin, had been killed 

in a shooting involving one of the victims, Ricky 

Brune. Evidence established that David Tomlin 

and Ricky Brune were employed at a furniture 

store as guards. Brune told police after the 

incident that a shotgun was knocked over and 

accidentally discharged fatally wounding David 

Tomlin. Tomlin’s father told police that he did 

not believe that the shooting was an accident and 

that his family wanted Brune to be charged with 

murder. Tomlin’s father wrote a letter to police 

that stated that if the police did not act within 

a certain period he would take “further action.”

At the time of the murders Tomlin was living 

in Houston, Texas, with his wife and two 

children. Tomlin’s wife was employed at a local 

bar called the Wet and Wild Club. About 10 

months before the murders, a Texas Ranger was in 

the club and met with Tomlin. The ranger 

testified that Tomlin told him that he had to go 

to Mobile to take care of some family business; 

specifically, that he was going to kill the 

person who had murdered his younger brother. 

Another Texas Ranger overheard Tomlin’s 

statements.

Tomlin’s in-laws, Randy and Danny Shanks, 

also testified that Tomlin arrived in Mobile 

unexpectedly on the day before the murders. 

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Randy Shanks testified that Tomlin told them that 

he had flown from Houston, Texas, to New Orleans, 

Louisiana, and that he had driven from New 

Orleans to Mobile. Shanks said that Tomlin told 

them that he had come to avenge his brother’s 

death-he said he had come to kill Ricky Brune. 

The Shankses testified that Tomlin was 

accompanied by John Daniels and that he asked the 

Shankses to get them a motel room. The Shankses 

took the two to a local motel where Randy Shanks 

filled out a registration card. Randy testified 

that when they got to the room, Tomlin and 

Daniels showed them a pistol and a sawed-off 

shotgun. He further testified that Tomlin 

referred to Daniels as a “hit man.”

Other witnesses also testified that Tomlin 

was Seen in Mobile on the day before and the day 

of the murders.

During the investigation, a Ford vehicle was 

found abandoned at the New Orleans International 

Airport. The vehicle was registered to Brenda 

Watson, Tomlin’s sister. Police discovered a 

parking ticket dated January 2, 1977, at 8:08 

p.m. inside the vehicle. An airport employee 

testified that a flight departed from New Orleans 

at approximately 8:40 p.m. on January 2, 1977, 

that was bound for Houston. This employee also 

testified that although Tomlin’s name was not on 

the flight manifest, at that time a last-minute 

passenger could purchase a ticket for cash and 

his/her name would not appear on the manifest.

Mobile County Sheriff Deputy Warren Baker 

testified that he went to Houston during the 

investigation. He said that he arrested John 

Daniels and searched his apartment. Baker 

testified that he found a large bag with an 

airline sticker on the bag-the flight number 

matched the flight number of the flight that had 

left New Orleans on January 2. Baker also 

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recovered a sawed-off shotgun in the trunk of 

Daniels’s car.

Tomlin testified at his first trial. This 

testimony was read into evidence at Tomlin’s 

fourth trial. Tomlin testified that he was in 

Houston at the time of the murders and that the 

Shankses had lied about his whereabouts because 

they did not like him.

Tomlin v. State, 909 So. 2d 213, 224-25 (Ala. Crim. App. 2002), 

reversed in part, Ex parte Tomlin, 909 So. 2d 283, 287 (Ala. 

2002).

In 1978, Petitioner was tried and convicted of capital 

murder in the Circuit Court of Mobile County, Alabama, and 

sentenced to death. See Tomlin, 909 So. 2d at 223; Ex parte 

Tomlin, 540 So. 2d 668, 669 (Ala. 1988). On September 23, 1988, 

the Alabama Supreme Court reversed Petitioner’s conviction on 

the basis of improper closing argument by the prosecutor and 

ordered a new trial. Tomlin, 540 So. 2d 668. 

In 1990, Petitioner was tried a second time, convicted of 

capital murder, and again sentenced to death. See Tomlin v. 

State, 591 So. 2d 550, 552 (Ala. Crim. App. 1991). On appeal, 

the Alabama Court of Criminal Appeals reversed Petitioner’s 

conviction on several grounds, including the improper admission 

of evidence that Petitioner’s co-defendant was awaiting 

execution on death row. Id. at 553-56.

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In 1993, Petitioner was tried and convicted a third time

and sentenced to death. See Tomlin v. State, 695 So. 2d 157, 

161 (Ala. Crim. App. 1996). The Alabama Court of Criminal 

Appeals reversed the conviction because two jurors failed to 

disclose information during voir dire. Id. at 174-76. 

In 1999, Petitioner was tried and convicted a fourth time. 

See Tomlin, 909 So. 2d at 224. During Petitioner’s third trial, 

the jury had recommended by a vote of 12-0 that he be punished 

by life imprisonment without the possibility of parole. Id. at 

225. The parties in the fourth trial stipulated to the previous 

jury’s recommendation of life in prison without parole; however, 

following a sentencing hearing, the trial court overrode that 

recommendation and ordered that Petitioner be sentenced to 

death. Id.

In 2000, Petitioner filed a direct appeal of his fourth 

conviction and sentence to the Alabama Court of Criminal 

Appeals. (Doc. 10 att. 8 at 167). The Alabama Court of 

Criminal Appeals affirmed his conviction and sentence on May 31, 

2002. See Tomlin v. State, 909 So. 2d at 280. On November 22, 

2002, the Alabama Court of Criminal Appeals overruled 

Petitioner’s application for rehearing. (Id. at 281). 

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On December 20, 2002, Petitioner filed a petition for a 

writ of certiorari with the Alabama Supreme Court (Doc. 11 att. 

3), which the court granted for the limited purpose of reviewing 

Petitioner’s sentence. See Ex parte Tomlin, 909 So. 2d at 285. 

On October 3, 2003, the Alabama Supreme Court reversed 

Petitioner’s death sentence and remanded the case with 

instructions that Petitioner be resentenced to life in prison 

without the possibility of parole. Id. at 287. 

On May 10, 2004, the Mobile County Circuit Court 

resentenced Petitioner to life in prison without the possibility 

of parole. (Doc. 11, att. 7 at 13). The Alabama Court of 

Criminal Appeals affirmed Petitioner’s conviction and new 

sentence on August 27, 2004. (Doc. 11, att. 8). Petitioner 

filed a petition for a writ of certiorari in the Alabama Supreme

Court, which was denied on March 18, 2005. (Doc. 12, att. 1). 

The Alabama Court of Criminal Appeals issued a Certificate of 

Judgment on that same date, March 18, 2005. (Doc. 12, att. 2). 

Petitioner filed a petition for a writ of certiorari in the 

United States Supreme Court, which that court denied on January 

9, 2006. See Tomlin v. Alabama, 546 U.S. 1089 (2006).

On January 3, 2007, Petitioner, represented by counsel, 

filed a petition for post-conviction relief under Rule 32 of the 

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Alabama Rules of Civil Procedure. (Doc. 12, att. 4 at 13). 

Petitioner filed a separate Rule 32 petition, pro se, on or 

about January 9, 2007. (Id. at 13). The Mobile County Circuit 

Court denied Petitioner’s Rule 32 petition on November 7, 2008, 

as time barred, procedurally barred, and without merit. (Id. at 

18-25). The Alabama Court of Criminal Appeals affirmed that 

denial on June 12, 2009. (Doc. 12, att. 10). 

On August 10, 2009, Petitioner filed a petition for a writ 

of certiorari with the Alabama Supreme Court, which that court 

denied on March 5, 2010. (Doc. 12, att. 12; Doc. 12, att. 13). 

On that same date, the Alabama Court of Criminal Appeals issued 

a Certificate of Judgment. (Doc. 12, att. 14). 

On March 11, 2010, Petitioner filed the instant petition 

for a writ of habeas corpus setting forth thirty claims in 

support of his request for habeas relief. (Doc. 1). On June 

29, 2010, Respondent filed an Answer to the petition and, on 

December 3, 2010, Petitioner filed an objection thereto. (Docs. 

9, 10, 11, 12, 19). The Court will consider each of 

Petitioner’s claims in turn.

DISCUSSION

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

courts to consider applications for writs of habeas corpus 

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submitted by state prisoners. See Henderson v. Campbell, 353 F.

3d 880, 889 (11th Cir. 2003). Section 2254(d), as amended, 

provides that: 

(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 claimB

(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.

Id. In Williams v. Taylor, 529 U.S. 362, 412 (2000), Justice 

O’Connor, writing for a majority of the Court, recognized that 

“§ 2254(d)(1) places a new constraint on the power of a federal 

habeas court to grant a state prisoner’s application for a writ 

of habeas corpus with respect to claims adjudicated on the 

merits in state court.” 

A state-court decision is contrary to 

the Supreme Court’s clearly established 

precedent (1) if the state court applies a 

rule that contradicts the governing law as 

set forth in Supreme Court case law, or (2) 

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if the state court confronts a set of facts 

that are materially indistinguishable from 

those in a decision of the Supreme Court and 

nevertheless arrives at a result different 

from Supreme Court precedent. See Williams 

v. Taylor, 529 U.S. 362, 120 S. Ct. 1495, 

1519-20, 146 L. Ed. 2d 389 (2000).

A state court decision involves an 

unreasonable application of Supreme Court 

precedent “if the state court identifies the 

correct governing legal rule from [Supreme 

Court] cases but unreasonably applies it to 

the facts of the particular state prisoner’s 

case.” Williams, 120 S. Ct. at 1520. In 

addition, a state court decision involves an 

unreasonable application of Supreme Court 

precedent “if the state court either 

unreasonably extends a legal principle from 

[Supreme Court] precedent to a new context 

where it should not apply or unreasonably 

refuses to extend that principle to a new 

context where it should apply.” Id.

Bottoson v. Moore, 234 F. 3d 526, 531 (11th Cir. 2000). 

Moreover, the Act presumes as correct all determinations of 

factual issues made by a state court and places the burden upon 

the petitioner of rebutting such a presumption of correctness by 

clear and convincing evidence. 28 U.S.C. § 2254(e). Having 

established the proper standard of review, the Court turns to 

Petitioner’s claims. 

A. Claim One.

On direct appeal of his fourth trial, Tomlin asserts, in 

Claim One, that the prosecutor used his peremptory challenges in 

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a racially discriminatory fashion in violation of Batson v. 

Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986) 

and the Sixth and Fourteen Amendments to the United States 

Constitution. (Doc. 1 at 15). Respondent counters that this 

claim was raised in the state courts and properly denied on the 

merits. (Doc. 9 at 14).

In Batson, the United States Supreme Court held that the 

Equal Protection Clause of the Fourteenth Amendment prohibits 

the use of peremptory challenges of venire members based solely 

on the fact that the venire members belong to the same race as a 

criminal defendant. “Baton requires a court to undertake a 

three-step analysis to evaluate equal protection challenges to a 

prosecutor’s use of peremptory challenges.” McGahee v. Alabama 

Dep’t of Corrections, 560 F. 3d 1252, 1256 (11th Cir. 2009). 

“First, the trial court must determine whether the defendant has 

made a prima facie showing that the prosecutor exercised a 

peremptory challenge on the basis of race . . . Second, if the 

showing is made, the burden shifts to the prosecutor to present 

a race-neutral explanation for striking the juror in 

question . . . Third, the court must then determine whether the 

defendant has carried his burden of proving purposeful 

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discrimination.” Rice v. Collins, 546 U.S. 333, 338 126 S. Ct. 

969, 163 L. Ed. 2d 824 (2006) (citations omitted).

The crucial third step requires evaluation of the 

“persuasiveness of the justification proffered by the 

prosecutor,” with the ultimate burden of persuasion regarding 

racial motivation resting at all times with the opponent of the 

strike (in this case, the petitioner). Id.; see also Purkett v. 

Elem, 514 U.S. 765, 768, 115 S. Ct. 1769, 131 L. Ed. 2d 834 

(1995) (“If a race neutral explanation is tendered, the trial 

court must then decide (step three) whether the opponent of the 

strike has proven purposeful discrimination.”). “The 

credibility of the prosecution’s explanation is to be evaluated 

considering the totality of the relevant facts, including 

whether members of a race were disproportionately excluded.” 

Parker v. Allen, 565 F. 3d 1258, 1271 (11th Cir. 2009) 

(citation omitted).4

 4 “Questions arise regarding the credibility of the 

explanation and the possibility that the explanation is 

pretextual (1) when the prosecutor’s explanation of a strike is 

equally applicable to jurors of a different race who have not 

been stricken; (2) upon a comparative analysis of the jurors 

struck and those who remained, including the attributes of the 

white and black venire members; (3) or when the prosecution 

fails to engage in a meaningful voir dire examination on a 

(Continued)

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The state trial court’s decision on the ultimate question 

of discriminatory intent represents a finding of fact of the 

sort accorded great deference on appeal. See Hernandez v. New 

York, 500 U.S. 352, 364, 111 S. Ct. 1859, 114 L. Ed. 2d 395 

(1991). Thus, the ultimate question for this federal court is 

whether the state appellate courts’ determination that 

preemptory challenges of black jurors in this case were not 

“motivated by intentional racial discrimination” is a decision 

which was “contrary to” or “an unreasonable application of 

federal law” or a decision “that was based on an unreasonable 

determination of the facts in light of the evidence presented in 

the State Court proceeding.” Dallas v. Commissioner, Alabama

Department of Corrections, 2012 U.S. Dist. LEXIS 3877 *32-33 

(M.D. Ala. January 12, 2012) (quoting 28 U.S. C. § 2254(d)(1) 

and (2). Moreover, as noted supra, there is a presumption of 

correction to factual determinations made by state courts, and 

the presumption may be rebutted only by “clear and convincing 

evidence.” Id., 2012 U.S. Dist. LEXIS * 33 (quoting 28 U.S.C. § 

2254(e)(1) at 364). 

 

subject that it alleges it is concerned.” Parker, 565 F. 3d at 

1271 (citations omitted).

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On direct appeal of Tomlin’s fourth trial, the Alabama 

Court of Criminal Appeals reviewed and rejected Tomlin’s claim 

that the prosecution exercised its peremptory strikes in a 

racially discriminatory manner to exclude black venire members.5 

In rejecting the claim, the Alabama Court of Criminal Appeals 

set forth the controlling law and observed as follows: 

The party alleging a Batson violation 

has the burden of establishing a prima facie 

case of discrimination. It is only when a 

prima facie case of discrimination has been 

established that the challenged party must 

explain its reasons for removing the 

designated jurors.

Here, Tomlin argues that he established 

a strong prima facie case. We do not agree. 

A review of the record shows that Tomlin’s 

only basis for making a Batson objection was 

the number of strikes the State used to 

remove black prospective jurors from the 

venire. Tomlin argues that the prosecutor 

used 15 of its 25 strikes to remove blacks. 

Our review of the record reflects that the 

 5 Following this decision, the Alabama Supreme Court granted 

Tomlin’s petition for a writ of certiorari for the limited 

purpose of reviewing his sentence. See Ex parte Tomlin, 909 S.

2d at 285. The Court ultimately reversed Tomlin’s death sentence 

based on its finding that the trial court had improperly weighed 

the aggravating and mitigating circumstances at Tomlin’s 

sentencing hearing. Id., at 286-87. The Alabama Supreme Court 

reversed and remanded the case with instructions for the trial 

court to resentence Tomlin to life in prison without the 

possibility of parole. Id. In all other respects, the decision 

of the Alabama Court of Criminal Appeals was affirmed.

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prosecutor used 13 strikes to remove blacks, 

11 strikes to remove whites, and 1 strike to 

remove an individual of Oriental descent. 

Defense counsel used all of its 25 strikes 

to remove whites from the venire. Chosen 

for Tomlin’s jury were: 5 blacks, 5 whites, 

1 Mexican-American, and 1 individual who 

indicated on her jury questionnaire that she 

was of the “I” race-we assume that this 

indicates that this juror was of Indian 

descent.

The trial court, without ruling on 

whether a prima facie case of discrimination 

had been established, requested that the 

State give its reasons for striking the 

black prospective jurors. Here, because the 

only basis for the Batson objection was the 

number of strikes that the State used to 

remove blacks the trial court could have 

lawfully found that the defense had failed 

to establish a prima facie case of 

discrimination. 

Tomlin v. State of Alabama, 909 So. 2d 213, 241 (Ala. Crim. 

2002). 

 The Alabama Court of Criminal Appeals evaluated the 

reasons articulated by the prosecutor for his strikes because 

the trial court had him to place those reasons on the record. 

Id. The reasons proffered by the prosecutor included6:

 6 From the record, it appears that Prosecutor Valeska 

conducted the actual striking of the jury, while Prosecutor 

Estes offered the reasons for the strikes. 

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Prospective juror number thirty-one 

[W.V.]: expressed an opposition to capital 

punishment; is a minister; and expressed 

that he had speaking engagements during the 

week which the prosecutor thought might be 

on his mind. 

Prospective juror number eight [D.H.]: 

stated that he did not believe in capital 

punishment and he also had problem having to 

look at possible photographs of people at 

crime scenes. 

Prospective juror number forty-two 

[T.J.]: had been represented or was 

represented by Mr. Yelverton, who was the 

previous defense counsel in this case; also 

had a problem with the photographs; during 

the voir dire, she sat on the front row, and 

another juror had to calm her down and speak 

to her continuously; she also said she was 

just scared to death to be here. 

Prospective juror number twenty-eight 

[B.A.]: responded to the question of 

philosophical or moral reservations about 

sitting in judgment of other people and she 

indicated that she had a problem judging 

other people.

Prospective Juror Number Sixty-four: 

[E.H.] reported that her son was represented 

by Mr. Madden, who was involved in this case 

earlier. Also, she was a school teacher and 

prosecutor stated that the state struck all 

Board of Ed-all school teachers.

Prospective Juror Number Thirteen: 

[J.R.] is single; a student with no 

children; prosecutor indicated that single 

with no children was another criteria that 

prosecution was tactically looking for in 

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case; also J.R. was struck because he is 

very small and looked very young.

Prospective Juror Number Fifty-four: 

[K.J.] is a school teacher at LeFlore High 

School.

Prospective Juror Number Thirty: [J.M.]7

is young and did not have any children; 

also, the father of one of the victims 

reported that [J.M.] set directly in front 

of him, and he observed [J.M.] talking 

strangely and he did not feel comfortable 

with him, but the victim’s father did not 

relay any specific statement made by [J.M.].

Prospective Juror Number Twelve: 

[B.T.]: made statement on the record about 

difficulty looking at the pictures and she 

has children; that’s all; she is a postal 

worker and prosecution normally strikes 

postal workers; “that’s common for us”.

Prospective Juror Number Fifty-seven 

[R.C.]: stated he has a brother and stepson 

in the penitentiary; initially indicated 

that he would not be able to follow the law 

or instructions, and after exchange with 

court, he finally said that he would be able 

to but he acted reluctant to do so.

Prospective Juror Number Twenty-five 

[S.S.]: stated that he did had surgery 

Tuesday; had a business to run and also he 

was involved in an incident or his wife or 

 7 Because of a stenographical error in the trial court 

transcript, juror “J.M.” is erroneously referenced in the 

Alabama Court of Criminal Appeals opinion as juror “J.N.” (Doc. 

9-5 at 82).

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ex-wife was involved in an incident in which 

nothing was ever done about it from the law 

enforcement standpoint and as a result, he 

did not feel comfortable about it or was 

upset about it.8

Prospective Juror Number Fifty-eight 

[J.H.]: is a young man with no children.

Prospective Juror Number Seven [A.L.]: 

Prosecutor stated he had a good faith belief 

that A.L. had been arrested and convicted of 

DUI.

Prospective Juror Number Seventy-five 

[J.J.]: stated her opposition to the death 

penalty; however, during individual voir 

dire, she stated that she could follow the 

law, but she would feel very uncomfortable 

if she felt like it was her responsibility 

at some later point that the person that she 

was judging would receive the death penalty.

Prospective Juror Number Seventy-one 

[S.P.]: “as far as [prosecutor was] 

concerned, he’s on the jury. We had to 

strike somebody, we struck number seventyone. That’s the only reason why we struck 

him.” When the Court advised that the state 

had not given a reason for striking seventyone, the prosecutor responded “he was 

young”.

(Doc. 9-5 at 76-82).

 8 The record reflects that this prospective juror is 

Japanese. See (Doc. 9-8 at 175).

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 The Court of Appeals observed that “Tomlin argues 

primarily that the trial court erred in denying his 

Batson objection because one young white juror, J.R., 

was left on the jury.” Tomlin, 909 So. 2d at 245. In 

rejecting Tomlin’s claim, the Court held:

Our review of the prosecutor’s strikes 

shows that the first two strikes were used 

to remove white individuals. The fourth and 

sixth strikes were used to remove white 

unmarried individuals who were 20 years of 

age. The State’s ninth strike was used to 

remove a 29-year-old white unmarried 

individual. Out of the State’s first 10 

strikes, the State used 3 to remove young 

unmarried white individuals and 1 to remove 

a 24-year-old unmarried black individual. 

The record indicates that J.R. was married, 

although she was young. The prosecutor’s 

use of his strikes did not reflect any 

pattern of discrimination. Also, a review 

of the voir dire examination does not show 

that any particular race of jurors were 

questioned more or less than others. 

Moreover, the prosecutor struck 11 whites, 

and the majority of the prosecutor’s first 

strikes were used to remove white 

prospective jurors. Most importantly, the 

record shows that defense counsel used every 

one of its 25 peremptory strikes to remove 

white prospective jurors from the venire. 

This placed the prosecution in a very 

tenuous position. Last, five blacks served 

on Tomlin’s jury along with five whites.

Id. 909 So. 2d at 245-246.

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The state appellate court also discussed the fact that 

Tomlin challenged the prosecutor’s strike of prospective juror 

no. 7 [A.L.] based upon his belief that A.L. had a prior 

conviction for driving under the influence. The appellate court 

found that the record reflects that the prosecutor advised that 

while he did not have a certified copy of prospective juror no. 

7 [A.L.]’s conviction, he did have a sheet from the local

District Attorney’s office reflecting that A.L. had been 

convicted of driving under the influence, and that the trial 

court reviewed the sheet from the District Attorney’s office 

before finding that no Batson violation had been established. 

The appellate court determined that the record supports the 

trial court’s ruling, as a venire member’s involvement with 

criminal activity is a race-neutral reason for removing a juror. 

Id. 909 So. 2d at 246-247. The Court of Appeals further 

determined that:

The reasons advanced for striking the 

remainder of the black prospective jurors 

were not questioned at trial. We have 

stated, “There is no requirement that a 

prosecutor establish evidentiary support for 

every strike in every case, especially where 

the defendant has not specifically 

questioned the validity of the prosecutor’s 

explanations or demanded further proof.” 

Hall v. State, 816 So. 2d 80, 85 (Ala. Crim. 

App. 1999). However, because this is a 

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capital case, we will consider this argument 

on appeal.

One black prospective juror was struck 

because of his occupation-he was a teacher 

at a local high school. However, there is 

absolutely no evidence in the record, the 

voir dire, or the juror questionnaires, 

indicating that there was a white juror who 

was a teacher and who was not struck by the 

State. . . .

The remaining strikes were raceneutral. Strikes based on a juror’s views 

toward capital punishment do not violate 

Batson. See Lucy v. State, 785 So. 2d 1174 

(Ala. Crim. App. 2000). Striking a juror 

based on the fact that he or she has 

previously been represented by defense 

counsel is a reason that does not violate 

Batson. See Ward v. State, 539 So. 2d 407 

(Ala. Crim. App. 1988).

“When reviewing a trial court’s ruling 

on a Batson motion, this court gives 

deference to the trial court and will 

reverse a trial court’s decision only if the 

ruling is clearly erroneous.” Yancey v. 

State, 813 So. 2d 1, 3 (Ala. Crim. App. 

2001). We cannot say, after reviewing the 

record, the factors articulated in Branch, 

the fact that defense counsel struck all 25 

whites from the venire, and the composition 

of the jury, that the reasons advanced by 

the prosecutor were merely a sham. There is 

no evidence indicating that the trial court 

abused its substantial discretion in denying 

the Batson motion.

Id., 909 So. 2d at 247.

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In his brief before this Court, Tomlin makes the following 

general arguments: 1) the prosecutor struck 15 of 25 minority 

members of the venire panel, and offered pretextual, 

unsupported, contradictory and non-existent reasons for the 

strikes; 2) the prosecutor allowed whites to serve with the same 

characteristics as blacks who were stricken; 3) the prosecutor 

failed to question the minorities who were stricken, and 4) the 

prosecutor worked in a prosecution office that has been found to 

have violated Swain v. Alabama, 380 U.S. 202 (1965). With 

respect to the individual strikes, Tomlin argues that the 

prosecution did not provide a reason for striking black 

prospective juror no. 71 [S.P.], and that the stated reason of 

age is pretextual because the prosecutor failed to strike a 

white female juror who was younger than prospective juror no. 

71. In addition, Tomlin argues that striking a black 

prospective juror because she is a postal worker is egregious, 

and that black prospective juror no. 7 (A.L.) was improperly 

struck based on an unverified conviction for driving under the 

influence. (Doc. 1: Doc. 19 at 25-46).

Turning first to Tomlin’s argument that the number of 

strikes that the prosecution exercised against blacks 

established strong evidence of discrimination, as noted supra, 

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the state appellate court found that the record does not 

demonstrate a pattern of discriminatory strikes by the 

prosecution. Indeed, there is no evidence that the prosecution 

struck all or nearly all of the minority prospective jurors. 

Instead, the record reflects that both sides were accorded 

twenty-five strikes, that four of the prosecution’s first six 

strikes were white individuals, and that while the defense used 

each of its twenty-five strikes to strike white venire members, 

and thus effectively reduced the number of white individuals who 

were available for the prosecution to strike, nearly half of the 

prosecution’s twenty-five strikes were exercised against white 

individuals. (Doc. 9-5 at 63-69; Doc 9-8 at 175-177). Thus, 

the mere fact that the prosecution struck 14 minority 

prospective jurors does not establish a pattern of 

discriminatory strikes against prospective minority jurors9. 

(Id.). 

Furthermore, it is noteworthy, as observed by the appellate 

court, that the jury that was impaneled included five whites, 

 9 While Tomlin contends that the prosecution struck 15 

minorities, the appellate court found and the record reflects 

that the prosecution struck 13 blacks, 1 Asian and 11 whites. 

(Doc. 9-5 at 63-69; Doc. 9-8 at 175-177).

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five blacks, an Asian, and another individual who the appellate 

court listed as Indian. (Docs. 9-8 at 175-177; Doc. 9-8 at 175-

177). In addition, one white and one black served as

alternates10. While the fact that some blacks are ultimately 

impaneled to serve on the jury does not foreclose a Batson

challenge, a comparison of the jury that is impaneled to the 

venire is properly considered in a Batson analysis. See United 

States v. Gamory, 635 F. 3d 480, 496 (11th Cir. 2011) (pointing 

out that “there were three African-Americans seated on the jury” 

in rejecting Batson challenge); United States v. Edouard, 485 F. 

3d 1324, 1343 (11th Cir. 2007) (in finding that petitioner’s 

Batson claim fails, noting that “at least three black jurors 

served unchallenged on the sworn panel”); United States v. 

Puentes, 50 F. 3d 1567, 1578 (11th Cir. 1995) (“Although the 

presence of African American jurors does not dispose of an 

allegation of race-based peremptory challenges, it is a 

significant factor tending to prove the paucity of the claim.”); 

 10 Both the trial court and the appellate court determined 

that alternate jurors should be viewed as having been struck for 

purposes of a Batson analysis. Tomlin, 909 So. 2d at 244, n 7. 

Here, there is nothing in the record to reflect that either 

alternate replaced a seated juror and participated in 

deliberations. 

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Lee v. Thomas, 2012 U.S. Dist. LEXIS 75470 (May 30, 2012, S.D. 

Ala.)(“Courts routinely discuss the final composition of a jury 

in Batson challenges, at least in part because the composition 

of the jury to the composition of the venire is a circumstance 

that is properly considered in a Batson analysis.”)

With respect to Tomlin’s assertion that the prosecution 

allowed whites to serve with the same characteristics as blacks 

who were stricken, the undersigned notes that a contention that 

the prosecutor did not treat similarly situated black and white 

venire persons similarly can be a viable basis for interposing a 

pretext argument. Parker, 565 F. 3d at 1271. An examination of 

the trial transcript reflects that during the Batson hearing, 

defense counsel made a general objection about the number of 

blacks being struck by the prosecutor. (Doc. 9-5 at 71-75). 

Although the trial court did not find that a prima facie case 

had been established, as noted, the appellate court presumed 

that there had been a showing since the trial court proceeded to 

the reasons for the prosecutor’s strikes. Once the prosecutor 

offered the reasons for the state’s peremptory strikes, and the 

trial court implicitly found them to be race neutral, defense 

counsel argued that the reasons were pretexual, and noted that 

some jurors were struck because they had children while some 

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27

were struck because they did not have children. (Doc. 9-5 at 

82-83). Defense counsel then specifically pointed out that 

black prospective juror no. 13 [J.R.] was struck for the stated 

reason that he was small and looked young, and that black 

prospective juror no. 30 [J.M.] was struck because he was young 

and had no kids, whereas white jurors no. 11 [J.R.] had no kids 

and white juror no. 47 [M.S.] had kids. Defense counsel also 

asserted that there was no documentation that black prospective 

juror no. 9 [A.L.] had a DUI. (Id.).

In addressing defense counsel’s pretext arguments, the 

prosecutor explained that the state was attempting to strike 

potential jurors who were unmarried and had no children. The 

prosecutor acknowledged that they may have missed someone, and 

explained that juror no. 11 [J.R.], the young white female cited 

by defense counsel, was married; thus, though young, she was not 

stricken. The prosecutor further noted that while, in offering 

explanations for the state’s strikes, he had mentioned the fact 

that black prospective juror no. 12 [B.T.] had children, he was

trying to convey that one of the reasons that she was stricken was 

that she had expressed concerns with regard to childcare issues, 

and had in fact passed a note indicating such to the judge. (Doc. 

9-5 at 84-85). With respect to black prospective juror no. 7 

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[A.L.], the prosecutor advised that he had a good faith belief 

that A.L. had been convicted of driving under the influence, based 

on a records check that had been conducted by the district 

attorney’s office. Although the prosecutor did not have a 

certified copy of the conviction, he provided to the trial court 

and defense counsel documentation from the district attorney’s 

office. (Id.).

As noted supra, the appellate court observed that Tomlin 

was primarily challenging the fact that one young white juror, 

namely juror no. 11 [J.R.] was allowed to serve, and it 

determined that the evidence did not demonstrate a pattern of 

discriminatory strikes but instead showed that the prosecutor 

struck both black and white jurors who were young and unmarried, 

and that juror no. 11 [J.R.] although young, was married. The 

court further noted that out of the state’s first ten strikes, 

three were used to remove young, unmarried white individuals and 

one was used to remove a young black unmarried individual. 909 

So. 2d at 245-246. Not only are these findings borne out by the 

record, but also a review of the jury questionnaires reflect 

that both prospective juror no. [J.M.] and prospective juror 

[J.R.] were single, and at the time of jury selection in 1999, 

they had only been out of high school for a couple of years; 

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thus, they were obviously younger individuals11 (Doc. 9-9 at 175, 

197). Given that both prospective jurors no. 30 [J.M.] and no. 

13 [J.R.] were single, whereas, juror no. 11 [J.R.] was married, 

the appellate court’s determination that the striking of 

prospective jurors no. 30 and no. 13 was not pretexual is 

support by the record.

Tomlin also asserted both before this court, and the state 

appellate court, that the prosecution’s strike of black 

prospective juror no. 71 [S.P.] was pretextual because like 

white juror no. 11 [J.R.], prospective juror no. 71[S.P.] was 

married, and was actually older than juror no. 11 [J.R.]; yet, 

he was struck for the purported reason that he was young12. The 

appellate court did not specifically address Tomlin’s contention 

regarding prospective juror no. 71 [S.P.]; however, the 

 11 The Court cannot determine the exact ages of many of the 

members of the venire because information regarding dates of 

births were redacted from the questionnaire prior to filing 

presumably in compliance with court regulations regarding 

privacy. Notwithstanding, many of the questionnaires contain 

information regarding the dates that respective venire members 

attended high school; thus, based on those dates, where 

provided, the Court is able to draw inferences regarding the 

approximate ages of some of the venire members. 

12 In the State’s brief before the appellate court, the 

state did not contest that black prospective juror no. 71 [S.P.] 

was older than white juror no. 11 [J.R.]. (Doc. 10-9 at 34-37).

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appellate court did note that during jury selection, defense 

counsel did not question the reasons advanced for striking 

several of the black prospective jurors and, after examining the 

trial record, the appellate court concluded that the reasons 

advanced for each of the prosecution’s strikes of black 

prospective jurors, were race neutral and that Tomlin failed to 

establish a Batson violation.

The trial transcript reflects as follows with respect to 

prospective juror no. 71 [S.P]: “Your Honor, at the point of the 

last strike for [S.P.] that as far as we were concerned, he’s on 

the jury. We had to strike somebody, we struck number Seventyone. That’s the only reason why we struck him.” After the Court 

stated that the prosecutor had not given a reason for the 

strike, the prosecutor then responded, “He was young, Your 

Honor.” (Doc. 9-5 at 81).

The trial transcript also reflects that while defense 

counsel made a general pretext argument, the strike of 

prospective juror no. 71 [S.P.] was not one of the specific 

strikes that defense counsel argued was pretextual; thus, the 

trial court never had the opportunity to consider the contention 

that Tomlin now raises regarding this particular strike. 

Further, while the appellate court did not directly address this 

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specific strike it did find that the prosecution offered raceneutral reasons for its strikes and that Tomlin did not 

establish a Batson violation. Based upon a through review of 

the record, the undersigned finds, that while black prospective 

juror no. 71 [S.P] and white juror no. 11 [J.R.] were similar in 

age and marital status, such is not sufficient to establish 

purposeful discrimination under the particular facts of this 

case. The prosecutor’s comments indicate that he was 

comfortable having prospective juror no. 71 [S.P.] serve as a 

juror, and was at end the process, he needed to make one more 

strike; thus, he selected S.P. because he was young. The trial 

judge had an opportunity to consider the prosecutor’s demeanor 

and creditability with respect to his asserted reason, which 

went unchallenged by defense counsel, and was satisfied that it 

was race neutral and credible13. Further, the record reflects 

 13 The Supreme Court has repeatedly reminded lower federal 

courts that they are not the state courts, and as a result, they 

are not the factfinders on whether a prosecutor’s race-neutral 

reasons were, in fact, credible. As observed by Justice Breyer: 

“The [state] trial judge is best placed to consider the factors 

that underlie credibility: demeanor, context and atmosphere. And 

the trial judge is best placed to determine whether, in a 

borderline case, a prosecutor’s hesitation or contradiction 

reflect (a) deception, or (b) the difficulty of providing a 

(Continued)

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that the prosecutor’s strike immediately prior to prospective 

juror no. 71 [S.P.] was prospective juror no. 10 [C.H.]14, a 

white individual, who like S.P., was married and was older than 

juror no. 11 [J.R.], the white female who was allowed to remain 

on the jury. (Doc. 9-5 at 63, Doc. 9-4 at 110). Against this 

backdrop of facts, the undersigned finds that while the 

prosecutor’s reason for striking prospective juror no. 71 [S.P.] 

may be deemed illogical, or weak, it does not raise a strong 

inference of purposeful race discrimination. 

The Court turns next to Tomlin’s contention regarding the 

striking or prospective juror no. 7 [A.L.]. As noted, the 

appellate court addressed and rejected Tomlin’s contention that 

the prosecution’s strike of black prospective juror no. 7 [A.L.] 

was pretextual because there was no certification of his 

conviction. In its decision, the appellate court found that 

involvement in criminal activity is a race-neutral reason for 

 

rational reason for an instinctive decision.” Rice, 546 U.S. at 

343-344 (Breyer, J., concurring)

14 The questionnaire for prospective juror No. 10 [C.H.] 

reflects that she attended high school during 1972-1975; thus, 

by the court’s calculation she was approximately 41-42 at the 

time of the trial in 1999.

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removing a juror, that the trial court reviewed the documents 

that formed the basis of the prosecutor’s strike of A.L. and 

that its ruling is supported by the record evidence. 909 So. 2d 

at 246-247. Tomlin has not argued that prospective juror no. 7 

[A.L.] did not in fact have a criminal conviction but instead 

contends that certification was required. The undersigned finds 

that in this instance, where the prosecutor was relying upon 

information obtained from the district attorney’s office that 

reflected that A.L. had a criminal conviction, and the 

prosecutor presented the documentation relied upon, the state 

courts’ finding that no pretext had been established is 

supported by the record. 

Tomlin’s next contention that the prosecutor failed to 

question prospective jurors such as A.L. regarding the areas 

relied upon to strike them is without merit. First of all, as 

determined by the appellate court, a review of the trial 

transcript does not show that any particular race of venire 

members was questioned more or less than others. Further, in 

instances where the prosecution had the information available to 

them by way of jury questionnaires or other documentation, it 

was not necessary for the prosecution to ask questions about 

information already in their possession. This is particularly 

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34

true where the record does not reflect that the prosecutor’s 

questioning of prospective jurors was conducted in a 

discriminatory manner.

Equally without merit is Tomlin’s contention that the 

prosecution’s striking of some jurors, such as postal workers or 

teachers, was egregious and establishes pretext. On appeal, the 

appellate court determined that the prosecutor exercised its 

strike of teachers in a nondiscriminatory fashion. 

Specifically, the court found that “there is absolutely no 

evidence in the record, the voir dire, or the jury 

questionnaires, indicating that there was a white juror who was 

a teacher and was not struck by the state. 909 So. 2d at 247. 

Tomlin has not proffered any facts, which suggest that the 

prosecution struck black jurors on account of their occupation, 

but permitted white jurors with the same occupations to remain 

on the panel. Moreover, extant case law clearly provides that 

the prosecutor’s articulated reason need not be logical or 

persuasive- it must merely be race neutral. The decision to 

strike jurors based on their occupation qualifies as such.

As noted supra, Tomlin also argues as evidence of pretext 

that the prosecutor worked in an office with a history of Batson

violations and cites the case of Chatom v. State, 1991 Ala. 

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Crim. App. LEXIS 1082 (Ala. Crim. App. May 31, 1991) and Jones 

v. Davis, 906 F. 2d 552 (11th Cir. 1990) in support of his 

contention that Don Valeska, one of the prosecutors in this 

case, was part of an office with a history of Batson violations. 

A review of the Chatom decision reflects Valeska was the 

prosecutor, that the case was reversed because in his opening 

statement, he make statements about offenses other than those 

for which the defendant was charged, and that the appellate 

court found that the comments denied the defendant’s right to a 

fair trial. The appellate court in Chatom also noted that in 

response to defendant’s challenge of the striking of all eleven 

blacks on the venire, the trial court erroneously found that a 

white defendant could not challenge the removal of blacks from 

the venire. Thus, the court held that even if the case had not 

been remanded because of the opening statement, it would have 

been remanded for a Batson hearing. The determination that a 

Batson hearing would have been warranted is a far cry from a 

finding that the prosecutor had engaged in discriminatory Batson

violations. Likewise, the fact that Valeska was employed in a 

district attorney’s office during the period in which there was 

a finding of a Batson violation is not evidence that he 

exercised his preemptory strikes in a discriminatory fashion in 

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36

this case, or any other. Simply put, Tomlin has not pointed to 

any facts that suggest that Valeska has a history of committing 

Batson violations.

 Having carefully reviewed the record at length, the Court 

finds that there is no evidence that the Alabama state courts’ 

credibility determination that the peremptory challenges of 

black prospective jurors by the prosecution in this case were 

not motivated by intentional racial discrimination is a decision 

that was “contrary to” or “an unreasonable application of 

federal law” or a decision “that was based on unreasonable 

determination of the facts in light of the evidence presented in 

the State court proceeding.” 28 U.S.C. § 2254(d)(1) and (2). 

Therefore, Tomlin’s claim that his constitutional rights were 

violated by the State’s use of its peremptory challenges, as 

alleged in habeas Claim One, is without merit.

A. Claim Two. 

In Claim Two, Petitioner asserts that the trial court’s 

practice of implementing the more restrictive of two possible 

remedies for a successful Batson challenge, i.e., dismissing the 

entire jury venire instead of re-seating any improperly removed 

jurors, made the assertion of the challenge impracticable and 

Case 1:10-cv-00120-CG-B Document 24 Filed 03/08/13 Page 36 of 194
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effectively denied him his rights under the Equal Protection 

Clause of the Fourteenth Amendment. (Doc. 1 at 18). 

Petitioner presented this same argument to the Alabama Court of 

Criminal Appeals on direct appeal of his fourth trial, and, in 

its memorandum opinion rejecting Petitioner’s claim, the court 

stated:

Tomlin argues in brief that “the trial 

court’s practice of summarily implementing 

the more restrictive of two possible 

remedies for a Batson violation made the 

assertion of the Batson challenge 

impracticable in this case and effectively 

denied Phillip Tomlin his right to equal 

protection under the Fourteenth Amendment.”

We fail to See how this argument pertains to 

Tomlin’s Batson objection. After Tomlin 

made his Batson objection and the discussion 

concerning Tomlin’s objection was concluded, 

the following occurred:

“[Prosecutor]: Yes, Your Honor. We 

would make a reverse Batson challenge 

based on the fact that the Defense 

struck 25 out of 25 white jurors and, 

specifically, we would-we would 

challenge-

“The Court: And the State is requesting 

and the State wants to be heard on all 

25 challenges for the Defense?

“[Prosecutor]: I’m gonna pick those 

individuals out. Juror Number Twenty, 

Juror Number Thirty-two.

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“The Court: Okay. So the State wants 

to be heard on a reverse Batson and 

throughout (sic) the entire panel.

“[Prosecutor]: Those jurors which-

“The Court: Well, that’s the only 

alternative I have if I hear your 

motion and grant your motion.

“[Prosecutor]: Well it depends, Your 

Honor, on different-

“The Court: Well, that’s fine. I was 

just telling you we’ll hear each one 

you have an objection to and I’ll give 

the other side an opportunity to 

either-

“[Prosecutor]: Your Honor, just so 

we’re clear on-if we’re clear on, if 

the individual is wrongly struck, if 

you should find that-

“The Court: I’ll throw out the panel.

“[Prosecutor]: The entire panel?

“The Court: That’s right.

“[Prosecutor]: Okay. And is it the 

practice of some Courts to put one on-

“The Court: I don’t put any jurors on.

“[Prosecutor]: Okay. Your Honor, well 

then we’ll withdraw our motions, with 

our understanding that that was thethat was the way-we don’t believe that 

it would be correct to throw out this 

entire panel, Judge.

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39

“The Court: I don’t-that’s the practice 

of my court.

“[Prosecutor]: Well, we wouldn’t-Your 

Honor, I’m not saying-

“The Court: I understand that each 

judge is different. Some judges do 

that. I don’t do it that way.

“[Prosecutor]: I’m not saying it’s 

incorrect, I mean, we don’t believe 

that, but it is-but we do believe and 

we want to say for the record that is 

hypocrisy, Your Honor, when the jury is 

made up as it is, 50 percent-

“The Court: If you want to be heard on 

that, I will hear you.

“[Prosecutor]: We’ll withdraw our 

motion, Your Honor.

“The Court: [Defense Counsel].

“[Defense Counsel]: Yes, Your Honor. 

And I take it that Your Honor would 

have done the same thing if you would 

have granted our motion.

“The Court: I would have done the same 

thing.”

Initially, we note that at no time in the 

above discussion did defense counsel object 

to the trial court’s method of remedying the 

Batson objection. The only party to suffer 

any adverse ruling on this issue was the 

State-not the defense. The State argued 

that defense counsel used all of his 25 

strikes to remove white prospective jurors. 

Because defense counsel did not object to 

this issue in the trial court, we review 

Case 1:10-cv-00120-CG-B Document 24 Filed 03/08/13 Page 39 of 194
40

this issue for plain error. See Rule 45A, 

Ala. R. App. P.

As we recently stated in Dorsey, supra:

“While Alabama has recognized that a 

proper way to remedy a Batson violation 

is to excuse the entire venire and to 

start anew, See Ex parte Branch, 526 

So. 2d 609 (Ala. 1987), on remand, 526 

So. 2d 634 (Ala. Crim. App. 1988), we 

have also held that another way to cure 

a Batson objection is to place a juror 

who was improperly removed back on the 

venire. See O’Neal v. State, 602 So. d 

462, 465 (Ala. Crim. App. 1992). The 

United States Supreme Court in Batson

specifically refused to ‘formulate 

particular procedures’ to remedy a 

Batson violation; instead it left this 

decision to the state and federal 

courts. Batson, 476 U.S. at 99, 106 S.

Ct. 1712.

“The Maryland Court of Appeals in Jones 

v. State, 343 Md. 584, 683 A.2d 520 

(1996), thoroughly reviewed the methods 

of curing Batson violations used by the 

different state and federal courts. The 

Jones court stated:

“‘Some jurisdictions require trial 

courts finding a Batson violation to 

disallow the strike or to re-seat the 

improperly stricken juror. See

Ellerbee v. State, 215 Ga. App. 312, 

450 S.E.2d 443, 448 (1994); State v. 

Grim, 854 S.W.2d 403, 416 (Mo. 1993), 

cert. denied, Grim v. Missouri, 510 

U.S. 997, 114 S. Ct. 562, 126 L. Ed. 2d 

462 (1993) (“[T]he proper remedy for 

discriminatory use of peremptory 

strikes is to quash the strikes and 

Case 1:10-cv-00120-CG-B Document 24 Filed 03/08/13 Page 40 of 194
41

permit those members of the venire 

stricken for discriminatory reasons to 

sit on the jury if they otherwise 

would.”); Conerly v. State, 544 So. 2d 

1370 (Miss. 1989) (“Having determined 

that the state’s explanation did not 

provide a valid reason for striking 

Swain, the trial court was obligated to 

seat her on the jury unless the state 

could suggest another racially neutral 

reason for striking her.”); U.S. v. 

Robinson, 421 F. Supp. 467, 474 (D.

Conn. 1976), aff’d, 556 F. 2d 562 (2nd

Cir. 1977).

“‘A minority of jurisdictions require 

the trial court to discharge the entire 

venire and conduct jury selection from 

a newly convened venire. See State v. 

McCollum, 334 N.C. 208, 433 S.E. 2d 

144, 159 (1993), cert. denied, McCollum 

v. North Carolina, 512 U.S. 1254, 114 

S. Ct. 2784, 129 L. Ed. 2d 895 (1994) 

(the court noted that while neither 

reseating the stricken jury nor 

discharging the entire panel was 

inconsistent with the procedure 

required by Batson to remedy such a 

violation, “the simpler and ... clearly 

fairer approach is to begin the jury 

selection anew....”); People v. 

Wheeler, 22 Cal. 3d 258, 148 Cal. Rptr. 

890, 907, 583 P.2d 748, 765 (1978).

See Minniefield v. State, 539 N.E. 2d 

464 (Ind. 1989) (holding that the trial 

court erred by failing to grant 

mistrial as result of prosecution’s 

Batson violation).

“‘The majority of courts, however, have 

delegated to the discretion of the 

trial judge the determination of the 

appropriate remedy for a Batson

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42

violation. See e.g. State v. Franklin, 

318 S.C. 47, 456 S.E.2d 357, 360 

(1995), cert. denied, Franklin v. South 

Carolina, 516 U.S. 856, 116 S. Ct. 160, 

133 L. Ed. 2d 103 (1995) (“We hold ... 

that it is within the trial judge’s 

discretion to fashion the appropriate 

remedy under the particular facts of 

each case” .... (citation omitted)); 

Ezell v. State, 909 P.2d 68, 72 (Okla.

Crim. App. 1995) (“We adopt this 

flexible approach as the best solution.

We interpret Batson as suggesting that 

either remedy may be appropriate 

depending on the particular 

circumstances at trial”). Commonwealth 

v. Fruchtman, 418 Mass. 8, 633 N.E. 2d

369, 373 (1994), cert. denied, 

Fruchtman v. Massachusetts, 513 U.S. 

951, 115 S. Ct. 366, 130 L. Ed. 2d 319 

(1994)(“Choice of remedy was ... the 

prerogative of the judge”); Haschke v. 

Uniflow Manufacturing Co., 268 Ill.

App. 3d 1045, 206 Ill. Dec. 387, 391, 

645 N.E. 2d 392, 396 (1994); Friedman 

v. State, 654 So. 2d 50, 52 (Ala. Crim.

App. 1994), cert. denied, No. 1940189 

(Ala. 1995); Koo v. State, 640 N.E. 2d

95, 100 (Ind. Ct. App. 1994) (“Clearly, 

the remedy which a particular trial 

court employs upon a finding of 

purposeful discrimination is a matter 

left to the court’s discretion.”); 

State ex rel. Curry v. Bowman, 885 

S.W.2d 421, 425 (Tex. Crim. App. 1993), 

cert. denied, Texas v. Bowman, 513 U.S. 

866, 115 S. Ct. 184, 130 L. Ed. 2d 118 

(1994) (“[W]here a Batson claim is 

sustained the court may fashion a 

remedy in its discretion....”); 

Jefferson v. State, 595 So. 2d 38, 41 

(Fla. 1992) (“[I]t is within the trial 

judge’s discretion to fashion the 

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43

appropriate remedy under the particular 

facts of each case....”); People v. 

Irizarry, 165 A.D.2d 715, 560 N.Y.S.2d 

279, 281 (1990); State v. Walker, 154 

Wis. 2d 158, 453 N.W.2d 127, 135 n. 12 

(1990), cert. denied, 498 U.S. 962, 111 

S. Ct. 397, 112 L. Ed. 2d 406 (1990); 

U.S. v. Forbes, 816 F. 2d 1006, 1011 

(5th Cir. 1987).’

“343 Md. at 594-95, 683 A.2d at 525-26. 

Alabama is one of the jurisdictions 

that leave the choice of the method to 

deal with a Batson violation to the 

sound discretion of the trial court. 

See Ex parte Branch, supra. Alabama 

has never required that the trial court 

follow a certain procedure. We believe 

that the method used will depend on the 

facts presented in each case.”

881 So. 2d at 488-89. There was no 

plain error here.

Tomlin, 909 So. 2d at 248-51 (footnote omitted).

Having reviewed the record in this matter, the Court agrees 

with the Alabama Court of Criminal Appeals, for the precise 

reasons stated in its memorandum opinion, that Petitioner failed 

to establish that his constitutional rights under the Equal 

Protection Clause were violated by the trial court’s practice of 

dismissing the entire jury panel upon finding a Batson

violation. The Eleventh Circuit has recognized that a trial 

court, in its discretion, may dismiss the entire jury panel to 

remedy a Batson violation. See U.S. v. Walker, 490 F. 3d 1282, 

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44

1294, 1295 n.14 (11th Cir. 2007) (trial courts are accorded 

“significant latitude” in fashioning a remedy for a Batson

violation, which may include calling additional jurors to the 

venire, granting additional challenges to the injured party, “or 

in cases where those remedies are insufficient, the jury 

selection might begin anew with a fresh panel.”). Moreover, 

having found no Batson violation in this case, the trial court 

never implemented its challenged policy of dismissing the entire 

jury venire to remedy such a violation; thus, Petitioner 

suffered no prejudice therefrom. Accordingly, the Court finds 

that the decision of the Alabama Court of Criminal Appeals was a 

reasonable determination of the facts in light of the evidence 

presented, see 28 U.S.C. § 2254(d)(2), and that the court 

rendered a decision that is neither contrary to, nor an 

unreasonable application of, clearly established federal law. 

See 28 U.S.C. § 2254(d)(1). Therefore, Petitioner’s claim that 

his constitutional rights were violated, as alleged in habeas 

Claim Two, is without merit. 

B. Claims Three and Four. 

In Claim Three, Petitioner asserts that his rights to due 

process and a fair trial were violated by the trial court’s 

admission into evidence of Captain Sanford Henton’s testimony 

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45

that he investigated the death of Petitioner’s brother, David 

Tomlin, and determined that the death was accidental. (Doc. 1 

at 19). In Claim Four, Petitioner asserts that his rights to 

due process and a fair trial were violated by the trial court’s 

admission into evidence of Captain Henton’s testimony that Ricky 

Brune told him during that investigation that he and David 

Tomlin were friends. (Id. at 20). Petitioner presented both of 

these claims to the Alabama Court of Criminal Appeals on direct 

appeal of his fourth trial, and, in its memorandum opinion 

rejecting Petitioner’s claims, the court stated:

Tomlin argues that the trial court erred in 

allowing a State’s witness, Sanford Henton, 

a retired captain with the Prichard Police 

Department, to testify that David Tomlin’s 

death was ruled accidental.

Capt. Henton testified that he investigated 

David Tomlin’s death in November 1975. 

Instead of going into every aspect of the 

investigation, Capt. Henton was allowed to 

testify, over defense objection, that he 

determined that David Tomlin’s death was 

accidental. He based this finding on the 

scene of the shooting, the toxicologist 

findings, and the coroner’s findings.

On appeal, Tomlin argues that the trial 

court erroneously admitted this testimony 

because it was based on facts the witness 

did not personally observe. Although Capt. 

Henton did not personally observe the 

shooting that took David Tomlin’s life, his 

opinion that the shooting was an accident 

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46

was admissible. Rule 701, Ala. R. Evid., 

states:

“If the witness is not testifying as an 

expert, the witness’s testimony in the 

form of opinions or inferences is 

limited to those opinions or inferences 

which are (a) rationally based on the 

perception of the witness and (b) 

helpful to a clear understanding of the 

witness’s testimony or the 

determination of a fact in issue.”

Here, Capt. Henton supervised the 

investigation into David Tomlin’s death and 

formed a conclusion about the shooting. He 

correctly shared that conclusion with the 

jury instead of relating every aspect of his 

investigation.

In Acklin v. State, 790 So. 2d 975, 1004 

(Ala. Crim. App. 2000), cert. denied, 790 

So. 2d 1012 (Ala.), cert. denied, 533 U.S. 

936, 121 S. Ct. 2565, 150 L. Ed. 2d 729 

(2001), this Court stated:

“‘Alabama has long recognized ... that 

a lay witness may give an opinion when 

the witness is unable to relate the 

facts to the jurors well enough to 

place the jurors in as good a position 

as the witness was in to reach an 

opinion or to draw a conclusion. Some 

would call this the “collective facts” 

exception to the opinion evidence 

rule.’

“Advisory Committee’s Notes to Rule 701, 

Ala. R. Evid.

“In this case, the witness’s opinion 

amounted to this sort of shorthand 

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47

recitation of the facts and was admissible 

under Rule 701, Ala. R. Evid.”

See McGahee v. State, 554 So. 2d 454, 463 

(Ala. Crim. App. 1989), aff’d, 554 So. 2d 

473 (Ala. 1989) (“‘Consequently, a witness, 

who has had an opportunity to observe (Sees, 

hears, feels, tastes, or smells...) the 

facts concerning which he is to testify, may 

testify on his “belief,” his “best 

recollection,” or his “understanding.” A 

witness may also testify that something 

“looked like” or “Seemed like” 

something.’”). See also Dysart v. State, 

581 So. 2d 541 (Ala. Crim. App. 1990), cert. 

denied, 581 So. 2d 545 (Ala. 1991); 

McWilliams v. State, 476 So. 2d 1244 (Ala.

Crim. App. 1985); Andrews v. State, 473 So.

2d 1211 (Ala. Crim. App. 1985); Tice v. 

State, 460 So. 2d 273 (Ala. Crim. App.

1984); Wyrick v. State, 409 So. 2d 969 (Ala.

Crim. App. 1981); Murrell v. State, 377 So.

2d 1102 (Ala. Crim. App. 1979), cert. 

denied, 377 So. 2d 1108 (Ala. 1979); Madison 

v. State, 40 Ala. App. 62, 109 So. 2d 749 

(1958), cert. denied, 268 Ala. 699, 109 So.

2d 755 (Ala. 1959); Nugent v. State, 28 Ala.

App. 182, 181 So. 707 (1938), cert. denied, 

236 Ala. 213, 181 So. 709 (Ala. 1938).

As the State argued at trial, the 

circumstances surrounding David Tomlin’s 

death were admissible at Tomlin’s trial as 

tending to prove his motive for murdering 

Ricky Brune. Motive evidence is always 

admissible. Benefield v. State, 726 So. 2d 

286 (Ala. Crim. App. 1997).

Moreover, Tomlin testified that the shooting 

involving his brother was accidental. 

Therefore, if the admission of this evidence 

was error it was rendered harmless by 

Tomlin’s own testimony. “Testimony that may 

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48

be apparently inadmissible may be rendered 

innocuous by subsequent or prior lawful 

testimony to the same effect or from which 

the same facts can be inferred.” Yeomans v. 

State, 641 So. 2d 1269, 1272 (Ala. Crim.

App. 1993). “The erroneous admission of 

evidence that is merely cumulative is 

harmless error.” Dawson v. State, 675 So.

2d 897, 900 (Ala. Crim. App. 1995), aff’d, 

675 So. 2d 905 (Ala. 1996).

Tomlin also argues that the trial court 

erred in allowing Henton to testify about 

the relationship between Ricky Brune and 

David Tomlin-that Brune told him that he and 

David Tomlin had been friends. 

Specifically, he contends that this evidence 

was hearsay. Even if this evidence was 

hearsay, its admission was harmless. James 

Steven Heasling, the first defense witness, 

testified that he, Ricky Brune, and David 

Tomlin were friends. Thus, this evidence 

was lawfully before the jury.

Tomlin, 909 So. 2d at 253-54. 

As evidenced by the opinion of the Alabama Court of 

Criminal Appeals quoted above, the question of whether the trial 

court erred in admitting the testimony of Captain Henton, as 

alleged in habeas Claims Three and Four, involves the 

interpretation and application of state law by state courts. 

Federal habeas relief for state prisoners attacking their 

conviction is limited in scope:

The Supreme Court, a Justice thereof, a 

circuit judge, or a district court shall 

entertain an application for a writ of 

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49

habeas corpus in behalf of a person in 

custody pursuant to the judgment of a State 

court only on the ground that he is in 

custody in violation of the Constitution or 

laws or treaties of the United States.

28 U.S.C. § 2254(a) (emphasis added). “Federal courts hold no 

supervisory authority over state judicial proceedings and may 

intervene only to correct wrongs of a constitutional dimension.” 

Smith v. Phillips, 455 U.S. 209, 221 (1982). Questions of state 

law rarely have federal constitutional significance because “[a] 

state’s interpretation of its own laws or rules provides no 

basis for federal habeas corpus relief, since no question of a 

constitutional nature is involved.” Carrizales v. Wainwright, 

699 F. 2d 1053, 1055 (11th Cir. 1983). Such questions are 

reviewed in federal habeas proceedings only to determine whether 

the alleged errors rendered “the entire trial fundamentally 

unfair.” Id. at 1055. 

In reviewing an evidentiary determination of a state trial 

court, the federal court will “not sit as a ‘super’ state 

supreme court.’” Shaw v. Boney, 695 F. 2d 528, 530 (11th Cir. 

1983) (citations omitted). In Shaw, the Eleventh Circuit 

explained:

Unlike a state appellate court, we are not 

free to grant the petitioner relief simply 

because we believe the trial judge has 

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erred. The scope of our review is severely 

restricted. Indeed, the general rule is 

that a federal court will not review a trial 

court’s actions with respect to the 

admission of evidence. [Citations omitted]. 

A state evidentiary violation in and of 

itself does not support habeas corpus 

relief. [Citations omitted]. Before such 

relief may be granted, the violation must 

rise to the level of a denial of 

“fundamental fairness.” [Citations 

omitted]. 

In the context of state evidentiary 

rulings, the established standard of 

fundamental fairness is that habeas relief 

will be granted only if the state trial 

error was “material in the sense of a 

crucial, critical, highly significant 

factor.” [Citations omitted]. Moreover, 

application of this standard has been 

notably one sided, consistent with the 

reluctance of federal courts to second guess 

state evidentiary rulings. This court has 

established a well documented resistance to 

granting relief when a habeas petition 

alleges a federal claim based merely on a 

state evidentiary ruling. 

Id. Thus, habeas Claims Three and Four will be reviewed only to 

determine whether the alleged errors “render[ed] the entire 

trial fundamentally unfair.” Carrizales v. Wainwright, 699 F.

2d 1053, 1055 (11th Cir. 1983). 

Assuming, arguendo, that it was error for the trial court 

to admit the testimony of Captain Henton that Ricky Brune told 

him that he and David Tomlin were friends and that the 

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51

investigation into David Tomlin’s death revealed that it was an 

accident, the record simply does not support a finding that the 

admission of this evidence prejudiced the outcome of 

Petitioner’s trial and deprived him of fundamental fairness. As 

the Alabama Court of Criminal Appeals found, evidence that David 

Tomlin and Ricky Brune were friends and that the police 

considered David Tomlin’s death an accident was admitted through 

other witnesses, including Petitioner himself. (Doc. 9, att. 6 

at 66; Doc. 9, att. 7 at 47, 52-53, 59, 67, 92-95, 107). Thus, 

any error by the trial court in the admission of Captain 

Henton’s testimony to this effect was not “material in the sense 

of a crucial, critical, highly significant factor” in the trial

did not “render[] the entire trial fundamentally unfair.” 

Carrizales, 699 F. 2d at 1055; Shaw, 695 F. 2d at 530. 

Therefore, Petitioner’s habeas Claims Three and Four fail to 

state cognizable federal habeas claims.

C. Claim Five. 

In Claim Five, Petitioner asserts that his rights “to 

present a full defense” and to due process were violated by the 

trial court’s refusal to allow him to introduce habit evidence 

of heroin abuse by one of the victims, Ricky Brune. (Doc. 1 at 

21). Petitioner presented this claim to the Alabama Court of 

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Criminal Appeals on direct appeal of his fourth trial, and, in 

its memorandum opinion rejecting Petitioner’s claim, the court 

stated:

Tomlin argues that the trial court 

denied him his state and federal 

constitutional rights to present a full 

defense by precluding him from presenting 

habit evidence of Ricky Brune’s heroin 

abuse. Tomlin makes the following argument 

in brief:

“At Mr. Tomlin’s trial, defense 

counsel called a defense witness, Steve 

Hensarling. Mr. Hensarling was the 

former roommate of one of the victims, 

Ricky Brune. The defense needed Mr. 

Hensarling to testify as to the 

victim’s habit. Specifically, the 

defense needed Mr. Hensarling to 

testify that, when Ricky Brune would go 

buy heroin, he would habitually take 

with him a [soft-drink] bottle filled 

with water, syringes, and other drug 

paraphernalia. This evidence was 

crucial to Mr. Tomlin’s defense because 

it proved that Mr. Tomlin was not at 

the scene of the crime and therefore 

not guilty of the intentional murder of 

Cheryl Moore.”

During James Steven Heasling’s 

testimony, defense counsel questioned the 

witness about whether he knew Brune’s habits 

with regard to his drug use. Defense 

counsel then asked Heasling how much a “pill 

of heroin cost.” After this question, the 

prosecution objected, stating that this line 

of questioning was not relevant. Defense 

counsel then made the following argument:

 

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53

“Judge, this has denied my 

client’s Constitutional right to 

present his case, to call witnesses on 

his own behalf. The State’s whole 

argument in this case is gonna be about 

how much money these people had on 

them. They put in all of this evidence 

about what was in the car. They are 

gonna argue that my client was there 

with this other person. My theory of 

defense that what I’m gonna argue to 

the jury is that the [soft-drink] 

bottle, the syringes, and all the 

paraphernalia that was in the car-and 

this witness can testify, Your Honor, 

and he told the police officers this 

within days of the crime in his 

statement to the police-that that meant 

that this man was on his way to get 

drugs, because he never carried any of 

the paraphernalia, the needles or the 

bottle or the other things that were in 

the car. Those would be left 

elsewhere. That’s competent evidence, 

Your Honor.”

There was testimony presented that 

Brune used heroin. Also, a soft-drink 

bottle full of water and syringes was 

recovered from his vehicle. Heasling 

testified that Brune used these items when 

he used heroin. Heasling also testified 

that when he returned to his apartment on 

the day that Brune was killed, Brune was not 

there because “he was gone to score some 

drugs.” Tomlin was allowed to present 

evidence indicating that Brune used heroin.

However, Tomlin did not present 

evidence indicating that when Brune was 

carrying his drug paraphernalia he would not 

go anywhere except to buy drugs. There was 

no evidence presented at trial indicating 

Case 1:10-cv-00120-CG-B Document 24 Filed 03/08/13 Page 53 of 194
54

that Brune was going to meet Tomlin at the 

time he was murdered. Neither was an offer 

of proof or any evidence presented 

indicating that Heasling was going to 

testify that when Brune was carrying his 

drug paraphernalia it was his habit not to 

go anywhere else. There was absolutely 

nothing to connect Tomlin’s contention that 

Brune was on his way to buy drugs with his 

conclusion that this meant that Tomlin could 

not have been present at the murders. 

Clearly, this evidence was not relevant 

because there was no connection established 

either at trial or argued in Tomlin’s brief 

to this Court.

Relevant evidence is defined in Rule 

401, Ala. R. Evid., as “evidence having any 

tendency to make the existence of any fact 

that is of consequence to the determination 

of the action more probable or less probable 

than it would be without the evidence.”

“The admissibility of evidence that has 

been challenged as irrelevant and remote in 

a criminal prosecution is within the sound 

discretion of the trial judge. Primm v. 

State, 473 So. 2d 1149 (Ala. Cr. App. 1985). 

What is relevant is a matter ordinarily 

within the discretion of the trial judge, 

and, unless that discretion is abused, a 

ruling regarding relevancy will not be 

considered error. Dawkins v. State, 455 So.

2d 220 (Ala. Cr. App. 1984); Wicker v. 

State, 433 So. 2d 1190 (Ala. Cr. App.

1983).”

Touart v. State, 562 So. 2d 625, 629 

(Ala. Crim. App. 1989). See also Bombailey 

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55

v. State, 580 So. 2d 41 (Ala. Crim. App.

1990).

Tomlin, 909 So. 2d at 264-65 (footnote omitted).15

As with Claims Three and Four, the question presented by 

Claim Five involves the interpretation and application of state 

law by state courts. Thus, the issue of whether the trial court 

erred in refusing to admit evidence that it was Ricky Brune’s 

habit to take drug paraphernalia with him when he went to buy 

heroin (Doc. 1 at 21) will be reviewed on habeas only to 

determine whether the alleged state trial error was “material in 

the sense of a crucial, critical, highly significant factor,” 

Shaw, 695 F. 2d at 530, and rendered “the entire trial 

fundamentally unfair.” Carrizales, 699 F. 2d at 1055.

Assuming, arguendo, that it was error for the trial court 

to refuse to admit this evidence, the record does not support a 

finding that such error prejudiced the outcome of Petitioner’s 

trial and deprived him of fundamental fairness. As the Alabama 

Court of Criminal Appeals found, the record shows that the trial 

court admitted evidence that Brune regularly used heroin and 

that he had drug paraphernalia in his car at the time of his 

 15 Defense witness James Steven Heasling is also referred to 

as Steve Hensarling. Tomlin, 909 So. 2d at 264 n.12.

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death. (Doc. 9, att. 7 at 107-08; Doc. 9, att. 6 at 165-69). 

Petitioner argues, however, that he should have been allowed to 

further show that Ricky Brune habitually took drug paraphernalia 

with him when he went to buy drugs, which, Petitioner argues, 

would have proved that Brune was on his way to buy drugs at the 

time of his death and “that Phillip Tomlin was not at the scene 

of the crime.” (Doc. 1 at 21). Petitioner’s argument is 

unavailing. Even if Petitioner had been allowed to introduce 

evidence that Brune was on his way to buy drugs at the time that 

he was murdered, such evidence would not tend to show that 

Petitioner was not present when Ricky Brune and Cheryl Moore 

were shot or that he was not responsible for their deaths. 

Thus, any error by the trial court in refusing to admit evidence 

that Ricky Brune was on his way to buy drugs at the time that he 

was killed was not “material in the sense of a crucial, 

critical, highly significant factor” in the trial did not 

“render[] the entire trial fundamentally unfair.” Shaw, 695 F.

2d at 530; Carrizales, 699 F. 2d at 1055. Therefore, 

Petitioner’s habeas Claim Five fails to state a cognizable 

federal habeas claim.

D. Claim Six.

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57

In Claim Six, Petitioner asserts that his rights under the 

Fifth, Sixth, and Fourteenth Amendments were violated by the

trial court’s admission of Petitioner’s testimony from his first 

trial to the effect that he did not tell the police about his 

alibi because his “lawyers advised [him] not to.” (Doc. 1 at 

24). Petitioner claims that the admission of this testimony

violates Doyle v. Ohio, 426 U.S. 610 (1976). Petitioner 

presented this claim to the Alabama Court of Criminal Appeals on 

direct appeal of his fourth trial, and, in its memorandum 

opinion rejecting Petitioner’s claim, the court stated:

Tomlin argues that the prosecutor violated 

Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 

49 L. Ed. 2d 91 (1976), by questioning him 

about his postarrest silence. FN10 In 

Doyle, the United States Supreme Court held 

that “the use for impeachment purposes of 

petitioners’ silence, at the time of arrest 

and after receiving Miranda warnings, 

violated the Due Process Clause of the 

Fourteenth Amendment.” 426 U.S. at 619, 96 

S. Ct. 2240 (footnote omitted).

[FN10. This testimony was admitted through 

Tomlin’s testimony that was introduced from 

his first trial.]

Tomlin testified that he was not in Alabama 

at the time of the murders but that he was 

in Houston, Texas. He stated that on the 

night of the murders he had gone to several 

nightclubs. The following then occurred:

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58

“Q [Prosecutor]: So there’s not one 

person in this world that could tell us 

where you were on the night of January 

the 1st, except you?

“A: If I was to guess, I probably could 

find somebody, yes, sir.

“Q: You tell me the name of one police 

officer that you’ve told what club you 

were in on January the 2nd?

“A: One policeman, I didn’t tell him 

nothing, my lawyers advised me not to.”

(Emphasis added.) Tomlin argues that the 

emphasized portion of his testimony violated 

Doyle v. Ohio.

In Whitehead v. State, 777 So. 2d 781 (Ala.

Crim. App. 1999), aff’d, 777 So. 2d 854 

(Ala. 2000), cert. denied, 532 U.S. 907, 121 

S. Ct. 1233, 149 L. Ed. 2d 142 (2001), we 

addressed a similar claim. We stated:

“‘In Greer v. Miller, 483 U.S. 756, 107 

S. Ct. 3102, 97 L. Ed. 2d 618 (1987), 

the United States Supreme Court 

“clarified that ‘the holding of Doyle

is that the Due Process Clause bars 

“the use for impeachment purposes” of a 

defendant’s postarrest silence.’”

United States v. Stubbs, 944 F. 2d 828, 

834 (11th Cir. 1991), quoting Greer, 

483 U.S. at 763, 107 S. Ct. at 3108, in 

turn quoting Doyle, 426 U.S. at 619, 96 

S. Ct. at 2245. Furthermore, “while a 

single comment alone may sometimes 

constitute a Doyle violation, the 

Supreme Court’s opinion in Greer makes 

clear that a single mention does not 

automatically suffice to violate 

defendant’s rights when the government 

Case 1:10-cv-00120-CG-B Document 24 Filed 03/08/13 Page 58 of 194
59

does not specifically and expressly 

attempt to use-as was attempted in 

Doyle and Greer-the improper comment to 

impeach the defendant. See Lindgren v. 

Lane, 925 F. 2d 198, 201 (7th Cir.

1991).” Stubbs, 944 F. 2d at 835.

(Emphasis in original.) In Lindgren, 

supra, the United States Court of 

Appeals for the Seventh Circuit found 

as follows: “At trial the prosecutor 

never called attention to the 

petitioner’s silence. The defendant 

simply responded that he didn’t ‘wish 

to say any more’ at the tail end of a 

compound answer to a question by the 

police officer. Consequently, no Doyle

violation occurred.” 925 F. 2d at 201. 

See also Mathenia v. Delo, 975 F. 2d 

444, 452 (8th Cir. 1992), cert. denied, 

507 U.S. 995, 113 S. Ct. 1609, 123 L.

Ed. 2d 170 (1993) (testimony by officer 

that defendant did not make a statement 

to him at the time of his arrest not a 

comment on defendant’s post-arrest 

silence because the testimony was 

“‘merely preliminary to the admission 

into evidence of [Mathenia’s] 

videotaped statement’”); Rowan v. 

Owens, 752 F. 2d 1186, 1190 (7th Cir.

1984), cert. denied, 476 U.S. 1140, 106 

S. Ct. 2245, 90 L. Ed. 2d 691 (1986) 

(testimony by officers that defendant 

stated “he didn’t want to say anything 

else” at conclusion of interrogation 

not a comment on defendant’s postarrest silence because it simply 

indicated the end of the interrogation 

and the testimony was not emphasized so 

“as to invite the jury to infer that 

[the defendant] had decided to ‘clam 

up’ after realizing he was 

incriminating himself”).

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“‘Our review of the record reveals that 

the comment by Officer Wilkinson to 

which the appellant objects was never 

mentioned or alluded to again at trial 

by the prosecutor. The statement was 

not specifically elicited by the 

prosecutor and appears to be nothing 

more than part of Officer Wilkinson’s 

narrative of the events leading to the 

making of the appellant’s third taped 

statement. Clearly, the comment did 

not constitute an improper comment on 

the appellant’s post-arrest silence for 

purposes of Doyle.’”

777 So. 2d at 823, quoting Wilkerson v. 

State, 686 So. 2d 1266, 1272-73 (Ala. Crim.

App. 1996).

Tomlin argues in his brief to this Court 

that “the prosecutor specifically asked Mr. 

Tomlin why he had not given this alibi to 

the police after he was arrested.” However, 

our review of the questioning shows that 

this statement is not supported by the 

record. Here, as in Whitehead, the 

statement volunteered by Tomlin was not 

specifically elicited by the prosecutor. 

Neither was any undue emphasis placed on 

Tomlin’s answer. In fact, defense counsel 

mentioned Tomlin’s silence in his opening 

statement. The following occurred:

“You’re going to hear one other thing, 

ladies and gentlemen, and you’re gonna 

hear-hear about reading testimony, and 

you’re gonna hear in this case that 

when Phillip Tomlin was asked, not long 

after all of this happened if he had 

anything to do with it. He did the 

same thing that the President of the 

United States did when he was asked in 

that depositionCase 1:10-cv-00120-CG-B Document 24 Filed 03/08/13 Page 60 of 194
61

“....

“The evidence will be that he didn’t 

tell the truth about where he was, that 

he said he was in Houston, said he was 

stuck in the mud out there, he said Ron 

Daniels came and got him out of the mud 

and that’s not true, ladies and 

gentlemen. In fact, what you’ll find 

is that everybody that had anything to 

do with this case didn’t want to admit 

that they had any part of it.”

There was no Doyle violation here.

Moreover, given defense counsel’s argument 

in opening, any conceivable error that may 

have occurred was harmless. See Harris v. 

State, 611 So. 2d 1159 (Ala. Crim. App.

1992).

Tomlin, 909 So. 2d at 260-61 (emphasis in original). 

As the Alabama Court of Criminal Appeals discussed, the 

State in Doyle sought to use the petitioner’s post-arrest 

silence for the express purpose of impeaching the exculpatory 

story that he told at trial. The Supreme Court held that: 

“[a]fter an arrested person is formally advised by an officer of 

the law that he has a right to remain silent, the unfairness 

occurs when the prosecution, in the presence of the jury, is 

allowed to undertake impeachment on the basis of what may be the 

exercise of that right.” Doyle, 426 U.S. at 619. 

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62

Having reviewed the record in this matter, the Court agrees 

with the Alabama Court of Criminal Appeals, for the precise 

reasons stated in its memorandum opinion, that Petitioner’s 

constitutional rights were not violated by the trial court’s 

admission of Petitioner’s testimony in this case that he did not 

talk to the police about his alibi because his lawyers advised 

him not to do so. As the Alabama Court of Criminal Appeals 

found, Petitioner testified at his first trial that he had been 

in several bars in Houston, Texas, on the night of the murders

of Ricky Brune and Cheryl Moore in Mobile, Alabama. The 

prosecutor in that trial challenged Petitioner’s story by asking 

him whether he had attempted to locate any witnesses at any of 

the bars who might have remembered him, whether he had sent his 

wife to try to locate any such witness, or whether he had even 

told the police that he was at a bar in Houston at the time of 

the murders. (Doc. 9, at 7 at 53-55, 61-62). Petitioner 

responded that he had made no attempt to locate any witnesses at 

any of the bars he claimed to have patronized on the night of 

the murders, nor had he told the police about his alibi because 

his “lawyers advised [him] not to.” (Id.). During that same 

line of questioning, Petitioner retracted his statement and 

insisted that he “probably” did tell the police that he was not 

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63

in Mobile on the day of the murders and that he had been in a 

couple of nightclubs in Houston when the murders occurred. (Id.

at 63-64). Under the circumstances of this case, there is no 

Doyle violation. 

Accordingly, the Court finds that the decision of the 

Alabama Court of Criminal Appeals was a reasonable determination 

of the facts in light of the evidence presented, See 28 U.S.C. 

§ 2254(d)(2), and that the Alabama Court of Criminal Appeals 

rendered a decision that is neither contrary to, nor an 

unreasonable application of, clearly established federal law. 

See 28 U.S.C. § 2254(d)(1). Therefore, Petitioner’s claim that 

his constitutional rights were violated, as alleged in habeas 

Claim Six, is without merit. 

E. Claims Seven through Ten. 

Claims Seven through Ten relate to alleged errors by the 

trial court in refusing to grant Petitioner’s requests to remove 

certain prospective jurors for cause. Petitioner complains 

that, in each instance, he was forced to exercise one of his 

peremptory strikes to remove the challenged juror. 

In Claim Seven, Petitioner asserts that his rights under 

the Fifth, Sixth, and Fourteenth Amendments were violated by the 

trial court’s failure to remove prospective juror “B.L.” for 

Case 1:10-cv-00120-CG-B Document 24 Filed 03/08/13 Page 63 of 194
64

cause after she stated that one of the witnesses for the 

prosecution had been her ex-husband’s partner in the Prichard 

Police Department thirty years earlier. (Doc. 1 at 25). 

Petitioner claims that, because he was required to use one of 

his peremptory strikes to remove juror “B.L.,” he was denied 

“the full exercise of his peremptory strikes.” (Id.). 

Petitioner presented this claim to the Alabama Court of Criminal 

Appeals on direct appeal of his fourth trial, and, in its 

memorandum opinion rejecting Petitioner’s claim, the court 

stated:

Tomlin argues that the trial court erred in 

failing to grant his motion to remove 

prospective juror B.L. for cause. 

Specifically, he argues that B.L. was 

married to a Prichard police officer who was 

the former partner of Capt. Bud Henton, a 

witness for the State. He contends that we 

should presume bias based on this juror’s 

connection to Capt. Henton. Tomlin cites Ex 

parte Tucker, 454 So. 2d 552 (Ala. 1984), in 

support of this argument.

Initially, we note that the record reflects 

that B.L. stated during voir dire that she 

was the ex-wife of a retired police captain 

in the Prichard Police Department. The 

following occurred during the voir dire of 

B.L.:

“[Defense counsel]: Would you mind 

telling us just how well did you know 

him [Capt. Henton], how long did you 

know him?

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65

“[B.L.]: Well, I haven’t Seen him in 

over 30 years.

“[Defense counsel]: Okay.

“[B.L.]: So, maybe, 40 years-

“[Defense counsel]: Okay.

“[B.L.]:-but at one time, I think, Bud 

was the-my husband-ex-husband’s 

partner.

“[Defense counsel]: Oh, he was?

“[B.L.]: So I used to see him quite 

often.

“[Defense counsel]: Okay. And was your 

ex-husband-then he was an officer with 

the Prichard Police Department.

“[B.L.]: Yes, he retired as captain 

with the Prichard Police Department. 

Most of the people would have known 

him.

“[Defense counsel]: Okay. And so the-

“[B.L.]: Rufus Harbin was his brother 

and he was a captain with the County 

and Joe Harbin was the lieutenant with 

the City of Prichard.

“[Defense counsel]: Do you think if 

these folks that you know so well were 

testifying-not all of these folks, but 

just Mr.-I guess the only one that 

would testify would be Mr. Henton-that 

since you know him and have a 

relationship with him outside of court, 

do you think that would-you mightCase 1:10-cv-00120-CG-B Document 24 Filed 03/08/13 Page 65 of 194
66

“[B.L.]: No, I haven’t Seen Bud in 

years so-

“[Defense counsel]: And you think the 

passage of these 30 years, everything 

would be fine?

“[B.L.]: Yes.

“[Defense counsel]: And you could treat 

him just like any other witness, not 

give any more credibility, not any less 

credibility?

“[B.L.]: Right.

“[Defense counsel]: Thank you, ma’am.”

In order to successfully challenge a 

prospective juror for cause, the basis for 

the challenge must be a statutory ground 

under § 12-16-150, Ala. Code 1975, or a 

matter that imports absolute bias and leaves 

nothing to the discretion of the trial 

court. See Dorsey, supra.

In Ex parte Tucker, supra, the case cited by 

Tomlin in his brief to this Court, the 

Alabama Supreme Court reversed the 

conviction because of prosecutorial 

misconduct. The Court then stated:

“On a second point, we note that during 

the qualification of the venire, it was 

discovered that a potential venireman 

... was the brother of a witness for 

the State. Counsel for petitioner 

challenged the venireman for cause, 

stating, ‘He is the brother of perhaps 

the most material witness in the entire 

case.’ The trial judge denied the 

challenge. To do so was reversible 

Case 1:10-cv-00120-CG-B Document 24 Filed 03/08/13 Page 66 of 194
67

error. Nobis v. State, 401 So. 2d 191 

(Ala. Crim. App.), cert. denied, 401 

So. 2d 204 (Ala. 1981).”

Tucker, 454 So. 2d at 553. The above quote 

is the extent of the Court’s discussion on 

this issue in Tucker. Clearly, the 

situation presented in this case did not 

rise to the level denounced in Tucker.

Here, B.L. was the ex-wife of a former 

Prichard police captain who had been the 

former partner of a State’s witness. B.L. 

was not related by blood or marriage to a 

State’s witness. B.L. also said that she 

had not Seen the witness in over 30 years. 

Moreover, B.L. stated that her former 

association with Henton would not effect her 

ability to be impartial.

Tomlin further argues that we should presume 

bias based on B.L.’s former relationship and 

that we should find the circumstances 

sufficient to amount to a common-law reason 

to remove B.L. for cause.

In addition to the statutory grounds for 

removing a juror for cause contained in § 

12-16-150, [FN4] Alabama courts have also 

recognized that there may still be a commonlaw basis for removing a juror for cause. 

See Hutchins v. DCH Reg’l Med. Ctr., 770 So.

2d 49 (Ala. 2000); CSX Transp., Inc. v. 

Dansby, 659 So. 2d 35 (Ala. 1995). In 

Beasley v. State, 39 Ala. App. 182, 96 So.

2d 693 (1957), the court discussed the 

common-law grounds for a challenge for cause 

and stated:

 [FN4. Section 12-16-150 states, in 

pertinent part:

 “It is good ground for challenge of 

a juror by either party:

Case 1:10-cv-00120-CG-B Document 24 Filed 03/08/13 Page 67 of 194
68

 “(1) That the person has not been a 

resident householder or freeholder of 

the county for the last preceding six 

months.

 “(2) That he is not a citizen of 

Alabama.

 “(3) That he has been indicted 

within the last 12 months for felony or 

an offense of the same character as 

that with which the defendant is 

charged.

 “(4) That he is connected by 

consanguinity within the ninth degree, 

or by affinity within the fifth degree, 

computed according to the rules of the 

civil law, either with the defendant or 

with the prosecutor or the person 

alleged to be injured.

 “(5) That he has been convicted of 

a felony.

 “(6) That he has an interest in the 

conviction or acquittal of the 

defendant or has made any promise or 

given any assurance that he will 

convict or acquit the defendant.

 “(7) That he has a fixed opinion as 

to the guilt or innocence of the 

defendant which would bias his verdict.

 “(8) That he is under 19 years of 

age.

 “(9) That he is of unsound mind.

 “(10) That he is a witness for the 

other party.”]

. . . The common-law grounds as far as 

applicable to our system and not changed by 

statute remain for our guidance. Our 

statute has added certain grounds of 

challenge for cause, but they are not 

exclusive of the common law remaining 

unchanged. ...’ ... See also dictum in 

Wyatt v. State, 36 Ala. App. 125, 57 So. 2d 

350.”

Case 1:10-cv-00120-CG-B Document 24 Filed 03/08/13 Page 68 of 194
69

39 Ala. App. at 185, 96 So. 2d at 696, 

quoting Brown v. Woolverton, 219 Ala. 112, 

121 So. 404, 406 (1928) (Emphasis in 

original.)

“[W]here a common law ground is 

involved, there must either be some 

matter which imports absolute bias or 

favor and leaves nothing for the 

discretion of the court or a situation 

which presents a mixed question of law 

and fact to be determined by the trial 

court in its sound discretion.”

Mullis v. State, 258 Ala. 309, 312, 62 So.

2d 451, 453 (1952).

“‘A challenge for favor or bias is to 

be determined by the trial court as any 

other question of fact, tried without a 

jury, and is reviewable on like 

principles. 35 Corpus Juris, 312, 403, 

404; 16 R.C.L. 279, 282, 288; Calhoun 

v. Hannan, 87 Ala. 277, 6 So. 291 

[(1889)]; Larkin v. Baty, 111 Ala. 303, 

307, 18 So. 666 [(1895)]. The decision 

of the trial court on such question 

founded on oral evidence is entitled to 

great weight and will not be interfered 

with unless clearly erroneous, 

equivalent to an abuse of discretion.

35 Corpus Juris, 404, 405; 16 R.C.L. 

289.’”

Felton v. State, 46 Ala. App. 579, 584, 246 

So. 2d 467, 471 (Crim. 1971), quoting Brown 

v. Woolverton, 121 So. at 406.

“‘Our Supreme Court has held that “[n]o 

right of an accused felon is more basic 

than the right to ‘strike’ a petit 

[jury] from a panel of fair-minded, 

impartial prospective jurors.” Ex 

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70

parte Beam, 512 So. 2d 723, 724 (Ala.

1987). The propriety of a trial 

court’s ruling in the challenge of a 

venireperson for cause based on bias 

must be measured against a defendant’s 

constitutional right to a fair trial. 

Ex parte Beam, U.S. Const. Amends. VI, 

XIV. The qualification of a 

prospective juror is a matter within 

the discretion of the trial court, and 

a trial court’s ruling on a challenge 

for cause based on bias is entitled to 

great weight and will not be disturbed 

on appeal unless there is a clear 

showing of abuse of that discretion. 

Ex parte Rutledge, 523 So. 2d 1118 

(Ala. 1988). An appellate court must 

look to the questions propounded to, 

and the answers given by, the 

prospective juror to see if this 

discretion was properly exercised. 

Knop v. [ McCain], 561 So. 2d 229 (Ala.

1989). “Ultimately, the test to be 

applied is whether the juror can set 

aside [his or] her opinions and try the 

case fairly and impartially, according 

to the law and the evidence.” Id. at 

232. “[A] prospective juror should not 

be disqualified for prejudices or 

biases if it appears from his or her 

answers and demeanor that the influence 

of those prejudices and biases can be 

eliminated and a verdict rendered 

according to the evidence.” Id. See

also Fordham v. State, 513 So. 2d 31 

(Ala. Cr. App. 1986).’”

England v. State, 601 So. 2d 1108, 1109 

(Ala. Crim. App. 1992), quoting Hunter v. 

State, 585 So. 2d 220, 221-22 (Ala. Crim.

App. 1991).

Case 1:10-cv-00120-CG-B Document 24 Filed 03/08/13 Page 70 of 194
71

B.L.’s answers to the voir dire questions 

clearly indicated that she was not so biased 

that the trial court had no discretion but 

to grant a challenge for cause. Therefore, 

there was also no common-law reason to 

remove B.L. for cause.

Moreover, B.L. was removed by the defense’s 

use of one of its peremptory strikes. The 

United States Supreme Court in United States 

v. Martinez-Salazar, 528 U.S. 304, 120 S.

Ct. 774, 145 L. Ed. 2d 792 (2000), held that 

as long as the selected jury was impartial 

there was no prejudicial error when a trial 

court failed to remove a juror for cause who 

was subsequently removed by the defense 

using a peremptory challenge. The MartinezSalazar Court stated:

“In choosing to remove Gilbert rather 

than taking his chances on appeal, 

Martinez-Salazar did not lose a 

peremptory challenge. Rather, he used 

the challenge in line with a principal 

reason for peremptories: to help secure 

the constitutional guarantee of trial 

by an impartial jury. See, e.g., 

J.E.B. [ v. Alabama ex rel. T.B.], 511 

U.S. [127], at 137, n. 8 [(1994)] 

(purpose of peremptory challenges ‘“is 

to permit litigants to assist the 

government in the selection of an 

impartial trier of fact”’) (quoting 

Edmonson v. Leesville Concrete Co., 500 

U.S. 614, 620 (1991)); Georgia v. 

McCollum, 505 U.S. 42, 57 (1992) 

(peremptory challenges are ‘one statecreated means to the constitutional end 

of an impartial jury and a fair 

trial’); Frazier v. United States, 335 

U.S. 497, 505 (1948) (‘the right [to 

peremptory challenges] is given in aid 

of the party’s interest to secure a 

Case 1:10-cv-00120-CG-B Document 24 Filed 03/08/13 Page 71 of 194
72

fair and impartial jury’). Moreover, 

the immediate choice Martinez-Salazar 

confronted-to stand on his objection to 

the erroneous denial of the challenge 

for cause or to use a peremptory 

challenge to effect an instantaneous 

cure of the error-comports with the 

reality of the jury selection process. 

Challenges for cause and rulings upon 

them, as Judge Rymer observed, See

supra, at 310, are fast paced, made on 

the spot and under pressure. Counsel 

as well as court, in that setting, must 

be prepared to decide, often between 

shades of gray, ‘by the minute.’ [ 

United States v. Martinez-Salazar,] 146 

F. 3d [653] at 661 [(9th Cir. 1998)].

“....

“We answer today the question left open 

in Ross [v. Oklahoma, 487 U.S. 81 

(1988)] and hold that a defendant’s 

exercise of peremptory challenges 

pursuant to Rule 24(b) is not denied or 

impaired when the defendant chooses to 

use a peremptory challenge to remove a 

juror who should have been excused for 

cause. Martinez-Salazar and his 

codefendant were accorded 11 peremptory 

challenges, the exact number Rule 24(b) 

and (c) allowed in this case. 

Martinez-Salazar received precisely 

what federal law provided; he cannot 

tenably assert any violation of his 

Fifth Amendment right to due process. 

See Ross, 487 U.S., at 91.”

528 U.S. at 315-17, 120 S. Ct. 774. The 

Alabama Supreme Court has relied on the 

United States Supreme Court’s decision in 

Martinez-Salazar to affirm a trial court’s 

erroneous grant of a challenge for cause.

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73

In Evans v. State, 794 So. 2d 411, 414 (Ala.

2000), the Alabama Supreme Court stated:

“Evans argues that the trial court’s 

error in excusing E.F.W. violated his 

right to a trial by an impartial jury, 

a right guaranteed by Amendments 6 and 

14 of the United States Constitution 

and § 6 of the Alabama Constitution. 

However, the United States Supreme 

Court has held that a defendant’s 

federal right to an impartial jury was 

not automatically violated merely by an 

erroneous ruling on a challenge for 

cause. Ross v. Oklahoma, 487 U.S. 81, 

87-88, 108 S. Ct. 2273, 101 L. Ed. 2d 

80 (1988); see also United States v. 

Martinez-Salazar, 528 U.S. 304, 120 S.

Ct. 774, 145 L. Ed. 2d 792 (2000). As 

long as the jury that heard the case 

was impartial, the right guaranteed by 

the United States Constitution was not 

violated. See Ross, 487 U.S. at 87-88, 

108 S. Ct. 2273. This rule would also 

apply to § 6 of the Alabama 

Constitution, which gives the defendant 

the right to a trial ‘by an impartial 

jury of the county or district in which 

the offense was committed.’ The plain 

meaning of this language is that the 

defendant is entitled only to an 

impartial jury and that unless the 

defendant can show that a trial court’s 

erroneous ruling during jury selection 

prevented the jury from being 

impartial, there is no violation of § 

6.

“Evans has made no showing that his 

rights, such as his right to an 

impartial jury, were probably 

injuriously affected by the trial 

court’s excusing E.F.W. Therefore, we 

Case 1:10-cv-00120-CG-B Document 24 Filed 03/08/13 Page 73 of 194
74

conclude that the trial court’s error 

in excusing E.F.W. was not reversible, 

because, even with the error, Evans 

still had a fair trial with an 

impartial jury.”

The Supreme Court found that any error in 

the trial court’s erroneous removal of a 

juror for cause was harmless because the 

defendant did not show that the empaneled 

jury was not impartial. This Court, citing 

Martinez-Salazar, has likewise found 

harmless error. See Ray v. State, 809 So.

2d 875, 886 (Ala. Crim. App. 2001), cert. 

denied, 809 So. 2d 891 (Ala. 2001), cert. 

denied, 534 U.S. 1142, 122 S. Ct. 1096, 151 

L. Ed. 2d 993 (2002) (“In United States v. 

Martinez-Salazar, 528 U.S. 304, 120 S. Ct. 

774, 145 L. Ed. 2d 792 (2000), the defendant 

used a peremptory challenge to cure the 

trial court’s erroneous denial of a 

challenge for cause. The United States 

Supreme Court held that the defendant’s 

right to exercise his peremptory challenges 

was not denied or impaired when he chose to 

use a peremptory challenge to remove a juror 

who should have been challenged for 

cause.”); Smith v. State, 908 So. 2d 273 

(Ala. Crim. App. 2000) (“[A]ny possible 

error was harmless based on the United 

States Supreme Court’s recent holding in 

United States v. Martinez-Salazar, 528 U.S. 

304, 120 S. Ct. 774, 145 L. Ed. 2d 792 

(2000).”).

Therefore, if any error did occur, it was 

harmless. See Ray v. State, supra; Smith v. 

State, supra.

Tomlin, 909 So. 2d at 234-38 (footnote three omitted). 

Case 1:10-cv-00120-CG-B Document 24 Filed 03/08/13 Page 74 of 194
75

Having reviewed the record in this matter, the Court agrees 

with the Alabama Court of Criminal Appeals, for each of the 

reasons stated in its memorandum opinion, that Petitioner’s 

constitutional rights were not violated by the trial court’s 

refusal to strike prospective juror, “B.L.,” for cause. 

Moreover, as the Alabama Court of Criminal Appeals found, 

Petitioner used one of his peremptory strikes to remove juror 

“B.L.”16 (Doc. 9, att. 5 at 63). Thus, even assuming, arguendo, 

that the trial court erred in refusing to remove this juror for 

cause because her ex-husband had been the former police partner 

of one of the witnesses over thirty years earlier (Doc. 9, att. 

4 at 12), Petitioner was not deprived of a constitutional right 

thereby. See United States v. Martinez-Salazar, 528 U.S. 304, 

307 (2000) (“We hold, however, that if the defendant elects to 

cure such an error by exercising a peremptory challenge, and is 

subsequently convicted by a jury on which no biased juror sat, 

he has not been deprived of any rule-based or constitutional 

right.”); accord Ross v. Oklahoma, 487 U.S. 81, 88 (1988) 

(“peremptory challenges are not of constitutional dimension. . . 

 16 “B.L.” is identified in the record as juror number one. 

(Doc. 9, att. 5 at 63).

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. They are a means to achieve the end of an impartial jury. So 

long as the jury that sits is impartial, the fact that the 

defendant had to use a peremptory challenge to achieve that 

result does not mean the Sixth Amendment was violated.”). 

Similarly, in Claims Eight and Nine, Petitioner asserts 

that his rights under the Fifth, Sixth, and Fourteenth 

Amendments were violated by the trial court’s failure to remove 

prospective juror “P.J.” for cause after she cried during voir 

dire and stated that the evidence to be presented at trial would 

bring back memories of her mother-in-law’s suicide (Claim Eight) 

and by the trial court’s denial of Petitioner’s request to ask 

further questions of prospective juror “P.J.” (Claim Nine). 

(Doc. 1 at 26-27). As with Claim Seven, Petitioner claims that, 

because he was required to use one of his peremptory strikes to 

remove juror “P.J.,” he was denied “the full exercise of his 

peremptory strikes.” (Id.). 

Petitioner presented these claims to the Alabama Court of 

Criminal Appeals on direct appeal of his fourth trial, and, in 

its memorandum opinion rejecting Petitioner’s claims, the court 

stated:

Tomlin argues that the trial court erred in 

failing to grant his challenge for cause of 

prospective juror P.J. He contends that 

Case 1:10-cv-00120-CG-B Document 24 Filed 03/08/13 Page 76 of 194
77

this juror cried during voir dire after she 

indicated that she had found her mother-inlaws’s body after the mother-in-law had 

committed suicide, that P.J. admitted that 

she suffers from anxiety attacks, and that 

P.J. admitted that the photographs of the 

victims’ bodies might trigger an anxiety 

attack. Tomlin argues that P.J. should have 

been struck for cause “because she could not 

be neutral, objective, or impartial.”

The following occurred during the voir dire 

examination of P.J.:

“The Court: Okay. [P.J.] I think you 

wanted to make a statement out of the 

presence of the other jurors.

“[P.J.]: Well, I just may get upset, 

because when you mentioned the 

evidence, pictures and things, and I 

didn’t put it on my sheet and I 

apologize, I honestly didn’t think 

about it, but my mother-in-law was 

dying of cancer and she committed 

suicide and I happened to find her and 

just-

“The Court: Okay, ma’am, I’m sorry and 

I understand that would bother you, but 

if you were selected as a juror, 

understanding that would bother you, 

but you could still decide the evidence 

based upon what’s presented to you from 

the testimony and the law that I 

instruct you?

“[P.J.]: And I may cry.

“The Court: I understand. I understand 

that. We can’t stop that.

“[P.J.]: I don’t like guns.

Case 1:10-cv-00120-CG-B Document 24 Filed 03/08/13 Page 77 of 194
78

“The Court: Yes, ma’am, I appreciate 

your candor. Anything else, Mr. 

Valeska, of [P.J.]?

“[Prosecutor]: No, Your Honor.

“The Court: Mr. Bright?

“[Defense counsel]: [P.J.] you cried a 

little bit when you answered the 

question though, right?

“[P.J.]: (Juror nods.)

“[Defense counsel]: You have to give an 

audible answer, yes or no, for the 

court reporter?

“[P.J.]: Yes.

“[Defense counsel]: And you think you 

may have that same reaction if you saw

the pictures and so forth, that we 

talked about earlier?

“[P.J.]: I’d probably be all right, but 

I have these little anxiety attacks.

“[Defense counsel]: Well, do you think 

it might interfere with your ability to 

fairly consider the case?

“[P.J.]: No.

“[Defense counsel]: Well, do you think 

that you could put it aside and listen 

to all of the evidence-

“The Court: She’s answered the 

question-just a moment, she’s answered 

the question. Thank you, [P.J.].” 

[FN5]

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79

 [FN5. Tomlin also argues that the trial 

court erred in restricting his questioning 

of this juror. However, the record reflects 

that the trial court did not restrict 

Tomlin’s questioning, but merely would not 

allow him to ask a question that he had 

already asked of the juror-a question that 

this juror had previously answered on two 

separate occasions.]

Tomlin argues that we should presume bias 

based on the above dialogue with P.J. He 

cites Rideau v. Louisiana, 373 U.S. 723, 83 

S. Ct. 1417, 10 L. Ed. 2d 663 (1963), and 

Turner v. Louisiana, 379 U.S. 466, 85 S. Ct. 

546, 13 L. Ed. 2d 424 (1965), in support of 

his contention.

In Rideau, the United States Supreme Court 

reversed the appellant’s conviction based on 

the trial court’s failure to grant a motion 

for a change of venue. The record showed 

that after Rideau was arrested he confessed 

to the local sheriff, and the confession was 

videotaped and audiotaped. The tape was 

broadcast on local television stations three 

times before Rideau’s trial. The Supreme 

Court found that Rideau’s right to an

impartial trial was violated.

In Turner, the United States Supreme Court 

granted Turner a new trial after two 

deputies who were key witnesses in the case 

and who were also in charge of the 

sequestered jurors had outside contact with 

the jurors. Neither case is similar to the 

situation presented in this case.

Prospective juror P.J. indicated that she 

could impartially try the case. The trial 

court committed no error in failing to 

remove this juror for cause.

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80

Moreover, this juror was removed by the 

defense’s use of one of its peremptory 

strikes.

Tomlin, 909 So. 2d at 238-40.

Having reviewed the record in this matter, the Court agrees 

with the Alabama Court of Criminal Appeals, for each of the 

reasons stated in its memorandum opinion, that Petitioner’s 

constitutional rights were not violated by the trial court’s 

refusal to strike prospective juror, “P.J.,” for cause or by the 

trial court’s denial of Petitioner’s request to ask her further 

questions. Moreover, as the Alabama Court of Criminal Appeals 

found, Petitioner removed juror “P.J.” from the jury by 

exercising one of his peremptory strikes.17 (Doc. 9, att. 5 at 

63). Thus, for the same reasons discussed above with respect to 

Claim Seven, even assuming, arguendo, that the trial court erred 

in refusing to remove juror “P.J.” after she expressed anxiety 

about viewing some of the evidence to be presented at trial 

(Doc. 9, att. 4 at 123-24) or in denying Petitioner’s request to 

ask “P.J.” further questions, Petitioner was not deprived of a 

 17 “P.J.” is identified in the record as juror number fortythree. (Doc. 9, att. 5 at 63). 

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81

constitutional right thereby. See Martinez-Salazar, 528 U.S. at 

307; Ross, 487 U.S. at 88.

Likewise, in Claim Ten, Petitioner asserts that his rights 

under the Sixth and Fourteenth Amendments were violated by the 

trial court’s failure to strike prospective jurors “S.B.,” 

“L.R.,” and “G.R.” after they admitted having heard or read 

about the case. (Doc. 1 at 28). As with Claims Seven through 

Nine, Petitioner claims that, because he was required to use his 

peremptory strikes to remove these prospective jurors, he was 

denied “the full exercise of his peremptory strikes.” (Id.). 

Petitioner presented this claim to the Alabama Court of 

Criminal Appeals on direct appeal of his fourth trial, and, in 

its memorandum opinion rejecting Petitioner’s claim, the court 

stated:

Tomlin argues that the trial court erred in 

failing to remove three prospective jurors 

who were not impartial, he argues, because 

they indicated that they had heard or read 

about the case. He contends that this is 

sufficient to establish a common-law basis 

to strike these jurors.

However, neither this Court nor the United 

States Supreme Court has ever required 

jurors to be totally ignorant about the 

facts and circumstances of a case. As the 

United States Supreme Court stated in Irvin 

v. Dowd, 366 U.S. 717, 722-23, 81 S. Ct. 

1639, 6 L. Ed. 2d 751 (1961):

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82

“It is not required, however, that the 

jurors be totally ignorant of the facts 

and issues involved. In these days of 

swift, widespread and diverse methods 

of communication, an important case can 

be expected to arouse the interest of 

the public in the vicinity, and 

scarcely any of those best qualified to 

serve as jurors will not have formed 

some impression or opinion as to the 

merits of the case. This is 

particularly true in criminal cases. 

To hold that the mere existence of any 

preconceived notion as to the guilt or 

innocence of an accused, without more, 

is sufficient to rebut the presumption 

of a prospective juror’s impartiality 

would be to establish an impossible 

standard. It is sufficient if the 

juror can lay aside his impression or 

opinion and render a verdict based on 

the evidence presented in court. Spies 

v. Illinois, 123 U.S. 131 [(1887)]; 

Holt v. United States, 218 U.S. 245 

[(1910)] Reynolds v. United States, [98 

U.S. 145 (1878)].

“The adoption of such a rule, however, 

‘cannot foreclose inquiry as to 

whether, in a given case, the 

application of that rule works a 

deprivation of the prisoner’s life or 

liberty without due process of law.’ 

Lisenba v. California, 314 U.S. 219 

[(1941)]. As stated in Reynolds, the 

test is ‘whether the nature and 

strength of the opinion formed are such 

as in law necessarily ... raise the 

presumption of partiality. The 

question thus presented is one of mixed 

law and fact....’ At page 156 [of 98 

U.S.]. ‘The affirmative of the issue 

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83

is upon the challenger. Unless he 

shows the actual existence of such an 

opinion in the mind of the juror as 

will raise the presumption of 

partiality, the juror need not 

necessarily be set aside....’”

Specifically, Tomlin challenges the trial 

court’s failure to remove prospective jurors 

S.B., L.R., and G.R. for cause because they 

answered that they had heard or read about 

the case. A review of the record reflects 

that S.B. stated that she had read about the 

case but that she could not remember any 

particulars. L.R. stated that he had read 

in the newspaper in the 1970s that several 

people had been found dead in or near a car. 

G.R. stated that he did not remember the 

details of the case because it happened when 

he was a teenager but that he did remember 

that it had happened. All stated that any 

knowledge that they had about the case would 

not effect their ability to render an 

impartial verdict.

Clearly, the vague comments of the three 

questioned jurors were not sufficient to 

grant a challenge for cause. As stated in 

Irvin v. Dowd, supra, we have never held 

that a juror must be totally ignorant about 

a case before he/she is eligible to sit on a 

jury.

Tomlin, 909 So. 2d at 240-41.

Having reviewed the record in this matter, the Court agrees 

with the Alabama Court of Criminal Appeals, for each of the 

reasons stated in its memorandum opinion, that Petitioner’s 

constitutional rights were not violated by the trial court’s 

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84

refusal to strike prospective jurors “S.B.,” “L.R.,” and “G.R.” 

for cause. Moreover, as the Alabama Court of Criminal Appeals 

found, Petitioner removed these jurors from the jury by 

exercising his peremptory strikes.18 (Doc. 9, att. 5 at 64-68). 

Thus, as discussed above with respect to Claims Seven through 

Nine, even assuming, arguendo, that the trial court erred in 

refusing to remove these jurors for cause based on the fact that 

they had heard or read about the case (Doc. 9, att. 4 at 17, 72, 

117), Petitioner was not deprived of a constitutional right 

thereby. See Martinez-Salazar, 528 U.S. at 307; Ross, 487 U.S. 

at 88.

Accordingly, the Court finds that the decisions of the 

Alabama Court of Criminal Appeals with respect to Claims Seven 

through Ten were a reasonable determination of the facts in 

light of the evidence presented, See 28 U.S.C. § 2254(d)(2), and 

that the Alabama Court of Criminal Appeals rendered decisions

that were neither contrary to, nor an unreasonable application 

of, clearly established federal law. See 28 U.S.C. 

 18 “S.B.” is identified in the record as juror number six 

(Doc. 9, att. 5 at 67); “L.R.” is identified as juror number 

twenty-three (Doc. 9, att. 5 at 68); and “G.R.” is identified as 

juror number thirty-five (Doc. 9, att. 5 at 64). 

Case 1:10-cv-00120-CG-B Document 24 Filed 03/08/13 Page 84 of 194
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§ 2254(d)(1). Therefore, Petitioner’s claims that his 

constitutional rights were violated, as alleged in habeas Claims

Seven through Ten, are without merit. 

F. Claim Eleven.

In Claim Eleven, Petitioner asserts that the trial court 

allowing the State’s expert, James Small, to testify outside of 

his area of expertise, violated his rights under the Sixth and 

Fourteenth Amendments. (Doc. 1 at 29). Petitioner concedes 

that Small was qualified to testify in the field of toxicology; 

however, Petitioner maintains that he was not qualified to 

testify in the areas of ballistics, pathology, or fingerprints.19 

 19 Petitioner’s claim that Small was unqualified to render 

an expert opinion on fingerprinting does not appear to have been 

raised in the state court and is, therefore, unexhausted and 

procedurally defaulted. See O’Sullivan v. Boerckel, 526 U.S. 

838, 848 (1999) (A state prisoner’s failure to present his 

claims to the state courts in the proper manner results in a 

procedural default of those claims); Bailey v. Nagle, 172 F. 3d 

1299, 1302, 1306 (11th Cir. 1999) (“A state habeas corpus 

petitioner who fails to raise his federal claims properly in 

state court is procedurally barred from pursuing the same claim 

in federal court absent a showing of cause for and actual 

prejudice from the default” or “actual innocence.”). Because 

Petitioner does not allege cause and prejudice for the default, 

nor is there evidence of “actual innocence,” the claim is 

procedurally barred in federal court. In any event, even if not 

procedurally barred, the admission of this testimony was not 

“material in the sense of a crucial, critical, highly 

significant factor,” Shaw, 695 F. 2d at 530, and did not render 

(Continued)

Case 1:10-cv-00120-CG-B Document 24 Filed 03/08/13 Page 85 of 194
86

(Id.). Petitioner presented this claim to the Alabama Court of 

Criminal Appeals on direct appeal of his fourth trial, and, in 

its memorandum opinion rejecting Petitioner’s claim, the court 

stated:

Tomlin argues that the trial court erred in 

allowing James L. Small, a former 

toxicologist with the Alabama Department of 

Forensic Sciences, to be qualified as a 

ballistic expert and a pathologist.

The following occurred when James Small was 

examined:

“Q [Prosecutor]: State your name, 

please, sir, for the ladies and 

gentlemen of the jury and the Court.

“A: My name is James L. Small.

“Q: And, Dr. Small, what do you do?

“A: I am currently employed by the 

Baldwin County District Attorney’s 

Office, working in environmental 

science.

“Q: Prior to that, did you work for the 

Alabama Department of Forensic Sciences 

here in Mobile?

“A: Approximately, 25 years.

 

“the entire trial fundamentally unfair.” Carrizales, 699 F. 2d 

at 1055. Thus, it does not state a cognizable federal claim.

Case 1:10-cv-00120-CG-B Document 24 Filed 03/08/13 Page 86 of 194
87

“Q: And you were the state toxicologist 

here in the old courthouse?

“A: That’s correct, sir.

“Q: And you were such employed in 1977 

and 1978?

“A: That’s correct, sir.

“Q: Would you tell the ladies and 

gentlemen of the jury what a 

toxicologist is and does, please, sir?

“A: Well at that time, the toxicologist 

for the State of Alabama was charged 

with investigation of crimes that he 

was called to by law enforcement, 

examination of evidence submitted by 

law enforcement, examination of scenes, 

and examination of bodies that were 

involved in crime.

“Q: And how long had you been doing 

this prior to 1977?

“A: Approximately, 12 years.

“Q: And where did you get your 

education?

“A: I received a bachelor’s degree and 

a master’s degree from Auburn 

University. The master’s degree was in 

toxicology.

“Q: And how many violent deaths and 

evidence had you examined, in your best 

judgment, prior to January 2, 1977?

“A: I had examined approximately 500 

bodies involved with violent deaths, 

prior to that time.

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88

“Q: And did you have any other special 

training in which you otherwise told 

the jury?

“A: In our profession, we regularly 

attend short courses, seminars, and 

training programs that deal with 

specific items or specific types of 

evidence that we are to handle and make 

examinations on.

“[Prosecutor]: Judge, at this time, I’d 

ask for Mr. Small as an expert.

“The Court: Any objections from the 

Defense?

“[Defense Counsel]: Yes. Can I just 

voir dire on the qualifications?

“....

“Q [Defense Counsel]: Okay. Okay. Now, 

and your area of expertise would be 

then, in the area of toxicology is 

poisons; is that correct?

“A: The training-the academic training 

was an area of toxicology. The 

training that we further received as 

part of our employment and part of our 

duties with the State of Alabama, 

involved the conduction of autopsies, 

determining cause of death, collection 

of evidence from bodies, scenes, 

evaluating that evidence, making 

scientific determinations as to what 

the evidence relates to and then 

testifying in court.

“....

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“Q: [Defense Counsel]: Okay. Your 

experience was kind of, would it be 

fair to say, on-the-job and going to 

some seminars from time to time?

“A: Being taught specifically what to 

do on the job and special courses, yes, 

sir.

“....

“A: Well, in particular, with firearms, 

we spent several months in the 

laboratory examining bullets, examining 

items from bullets, and shotgun shells 

and firearms, firing these, making test 

comparisons until the senior examiners 

knew that we could sit down and make a 

comparison of a bullet to a particular 

firearm and get the correct answer.

“[Prosecutor]: Judge, we offer him as 

an expert.

“The Court: Any objections from the 

Defense?

“[Defense Counsel]: I’m sorry, he’s an 

expert in what, Your Honor?

“[Prosecutor]: In toxicology, in 

autopsies, and everything that he just 

testified to.

“[Defense counsel]: I don’t have any 

problem with him testifying-I think 

he’s an expert in toxicology, Your 

Honor. I don’t believe he’s established 

expertise in any other area.

“The Court: Noted for the record, 

overruled. Proceed.”

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90

Tomlin does not question Small’s 

qualifications as a toxicologist. However, 

he contends that Small was not qualified to 

testify about the victims’ causes of death 

nor was he qualified to testify concerning 

ballistic information. We do not agree.

Mr. Small testified that Dr. Edwin Scott, 

who was the coroner for Mobile County at the 

time of the murders, performed the autopsies 

on both victims. Small testified that Scott 

died shortly after he conducted the 

autopsies. Small further testified that he 

was present when the autopsies were 

conducted and, from his testimony, it 

appears that he assisted with the autopsies.

The appellate courts of this state have long 

held that a toxicologist may testify as to 

the cause of death. In Luckie v. State, 55 

Ala. App. 642, 318 So. 2d 337 (Ala. Crim.

App.), cert. denied, 294 Ala. 764, 318 So.

2d 341 (1975), this Court addressed the same 

issue concerning James Small, the same 

toxicologist in this case. This Court 

stated:

“At the conclusion of the testimony 

offered by the State the appellant 

moved to exclude on the grounds that 

the State had not proved the cause of 

death of decedent; that James Small, a 

toxicologist, who testified for the 

State as to the cause of death was not 

properly qualified to give such 

testimony; and that there had been no 

expert testimony to show the cause of 

death.

“The question of the qualifications of 

a person to testify as an expert rests 

largely in the discretion of the trial 

court and will not be disturbed by the 

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91

appellate courts in the absence of 

abuse. See numerous cases collected in 

Alabama Digest, Criminal Law, Volume 6, 

[key cite] 481.

“The case of Richardson v. State, 39 

Ala. App. 207, 98 So. 2d 59, cert. 

denied, 266 Ala. 699, 98 So. 2d 65 

[(1957)], along with many other cases, 

holds that a toxicologist, properly 

qualified, may testify as to the cause 

of death.”

55 Ala. App. at 644-45, 318 So. 2d at 

340. See also Dobbins v. State, 274 

Ala. 524, 149 So. 2d 814 (1963) (a 

state toxicologist was correctly 

allowed to testify that the cause of 

the victim’s death was bullet wounds to 

the head); Johnson v. State, 272 Ala. 

633, 133 So. 2d 53 (1961) (an assistant 

state toxicologist was properly allowed 

to testify that the victim died as a 

result of blunt-force injuries); Smarr 

v. State, 260 Ala. 30, 68 So. 2d 6 

(1953) (a state toxicologist was 

properly allowed to testify that one of 

the victims died as a result of a 

fractured skull); Collins v. State, 250 

Ala. 58, 33 So. 2d 18 (1947) (a 

toxicologist was properly allowed to 

testify that the victim died of a 

bullet wound to skull); Wilson v. 

State, 243 Ala. 1, 8 So. 2d 422 (1942) 

(a toxicologist was properly allowed to 

testify that the victim was poisoned); 

Hall v. State, 49 Ala. App. 695, 275 

So. 2d 374 (1973) (a toxicologist was 

properly allowed to testify that the 

victim’s cause of death was blunt-force 

injuries to the head); Holland v. 

State, 49 Ala. App. 104, 268 So. 2d 883 

(1972) (a toxicologist was properly 

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92

allowed to testify that the victim died 

of gunshot wounds); Richardson v. 

State, 39 Ala. App. 207, 98 So. 2d 59 

(1957), cert. denied, 266 Ala. 699, 98 

So. 2d 65 (1957) (a toxicologist was 

properly allowed to testify that the 

victim died from a bullet wound to the 

chest).

Here, Small was properly qualified to 

testify that in his opinion the victims 

died of multiple gunshot wounds. 

Moreover, we note that the causes of 

death were never contested.

Small was also qualified to testify as 

a ballistic expert. Rule 702, Ala. R.

Evid., states:

“If scientific, technical, or 

other specialized knowledge will 

assist the trier of fact to 

understand the evidence or to

determine a fact in issue, a 

witness qualified as an expert by 

knowledge, skill, experience, 

training, or education, may 

testify thereto in the form of an 

opinion or otherwise.”

Whether a person is qualified to 

testify as an expert is within the 

discretion of the trial court, whose 

ruling will not be disturbed unless 

there is an abuse of that discretion. 

See Bailey v. State, 574 So. 2d 1001, 

1003 (Ala. Crim. App. 1990). 

Challenges to the qualifications of an 

expert go to the weight, not the 

admissibility, of the expert’s 

testimony. See Smoot v. State, 520 So.

2d 182, 189 (Ala. Crim. App. 1987).

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Here, Small testified to his training 

in ballistics. He also testified that 

he had been conducting such 

investigations for 12 years before 

1977-the year of the murders. The 

trial court did not err in allowing 

this witness to testify as a 

pathologist and as a ballistics expert. 

Small was properly qualified as an 

expert in all those fields of 

expertise.

Tomlin, 909 So. 2d at 257-59.

The issue of whether the trial court erroneously admitted 

the expert testimony of James Small involves the interpretation 

and application of state law by state courts. As with the state 

law issues discussed above, in such instances, the claim will be 

reviewed on habeas only to determine whether the alleged state 

trial error was “material in the sense of a crucial, critical, 

highly significant factor,” Shaw, 695 F. 2d at 530, and rendered 

“the entire trial fundamentally unfair.” Carrizales, 699 F. 2d

at 1055.

Having reviewed the record, the Court agrees with the 

Alabama Court of Criminal Appeals, for the reasons stated in its 

memorandum opinion, that Petitioner has failed to show that the 

trial court erred in allowing the State’s witness, James Small,

to testify as an expert in the areas of pathology and 

ballistics. The record supports the state court’s findings 

Case 1:10-cv-00120-CG-B Document 24 Filed 03/08/13 Page 93 of 194
94

related to Small’s experience and training in these areas. 

Moreover, as the Alabama Court of Criminal Appeals found, the 

cause of death of the victims from multiple gunshot wounds was 

never contested at trial. Furthermore, Petitioner’s own 

attorney elicited Small’s opinion on issues of ballistics. 

(Doc. 9, att. 6 at 161-62, 169). Having failed to show that the 

trial court erred in allowing Small’s expert testimony in the 

areas of pathology and ballistics, as alleged in habeas Claim 

Eleven, and that the error rendered his entire trial 

fundamentally unfair, Petitioner fails to state a cognizable 

federal habeas claim.

G. Claim Twelve.

In Claim Twelve, Petitioner asserts that his rights under

the Fifth, Sixth, and Fourteenth Amendments were violated by the 

trial court’s admission of testimony that Petitioner was the 

subject of a prior undercover narcotics investigation in Texas. 

(Doc. 1 at 30). Petitioner presented this claim to the Alabama 

Court of Criminal Appeals on direct appeal of his fourth trial, 

and, in its memorandum opinion rejecting Petitioner’s claim, the 

court stated:

Tomlin argues in his brief to this Court 

that the trial court erred in allowing 

evidence indicating that “two narcotics 

Case 1:10-cv-00120-CG-B Document 24 Filed 03/08/13 Page 94 of 194
95

officers in March 1976 were engaged in a 

sting operation against Mr. Tomlin.”

The record reflects that Tomlin moved in 

limine to “exclude any testimony about an 

investigation and trial for possession of 

marijuana that resulted in a hung jury in 

Texas in 1976.” In this motion, Tomlin 

argued:

“At the previous capital trials in 1978 

and 1990, two agents from Houston 

testified that they investigated Mr. 

Tomlin, tried to purchase one to three 

pounds of marijuana from him, and 

charged him with the sale of drugs, but 

that the jury was hung and the charges 

were dismissed. This testimony was 

highly prejudicial and in no way 

necessary to the trial of Mr. Tomlin.”

The trial court granted this motion. 

Officer Eddie Hebison, a former employee of 

the Texas Department of Public Safety, 

testified that he had a conversation with 

Tomlin in Houston about one year before the 

murders. The following occurred during his 

testimony:

“Q [Prosecutor]: And what were you 

doing on that day, if you recall?

“A: My role on that particular day was 

to serve as a back-up for Officer 

Hammons while he was inside the [Wet 

and Wild] club.

“Q: Okay. What type of law-enforcement 

operation were you conducting at the 

time?

“A: It was an undercover capacity lawenforcement thing.

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“Q: And what were your duties, 

specifically, in relation to Mr. 

Hammons?

“A: At that time, my duties were to be 

a back-up for Officer Hammons while he 

was inside the establishment.

“Q: Okay. Was your-did Mr. Hammons-was 

there someone in particular Mr. Hammons 

was going to see that evening.

“[Defense Counsel]: Objection, same 

objection we made earlier, Your Honor.

“The Court: Overruled.

“The witness: He was to meet an 

individual at the bar by the name of 

Mr. Tomlin, Phillip Wayne Tomlin.”

After this exchange, Hebison testified that 

he heard Tomlin tell Hammons that he had to 

go to Alabama to take care of some family 

business and kill the person who had killed 

his brother.

Tomlin argues that the above exchange 

indicated that Tomlin was the subject of a 

police investigation. There is absolutely 

no indication from Hebison’s testimony that 

Tomlin was the subject of any investigation 

nor that he had any prior convictions. 

Neither was there any reference to what type 

of law-enforcement agency Hebison worked 

for. The record does not support Tomlin’s 

contention.

Tomlin, 909 So. 2d at 261-62.

Case 1:10-cv-00120-CG-B Document 24 Filed 03/08/13 Page 96 of 194
97

Claim Twelve involves the interpretation and application of 

state law by state courts. Therefore, as with the state law 

issues discussed above, the issue of whether the trial court 

erred in allowing Officer Hebison’s20 testimony will only be 

reviewed on habeas to determine whether the alleged state trial 

error was “material in the sense of a crucial, critical, highly 

significant factor,” Shaw, 695 F. 2d at 530, and rendered “the 

entire trial fundamentally unfair.” Carrizales, 699 F. 2d at 

1055.

Having reviewed the record, the Court agrees with the 

Alabama Court of Criminal Appeals, for the reasons stated in its 

memorandum opinion, that Petitioner has failed to show that the 

trial court erred in allowing Officer Hebison’s testimony. As 

the Alabama Court of Criminal Appeals found, the record shows 

that Officer Hebison testified that he and his partner, Officer 

Hammons, were working undercover in 1976 and went to meet 

Petitioner at a nightclub. (Doc. 9, att. 6 at 39). While 

there, Officer Hebison overheard Petitioner tell Officer Hammons 

that “he had to go to Alabama to take care of some family 

 20 This officer’s name is spelled Hebisen in the trial court 

record. (Doc. 9, att. 6 at 38).

Case 1:10-cv-00120-CG-B Document 24 Filed 03/08/13 Page 97 of 194
98

business, to kill an individual, because he had learned that his 

brother’s death had not been an accident.” (Id. at 40). 

Contrary to Petitioner’s assertion in his habeas petition, 

Officer Hebison did not testify that Petitioner was the subject 

of a narcotics “sting operation” or that he was arrested and 

tried but not convicted. (Doc. 1 at 30). Having failed to show 

that the trial court erred in allowing Hebison’s testimony, as 

alleged in Claim Twelve, and that the error rendered his entire 

trial fundamentally unfair, Petitioner fails to state a 

cognizable federal habeas claim.

H. Claim Thirteen.

In Claim Thirteen, Petitioner asserts that his rights under 

the Fifth, Sixth, and Fourteenth Amendments were violated by the 

trial court’s denial of Petitioner’s motion for a judgment of 

acquittal based on the insufficiency of the evidence. (Doc. 1 

at 32). Specifically, Petitioner argues that there was 

insufficient evidence that he was at the scene of the murder, 

that he had a motive or intended to kill anyone other than Ricky 

Brune, that he knew that his co-defendant may have killed two 

people, or that he had a particularized intent to kill Cheryl 

Moore. (Id.). Petitioner presented this claim to the Alabama 

Court of Criminal Appeals on direct appeal of his fourth trial, 

Case 1:10-cv-00120-CG-B Document 24 Filed 03/08/13 Page 98 of 194
99

and, in its memorandum opinion rejecting Petitioner’s claim, the 

court stated:

Tomlin argues that the evidence was 

insufficient to support his conviction and 

that the trial court erred in denying his 

motion for a judgment of acquittal.

The facts of the case were discussed in 

detail at the beginning of this opinion; we 

will not recite them here. We also noted 

that the evidence presented at Tomlin’s 

fourth trial did not vary in any great 

respect from the evidence presented at his 

previous three trials. In our opinion on 

Tomlin’s appeal from his third conviction, 

we stated:

“Tomlin contends that the prosecutor 

presented insufficient evidence to 

support a guilty verdict. The state’s 

case-in-chief, as it was presented at 

Tomlin’s two previous trials, has been 

reviewed on appeal several times by 

this court and the Alabama Supreme 

Court. See 540 So. 2d 668 (Ala. 1988), 

591 So. 2d 550 (Ala. Cr. App. 1991), 

and 443 So. 2d 47 (Ala. Cr. App. 1979), 

aff’d, 443 So. 2d 59 (Ala. 1983). In 

each of those prior appeals, Tomlin did 

not question the sufficiency of the 

evidence. However, those opinions 

reviewed Tomlin’s case under the 

doctrine of plain error and did not 

suggest that the prosecution’s case was 

lacking in any way. Notably, in 

Tomlin, 443 So. 2d 47 (Ala. Cr. App.

1979), this court reviewed Tomlin’s 

first trial and expressly held that the 

evidence in that case was sufficient to 

support Tomlin’s conviction. In this 

trial, the evidence presented was 

Case 1:10-cv-00120-CG-B Document 24 Filed 03/08/13 Page 99 of 194
100

materially indistinguishable from the 

evidence at the first trial.

“In this third trial, the state’s casein-chief deviated from that of the 

previous trials in only a few respects.

“1. In this trial, the testimony did 

not establish that all of the shots 

that killed Moore and Brune were fired 

from the back seat of the automobile;

“2. In this trial, the testimony did 

not establish the brand of .38 caliber 

gun that inflicted the wounds;

“3. In this trial, the testimony did 

not establish that Daniels was in fact 

a ‘hit man’; however, the testimony did 

establish that Tomlin represented that 

he was one. [FN11]

 [FN11. In relation to the three 

noted differences set out in our 

previous opinion, we note the following 

facts that were presented at Tomlin’s 

fourth trial. There was testimony from 

James Small indicating that the shotgun 

wound to Moore’s body was not fired 

from inside the vehicle. Small 

testified that at least two bullets 

were fired from the backseat of the 

car. Four .38 caliber bullets were 

recovered from Brune’s body. One .38 

caliber bullet was recovered from 

Moore’s body. Moore had also been shot 

with a .16 gauge shotgun. No 

particular gun was ever identified as 

the gun that fired the .38 caliber 

bullets. Small testified that the .38 

caliber bullets recovered from Brune’s 

and Moore’ bodies were fired from the 

same gun. Danny Shanks testified that 

Case 1:10-cv-00120-CG-B Document 24 Filed 03/08/13 Page 100 of 194
101

Tomlin referred to Daniels as a “hit 

man.”]

“These minor variations from the 

evidence presented in Tomlin’s prior 

trials have no material effect on the 

sufficiency of the evidence presented 

during the state’s case-in-chief. We 

conclude that in this trial, ‘even 

though the evidence is circumstantial, 

when viewed in a light most favorable 

to the prosecution, it was sufficient 

to allow the jury to reasonably find 

that the evidence excluded every 

reasonable hypothesis except that of 

guilt.’ Daniels v. State, 534 So. 2d 

628, 636 (Ala. Cr. App. 1985), aff’d, 

534 So. 2d 656 (Ala. 1986), cert. 

denied, 479 U.S. 1040, 107 S. Ct. 898, 

93 L. Ed. 2d 850 (1987).”

695 So. 2d at 162-63.

There was sufficient evidence on which to 

submit the case to the jury for its 

determination. The trial court did not err 

in denying Tomlin’s motion for a judgment of 

acquittal.

Tomlin, 909 So. 2d at 263-64.

Having reviewed the record in this matter, the Court agrees 

with the Alabama Court of Criminal Appeals, for the reasons 

stated in its memorandum opinion, that Petitioner’s 

constitutional rights were not violated by the trial court’s 

denial of his motion for a judgment of acquittal based on the 

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102

insufficiency of the evidence. The evidence recounted by the 

Alabama Court of Criminal Appeals21 is supported by the record 

and is more than sufficient to support Petitioner’s convictions

of the capital murders of Cheryl Moore and Ricky Brune. See

Tomlin, 909 So. 2d at 224.

Accordingly, the Court finds that the decision of the 

Alabama Court of Criminal Appeals was a reasonable determination 

of the facts in light of the evidence presented, See 28 U.S.C. 

§ 2254(d)(2), and that the Alabama Court of Criminal Appeals 

rendered a decision that is neither contrary to, nor an 

unreasonable application of, clearly established federal law. 

See 28 U.S.C. § 2254(d)(1). Therefore, Petitioner’s claim that 

his constitutional rights were violated, as alleged in habeas 

Claim Thirteen, is without merit. 

I. Claim Fourteen. 

In Claim Fourteen, Petitioner asserts that his rights under 

the Sixth and Fourteenth Amendments were violated by the trial 

court’s denial of his motion for a change of venue. (Doc. 1 at 

33). Petitioner presented this claim to the Alabama Court of 

 21 The evidence is set forth in detail at the beginning of 

this Report and Recommendation in the “Findings of Fact and 

Proceedings.” 

Case 1:10-cv-00120-CG-B Document 24 Filed 03/08/13 Page 102 of 194
103

Criminal Appeals on direct appeal of his fourth trial, and, in 

its memorandum opinion rejecting Petitioner’s claim, the court 

stated:

Tomlin argues that the extent of the pretrial publicity surrounding the case created 

an atmosphere of prejudice and resulted in 

his being denied a fair and impartial trial. 

Specifically, Tomlin contends that the 

community was saturated with negative 

publicity surrounding the facts of the case 

and the procedural posture of the casespecifically, that this was Tomlin’s fourth 

trial on the capital-murder charges.

The majority of Tomlin’s argument in his 

brief to this Court on this issue is devoted 

to attacking the number of articles 

published and the extent of the prospective 

jurors’ knowledge of the case before 

Tomlin’s 1993 trial. It is not disputed 

that the publicity surrounding this case was 

extensive. However, the majority of the 

articles were written in 1977, immediately 

after the murders, and again immediately 

before Tomlin’s 1993 trial.

During the hearing on the motion for a 

change of venue, the trial court stated:

“The Court: ... I have no idea what 

[the newspaper] will print, what they 

will not print. I’m not inclined at 

this time to grant the motion for a 

change of venue. I do think some 

serious concerns and issues have been 

raised, and the Court is aware of those 

issues, and the Court will keep those 

issues in mind throughout these 

proceedings, but I’m not going to grant 

a change of venue.

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104

“I will state for the record, though, 

unless there is a need to hear argument 

on this or there is a strong objection 

from either side, I am going to 

request-no, I’m going to order that 

there are no interviews by the State or 

Defense with the local [newspaper]. I 

think that would only aggravate the 

situation, cause additional problems 

and then-knowing how the media may or 

may not take that, and it’s not only 

limited to the Mobile Register but any 

electronic media or print media.

“The intent at this point is to make 

sure that the State and the Defense 

receive a fair and impartial trial, and 

nothing is to be gained by giving any 

interviews, in my opinion, to any media 

outlet, either in Mobile or any part of 

this state. I think it just would 

aggravate the situation.

“I am also inclined to deviate from my 

normal jury selection process if 

there’s a request from either side to 

initially start out with individual 

voir dire so as to ensure that we don’t 

taint the panel and have to have a 

motion or hearing after we start the 

proceedings, and I’m not happy about 

that because that’s a very tedious 

process, a very long process and, 

actually, it will take longer than the 

actual trial. But just out of an 

abundance of caution I think that may 

be appropriate so we will not be back 

here again. And at the appropriate 

time if either side is going to make 

that request, you know the Court’s 

feeling on that.”

Case 1:10-cv-00120-CG-B Document 24 Filed 03/08/13 Page 104 of 194
105

The trial court then denied the motion.

The record reflects that 75 people were 

summoned for the jury venire in this case.

The venire was questioned as a group 

concerning general background information. 

The group was then split into 5 panels of 15 

members. The panels were questioned about 

whether the members had any prior knowledge 

of the case. Any member of the panel who 

responded affirmatively was questioned 

individually about what knowledge he or she 

had about the case and whether that 

knowledge would affect the person’s ability 

to render an impartial verdict. In panel 

one, three prospective jurors indicated that 

they had heard about the case. One 

indicated that she had read about the case 

in the newspaper about two months before the 

trial and that she could not remember any 

details about the case. Another juror in 

panel one indicated that at the time of the 

offense she vaguely remembered hearing about 

the case. The third juror indicated that he 

had heard two people talking about the case 

at the courthouse. All were questioned 

individually, and each indicated that he or 

she could set aside any knowledge about the 

case and render a decision based on the 

evidence presented at the trial. In panel 

two, three prospective jurors indicated that 

they had read about the case in the 

newspaper. All indicated that they could 

not remember any details. In panel three, 

three prospective jurors indicated that they 

had heard something about the case. All 

could remember no specifics, just a vague

recollection. It appears that panel four 

and five were questioned as a group because 

of the lateness of the hour. In this group 

only one prospective juror indicated that he 

remembered vaguely hearing about the case. 

All of the jurors indicated that they could 

Case 1:10-cv-00120-CG-B Document 24 Filed 03/08/13 Page 105 of 194
106

be impartial and that any knowledge they had 

about the case would not affect their 

ability to be impartial.

The record also indicates that the court 

adjourned for the day before the petit jury 

was struck. The trial court gave the 

prospective jurors a very thorough 

instruction that they were not to watch 

television, read a newspaper, or discuss the 

case. The next morning, defense counsel 

introduced a newspaper article that had 

appeared in a local newspaper that same 

morning. The trial court stated that it 

would ask the jurors if they had followed 

its instructions by not reading the 

newspapers or listening to the news. No 

juror indicated that he or she had failed to 

follow the trial court’s instructions. The 

court once again denied the motion for a 

change of venue.

A review of the voir dire proceedings 

indicates that this is not a case where the 

area was so saturated with pretrial 

publicity that Tomlin was unable to obtain a 

fair trial. It is clear, after reviewing 

the voir dire examination, that very few of 

the 75 veniremembers indicated that they had 

any prior knowledge of the case. It is also 

clear that the passage of time in this case 

between the murders and the fourth trial, 

approximately 22 years, resulted in the 

prospective jurors’ remembering very little 

about the facts and the circumstances 

surrounding the murders.

We have stated:

“‘Media publicity can prejudice 

prospective jurors and thereby result 

in a denial of a defendant’s right to a 

impartial jury. Chandler v. Florida, 

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107

449 U.S. 560, 101 S. Ct. 802, 66 L. Ed.

2d 740 (1981). In order to get a 

change of venue based on pretrial 

publicity, the defendant must prove 

that there existed actual prejudice 

against the defendant as a result of 

the publicity or that the community was 

saturated with prejudicial publicity. 

Sheppard v. Maxwell, 384 U.S. 333, 86 

S. Ct. 1507, 16 L. Ed. 2d 600 (1966). 

Newspaper articles or widespread 

publicity, without more, is 

insufficient to grant a motion for a 

change of venue. Anderson v. State, 

362 So. 2d 1296, 1298 (Ala. Cr. App.

1978).

“‘Our review of the voir dire 

examination concerning pretrial 

publicity indicates that, while many 

veniremembers had heard something about 

the case from the media, there were no 

grounds to warrant a change of venue.

See Stewart v. State, 730 So. 2d 1203, 

1241 (Ala. Cr. App. 1996).’

“Also, in Williams v. State, 565 So. 2d 

1233, 1237-38 (Ala. Crim. App. 1990), 

we stated:

“‘“As the Supreme Court explained 

in Irvin v. Dowd, 366 U.S. 717, 

723, 81 S. Ct. 1639, 1642-43, 6 L.

Ed. 2d 751 (1961):

“‘“‘To hold that the mere 

existence of any preconceived 

notion as to the guilt or 

innocence of an accused, without 

more, is sufficient to rebut the 

presumption of a prospective 

juror’s impartiality would be to 

establish an impossible standard. 

Case 1:10-cv-00120-CG-B Document 24 Filed 03/08/13 Page 107 of 194
108

It is sufficient if the juror can 

lay aside his impression or 

opinion and render a verdict based 

on the evidence presented in 

court....’

“‘“The standard of fairness does 

not require jurors to be totally 

ignorant of the facts and issues 

involved. Murphy v. Florida, 421 

U.S. 794, 799-800, 95 S. Ct. 2031, 

2035-2036, 44 L. Ed. 2d 589 

(1975). Thus, ‘[t]he proper 

manner for ascertaining whether 

adverse publicity may have biased 

the prospective jurors is through 

the voir dire examination.’ 

Anderson v. State, 362 So. 2d 

1296, 1299 (Ala. Crim. App.

1978).”

“‘ Ex parte Grayson, 479 So. 2d 

76, 80 (Ala. 1985), cert. denied, 

474 U.S. 865, 106 S. Ct. 189, 88 

L. Ed. 2d 157 [(1985)].’ ”

Dorsey, 881 So. 2d at 480. It is abundantly 

clear after reading the voir dire 

examination of the prospective jurors that 

the trial court committed no error in 

denying Tomlin’s motion for a change of 

venue.

Tomlin, 909 So. 2d at 229-32.

Having reviewed the record in this matter, the Court agrees 

with the Alabama Court of Criminal Appeals, for the reasons 

stated in its memorandum opinion, that Petitioner’s 

constitutional rights were not violated by the trial court’s 

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denial of his motion for a change of venue. The record fully 

supports the findings of the Alabama Court of Criminal Appeals

with regard to the ten prospective jurors out of the venire of 

seventy-five who stated that they had heard or read something 

about the case. As the Alabama Court of Criminal Appeals found, 

upon questioning by the trial judge, those prospective jurors 

had only the vaguest concept or memory of the case. (Doc. 9, 

att. 4 at 24-30, 69-72, 117-18, 195-96). 

Moreover, as the Alabama Court of Criminal Appeals found, 

the majority of the articles published about Petitioner’s case 

occurred in 1993, at the time of Petitioner’s third trial, and 

in 1977, at the time of the murders, many years before 

Petitioner was tried for the fourth time in 1999. Although an 

article appeared in the Mobile Register on the morning of 

Petitioner’s fourth trial reporting that he had been convicted 

of capital murder in three previous trials and sentenced to 

death (Doc. 1 at 33), the Alabama Court of Criminal Appeals 

found, and the record confirms, that on the evening before 

Petitioner’s trial began, the trial judge expressly ordered the 

jurors not to watch television, not to read the newspaper, not 

to listen to the radio, and not to discuss the case with anyone. 

(Doc. 9, att. 5 at 14-15). On the morning of trial, the judge 

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questioned the jurors in detail about whether anyone had failed 

to follow his instructions. (Id. at 58-60). Two jurors asked 

to speak to the judge. One juror stated that her sixteen-yearold son had attempted to discuss the case with her, and she had 

responded, “don’t tell me anything, don’t tell me anything.” 

(Id. at 60-61). A second juror stated that her husband had 

asked her if she was going to be on “the big case,” and she 

responded that she could not talk about it and ended the 

conversation. (Id. at 62). There is absolutely no evidence

that any prior knowledge or pre-trial publicity affected the 

venire in this case, nor is there evidence that the pretrial 

publicity was “so ubiquitous and inflammatory that prejudice 

must be presumed despite the lack of any bias or prejudice 

expressed by the eventual jurors during voir dire.” Henyard v. 

McDonough, 459 F. 3d 1217, 1242 (11th Cir. 2006) (“[T]he burden 

placed upon the petitioner to show that pretrial publicity 

deprived him of his right to a fair trial before an impartial 

jury is an extremely heavy one. . . . It is only where a 

‘barrage of inflammatory publicity immediately prior to trial’

inspires a ‘huge wave of public passion’ against the defendant 

that the local jury pool should be presumed unable to judge the 

Case 1:10-cv-00120-CG-B Document 24 Filed 03/08/13 Page 110 of 194
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defendant impartially.”) (quoting Patton v. Yount, 467 U.S. 

1025, 1033 (1984)). The record contains no such evidence. 

Accordingly, the Court finds that the decision of the 

Alabama Court of Criminal Appeals was a reasonable determination 

of the facts in light of the evidence presented, see 28 U.S.C. 

§ 2254(d)(2), and that the Alabama Court of Criminal Appeals 

rendered a decision that is neither contrary to, nor an 

unreasonable application of, clearly established federal law. 

See 28 U.S.C. § 2254(d)(1). Therefore, Petitioner’s claim that 

his constitutional rights were violated, as alleged in habeas 

Claim Fourteen, is without merit. 

J. Claim Fifteen.

In Claim Fifteen, Petitioner asserts that his rights under 

the Fifth, Sixth, and Fourteenth Amendments were violated by the 

prosecutor’s misconduct in presenting evidence to the grand jury 

of Petitioner’s involvement in a plot to “murder for pecuniary 

gain,” a charge of which he had been acquitted in a previous 

trial. (Doc. 1 at 34; Doc. 19, att. 2 at 57). Petitioner 

presented this claim to the Alabama Court of Criminal Appeals on 

direct appeal of his fourth trial, and, in its memorandum 

opinion rejecting Petitioner’s claim, the court stated:

Case 1:10-cv-00120-CG-B Document 24 Filed 03/08/13 Page 111 of 194
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Tomlin argues that the prosecutor engaged in 

misconduct when he abused the grand-jury 

process. Specifically, Tomlin argues that 

the prosecutor presented evidence to the 

grand jury to secure a two-count indictment 

charging double murder and murder for hire, 

the latter of which Tomlin had been 

acquitted of as a result of the verdict in 

his second trial. Tomlin contends that the 

prosecutor’s actions in presenting such 

evidence prejudiced him and violated his 

constitutional rights.

This same issue was presented on the appeal 

from Tomlin’s third trial and conviction. 

This Court stated:

“Tomlin contends that the prosecutor 

improperly manipulated the grand jury 

in the current proceedings by 

presenting to it evidence relating to 

the murder-for-hire charge, as to which 

he had been acquitted in the second 

trial. Tomlin claims that as a result, 

the grand jury was prejudiced against 

him and was improperly induced to 

charge him with double murder-a charge 

that it would, allegedly, not have 

otherwise returned. Because, as we 

have previously noted, the grand jury 

found probable cause to indict Tomlin 

for murder-for-hire, we presume that 

the prosecutor presented to the grand 

jury evidence of an alleged contract. 

However, the record before us contains 

none of the evidence presented to the 

grand jury. Thus, for purposes of our 

discussion of this issue, we assume 

that the evidence relevant to a murderfor-hire charge that was presented to 

the grand jury was the same 

subsequently presented to the petit 

jury: (1) that Tomlin referred to 

Case 1:10-cv-00120-CG-B Document 24 Filed 03/08/13 Page 112 of 194
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Daniels as a ‘hit man,’ and (2) that 

Tomlin stated that he hired Daniels to 

kill the victims.

“Tomlin has failed to present anything 

in the record that would indicate that 

the prosecutor did not present 

sufficient evidence to the grand jury 

on the charge of double murder.

“‘“When it appears that witnesses were 

examined by the grand jury, or that the 

grand jury had before them documentary 

evidence, no inquiry into the 

sufficiency of the evidence is 

indulged.” Loyd v. State, 279 Ala. 

447, 448, 186 So. 2d 731 (1966).’

“Coral v. State, 551 So. 2d 1181, 1182 

(Ala. Cr. App. 1989). It appears in 

this case that the grand jury did 

examine witnesses and [documents]; 

therefore, we will not address whether 

that evidence was sufficient to support 

the grand jury’s return of the double 

murder indictment.

“Tomlin’s argument is merely that the 

grand jury considered illegal, 

prejudicial evidence. However,

“‘[w]hile an indictment cannot rest 

“solely” on [illegal] evidence ..., 

Alsobrook v. Bridges, 43 Ala. App. 145, 

146, 182 So. 2d 382 (1966), the fact 

that illegal evidence was considered by 

the grand jury along with legal 

evidence does not render the indictment 

void or subject to being quashed. 

Aaron v. State, 271 Ala. 70, 77, 122 

So. 2d 360 (1960).’

Case 1:10-cv-00120-CG-B Document 24 Filed 03/08/13 Page 113 of 194
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“Coral, 551 So. 2d at 1182.

Furthermore, all evidence that would 

have supported a charge that Tomlin 

contracted the murders was also 

relevant to the issue whether Tomlin 

intentionally caused the deaths of the 

victims and was in the form of 

admissible hearsay testimony. 

Therefore, without question, this 

evidence was admissible in regard to 

the double murder charge.

“Tomlin’s argument is thus reduced to 

the mere claim that evidence presented 

to the grand jury was prejudicial. 

This contention is axiomatic and does 

not, without more, render that evidence 

inadmissible. Cf., Oregon v. Kennedy, 

456 U.S. 667, 675, 102 S. Ct. 2083, 

2089, 72 L. Ed. 2d 416, 424 (1982) 

(‘Every act on the part of a rational 

prosecutor during a trial is designed 

to “prejudice” the defendant by placing 

before the judge or jury evidence 

leading to a finding of guilt.’). 

Based upon the record on appeal, the 

prosecution did not place Tomlin twice 

in jeopardy on the charge of murderfor-hire, and the trial court properly 

allowed the trial to proceed under the 

indictment that charged him with double 

murder.”

695 So. 2d at 163-64 (footnote 

omitted).

Tomlin, 909 So. 2d at 228-29.

Having reviewed the record in this matter, the Court agrees 

with the Alabama Court of Criminal Appeals, for the reasons 

stated in its memorandum opinion, that Petitioner’s 

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115

constitutional rights were not violated by the prosecutor’s 

alleged misconduct in presenting evidence in the grand jury 

proceedings that Petitioner was involved in a “murder for 

pecuniary gain.” Nowhere in his petition does Petitioner state 

precisely what evidence he claims was presented to the grand

jury on this issue, nor does the record contain the grand jury 

proceedings. Therefore, the Court must assume, as did the 

Alabama Court of Criminal Appeals, that the evidence was the 

same as that presented at trial, that is, that Petitioner 

accompanied a man named John “Ron” Daniels to Mobile, Alabama, 

from Houston, Texas, to avenge the death of Petitioner’s brother 

and that Petitioner referred to Daniels as a “hit man.” (Doc. 

9, att. 6 at 49, 55, 70, 91, 107-08). Assuming that the 

prosecutor presented this evidence to the grand jury, Petitioner 

is not entitled to habeas relief. 

First, as the Alabama Court of Criminal Appeals found, 

Petitioner was indicted, tried, and convicted of the capital 

offense of double intentional murder of Ricky Brune and Cheryl 

Moore. (Doc. 9, att. 5 at 116; Doc. 9, att. 8 at 14, 47). 

Evidence that Petitioner traveled to Mobile with a man named 

Daniels at the time of the murders for the stated purpose of 

avenging the death of his brother and that he referred to 

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Daniels as a “hit man” supports the grand jury’s charge of 

intentional double murder and, thus, was not improperly 

admitted, despite Petitioner’s acquittal on the murder-for-hire 

charge in a previous trial. 

Moreover, even assuming that this evidence was not properly

admitted in the grand jury proceedings in Petitioner’s fourth 

trial, its admission was not material to the grand jury’s 

decision to indict Petitioner for double intentional murder and, 

thus, did not affect the indictment. Anderson v. Secretary for 

Dep’t of Corrs., 462 F. 3d 1319, 1325 (11th Cir. 2006) 

(“Beasley’s grand jury testimony, although false in part, was 

not false in any material respect that would have affected the 

indictment. . . . [W]e are not faced with subsequent testimony 

that can be said to remove the underpinnings of the 

indictment.”). 

Finally, in Anderson, the Eleventh Circuit recognized that, 

in some circumstances, a petit jury’s conviction renders

harmless any admission of illegal evidence before the grand 

jury. See Anderson, 462 F. 3d at 1327 (“Although Mechanik does 

not squarely address the situation presented in this case, it 

arguably favors a holding that the petit jury’s conviction of 

Petitioner renders harmless Beasley’s perjured grand jury 

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testimony.”) (citing United States v. Mechanik, 475 U.S. 66, 70

(1986) (holding that a violation of Federal Rule of Criminal 

Procedure 6(d), which specified who could be present during a 

grand jury proceeding, was harmless beyond a reasonable doubt 

because “the petit jury’s subsequent guilty verdict means not 

only that there was probable cause to believe that the 

defendants were guilty as charged, but also that they are in 

fact guilty as charged beyond a reasonable doubt.”); see also

Lopez v. Riley, 865 F. 2d 30, 32 (2d Cir. 1989) (“This appeal, 

by contrast, does put in issue whether the specified claims of 

deficiencies in the state grand jury proceedings [i.e., the use 

of misleading and prejudicial evidence, among others] are 

cognizable in a habeas corpus proceeding. In light of Mechanik, 

we conclude they are not.”). Cf., St. Pierre v. United States, 

2005 WL 2126955, *2 (M.D. Fla. 2005) (unpublished) (“The issue 

concerning the alleged misrepresentation of facts to the grand 

jury in order to obtain the Indictment is not cognizable in a § 

2255 proceeding. It is not a constitutional issue . . . and in 

light of the subsequent jury verdict it would not result in a 

complete miscarriage of justice if condoned.”). Therefore, as 

the Supreme Court in Mechanik held, “[m]easured by the petit 

jury’s verdict,” any error in the grand jury proceeding 

Case 1:10-cv-00120-CG-B Document 24 Filed 03/08/13 Page 117 of 194
118

connected with the admission of evidence that Petitioner hired a 

hit man to kill the victims was “harmless beyond a reasonable 

doubt.” Mechanik, 475 U.S. at 70.

Accordingly, for each of these reasons, the Court finds 

that the decision of the Alabama Court of Criminal Appeals was a 

reasonable determination of the facts in light of the evidence 

presented, See 28 U.S.C. § 2254(d)(2), and that the Alabama 

Court of Criminal Appeals rendered a decision that is neither 

contrary to, nor an unreasonable application of, clearly 

established federal law. See 28 U.S.C. § 2254(d)(1). 

Therefore, Petitioner’s claim that his constitutional rights 

were violated, as alleged in habeas Claim Fifteen, is without 

merit. 

K. Claim Sixteen. 

In Claim Sixteen, Petitioner asserts that his rights under 

the Fifth, Sixth, and Fourteenth Amendments were violated by the 

trial court’s admission of hearsay evidence in the form of an 

airport parking claim ticket found at the New Orleans 

International Airport in an abandoned vehicle owned by 

Petitioner’s sister. (Doc. 1 at 35). The date on the ticket 

corresponded with the time of the murders and corroborated the 

State’s theory that Petitioner and Daniels drove to New Orleans, 

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Louisiana, after the murders and flew home to Houston. (Doc. 9, 

att. 7 at 77). This evidence was introduced through the 

testimony of the manager of the ground parking lot at the 

airport. (Id.).

Petitioner presented this claim to the Alabama Court of 

Criminal Appeals on direct appeal of his fourth trial, and, in 

its memorandum opinion rejecting Petitioner’s claim, the court 

stated:

Tomlin argues that the trial court committed 

reversible error in allowing a ticket issued 

for the parking lot at the New Orleans 

International Airport to be introduced into 

evidence. He cites the case of Bowden v. 

State, 542 So. 2d 335 (Ala. Crim. App. 

1989), in support of this contention.

In Bowden, a cash-register receipt from a 

Hardee’s fast-food restaurant was introduced 

into evidence. The officer who found the 

receipt in the defendant’s vehicle testified 

to the contents of the receipt. The officer 

based his testimony on what an employee of 

Hardee’s had told him about the contents of 

the receipt. In reversing Bowden’s murder 

conviction, this Court stated:

“The state argues that it is evident 

from the record that [the police 

officer] was testifying, from his own 

first-hand knowledge, about the meaning 

of the numbers on the receipt. Our 

review of the record does not lead us 

to the same conclusion. In our 

opinion, [the police officer’s] 

explanation of the meaning of the 

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entries on the receipt was pure 

hearsay. Its probative force depended 

entirely on the competency and 

credibility of some person other than 

[the police officer]. The record does 

not show that [the police officer] had 

first-hand knowledge of the meaning of 

the entries, particularly, the entry of 

‘06.67,’ which was crucial. His 

testimony that he ‘verified’ the 

information and ‘would have surmised 

it,’ indicates a lack of knowledge. 

The principal reason for the hearsay 

rule was violated here. Appellant was 

denied the right to cross-examine the 

person who did possess first-hand 

knowledge of the entries to test the 

accuracy of the information.

(Moreover, the veracity of this person 

was not subject to scrutiny.) A person 

from the Hardee’s restaurant, with such 

knowledge, would have been the proper 

person to be subpoenaed and questioned, 

under oath, for that purpose. For 

example, appellant could have 

questioned this employee on the 

accuracy of the Hardee’s clock or cash 

register computer.”

542 So. 2d at 339.

In this case, Vonda Wilding, manager of the 

ground parking lot at the New Orleans 

International Airport, explained the 

procedure when a vehicle enters the parking 

lot. She testified that the ticket 

dispenser at the entrance to the lot 

dispenses a ticket. A parking ticket was 

discovered by police after searching 

Tomlin’s sister’s car found abandoned at the 

New Orleans International Airport parking 

lot. Wilding testified to the entries on 

the ticket. She testified that the ticket 

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contained the date, time, and year the car 

entered the parking lot. Wilding was the 

ideal person to testify concerning the 

parking ticket. She testified that she 

performed the maintenance on the machine. 

She could have been cross-examined about the 

machine’s accuracy.

Bowden does not hold, as Tomlin implies in 

his appellate brief, that the contents of a 

cash-register receipt are hearsay. It was 

not the admission of the cash-register 

receipt that this Court found offensive in 

Bowden, but the hearsay statements of the 

officer concerning the entries on the 

receipt.

Here, Wilding had firsthand knowledge about 

the entries on the parking ticket. This 

ticket was correctly received into evidence 

after a proper predicate for its admission 

was made. There is no error here.

Tomlin, 909 So. 2d at 256-57.

Claim Sixteen involves the interpretation and application 

of state law by state courts. Thus, as with the state law 

issues discussed above, the issue of whether the trial court 

erred in admitting the airport parking claim ticket into 

evidence will be reviewed on habeas only to determine whether 

the alleged state trial error was “material in the sense of a 

crucial, critical, highly significant factor,” Shaw, 695 F. 2d

at 530, and rendered “the entire trial fundamentally unfair.” 

Carrizales, 699 F. 2d at 1055.

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122

Having reviewed the record, the Court agrees with the 

Alabama Court of Criminal Appeals, for the reasons stated in its 

memorandum opinion, that the trial court did not err in allowing 

the admission of this evidence. That being the case, Petitioner 

cannot show that the alleged error rendered his entire trial 

fundamentally unfair, and, thus, Petitioner fails to state a 

cognizable federal habeas claim.

L. Claim Seventeen. 

In Claim Seventeen, Petitioner asserts that his rights 

under the Fifth, Sixth, and Fourteenth Amendments were violated 

when the trial court allowed a transcript of his testimony from 

his first trial to be read into evidence. (Doc. 1 at 36). 

Petitioner presented this claim to the Alabama Court of Criminal 

Appeals on direct appeal of his fourth trial, and, in its 

memorandum opinion rejecting Petitioner’s claim, the court 

stated:

Tomlin argues that the trial court erred in 

allowing a transcript of his testimony at 

his first trial to be read into evidence at 

his fourth trial. Tomlin argues that his 

testimony at his first trial was 

involuntary, that it was compelled because 

of the unconstitutional statutory scheme, 

and that it was given because his trial 

counsel had rendered ineffective assistance 

of counsel.

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In Willingham v. State, 50 Ala. App. 363, 

279 So. 2d 534 (1973), cert. denied, 291 

Ala. 803, 279 So. 2d 538 (1973), this Court 

stated:

“It is the general rule that a 

defendant who voluntarily takes the 

witness stand in his own behalf and 

testifies without asserting the 

privilege against self-incrimination, 

waives his privilege as to the 

testimony given and the same may be 

used against him in a subsequent trial 

for the same offense. Decennial 

Digest, Criminal Law, [key cite] 406(4) 

and 539(2). This rule is so broad that 

even if the defendant does not take the 

stand at the second trial this does not 

prevent the use of his testimony at the 

former trial.

“In Harrison v. United States, 392 U.S. 

219, 88 S. Ct. 2008, 20 L. Ed. 2d 1047 

[(1968)], the court per Mr. Justice 

Stewart said:

“‘In this case we need not and do 

not question the general 

evidentiary rule that a 

defendant’s testimony at a former 

trial is admissible in evidence 

against him in later proceedings. 

A defendant who chooses to testify 

waives his privilege against 

compulsory self-incrimination with 

respect to the testimony he gives, 

and that waiver is not less 

effective or complete because the 

defendant may have been motivated 

to take the witness stand in the 

first place only by reason of the 

strength of the lawful evidence 

adduced against him.’

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“In this state this rule is 

applied to inculpatory statements 

in transcript of testimony 

voluntarily given by a defendant 

in the prosecution of another for 

crime. Green v. State, 24 Ala.

App. 235, 133 So. 739 [(1931)].”

Five years later in Ashurst v. State, 

462 So. 2d 999 (Ala. Crim. App. 1984), 

we stated:

“The general rule is that a 

defendant’s testimony at a former 

trial is admissible in evidence 

against him in later proceedings. 

Harrison v. United States, 392 

U.S. 219, 88 S. Ct. 2008, 20 L.

Ed. 2d 1047 (1968); Koch v. State, 

401 So. 2d 796, 801 (Ala. Cr.

App.), cert. denied, Ex parte 

Koch, 401 So. 2d 801 (Ala. 1981); 

Cantrell v. State, 353 So. 2d 80, 

82 (Ala. Cr. App. 1977); 

Willingham v. State, 50 Ala. App. 

363, 367, 279 So. 2d 534, cert. 

denied, 291 Ala. 803, 279 So. 2d 

538 (1973). However, this rule 

does not apply where the former 

testimony was given at a hearing 

where the accused was denied his 

right to the assistance of 

counsel, People v. Martin, 21 

Mich. App. 667, 176 N.W.2d 470 

(1970), or where the former 

testimony was ‘impelled’ in order 

to rebut evidence introduced 

against the accused in violation 

of his constitutional rights. 

Harrison, supra.”

462 So. 2d at 1008.

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In Harrison v. United States, 392 U.S. 219, 

88 S. Ct. 2008, 20 L. Ed. 2d 1047 (1968), 

the United States Supreme Court addressed 

the issue whether a defendant’s testimony at 

a previous trial was admissible at a 

subsequent retrial for the same offense. In 

Harrison, the defendant testified at his 

first trial after the State had introduced 

three confessions he had made while he was 

in police custody. On appeal, Harrison’s

conviction was reversed. The Court of

Appeals found that the confessions were 

illegally obtained. At Harrison’s retrial, 

his prior testimony was read into evidence. 

The appeals court affirmed, and the United 

States Supreme Court granted “certiorari to 

decide whether the petitioner’s trial 

testimony was the inadmissible fruit of the 

illegally procured confessions.” 392 U.S. 

at 221, 88 S. Ct. 2008 (footnote omitted). 

The Supreme Court held that Harrison’s

testimony should not have been admitted at 

his retrial. The Court stated that the 

State failed to demonstrate that “the 

petitioner’s testimony was obtained ‘by 

means sufficiently distinguishable from the 

underlying illegality to be purged of the 

primary taint.’ Wong Sun v. United States, 

371 U.S. 471, 488.” 392 U.S. at 226, 88 S.

Ct. 2008.

Here, the conviction resulting from Tomlin’s 

first trial was not reversed because of the 

unlawful admission of a confession. 

Tomlin’s first conviction was reversed on 

second application for rehearing by the 

Alabama Supreme Court because of an improper 

prosecutorial argument made in closing 

argument. There was no confession 

introduced. Nor is there any claim or any 

suggestion in the record that Tomlin’s 

testimony in his first trial was made while 

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Tomlin was denied his right to the 

assistance of counsel.

As we stated in Whitehead v. State, 777 So.

2d at 822:

“Here, ‘the record ... clearly shows 

that [Whitehead] intelligently waived 

his constitutional right to remain 

silent. [He] voluntarily took the 

stand and testified [at his 

codefendant’s trial] under the guidance 

and supervision of his counsel and in 

the presence of and under the 

protection of the trial court.’ Ex 

parte Godbolt, 546 So. 2d [991] at 996 

[(Ala. 1987)]. Whitehead was not 

‘impelled’ to testify to rebut evidence 

against him, nor was he denied the 

right to assistance of counsel. In 

fact, the record shows that Whitehead’s 

counsel advised him not to testify at 

[his codefendant’s] trial, advice that 

Whitehead chose not to follow.... 

Thus, we find no error, plain or 

otherwise, in the admission into 

evidence of Whitehead’s prior 

testimony.”

Tomlin further argues that the State failed 

to meet its burden of proving that Tomlin’s 

prior testimony was voluntary. Tomlin cites 

Harrison v. United States, 392 U.S. 219, 88 

S. Ct. 2008, 20 L. Ed. 2d 1047 (1968), in 

support of this contention. In Harrison, 

the United States Supreme Court stated,

“[h]aving illegally placed his 

confessions before the jury, the 

Government can hardly demand a 

demonstration by the petitioner that he 

would not have testified as he did if 

his inadmissible confessions had not 

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been used. ‘The springs of conduct are 

subtle and varied,’ Mr. Justice Cardozo 

once observed. ‘One who meddles with 

them must not insist upon too nice a 

measure of proof that the spring which 

he released was effective to the 

exclusion of all others.’ Having 

‘released the spring’ by using the 

petitioner’s unlawfully obtained 

confessions against him, the Government 

must show that its illegal action did 

not induce his testimony.”

392 U.S. at 224, 88 S. Ct. 2008 (quoting 

DeCicco v. Schweizer, 221 N.Y. 431, 438, 117 

N.E. 807, 810 (1917)) (footnotes omitted; 

emphasis added). The Supreme Court 

explained this quote by stating that the 

prosecution has always had the burden of 

proving that a subsequent statement made 

after an involuntary statement “‘was not 

directly produced by the existence of the 

earlier confession.’” 392 U.S. at 225 n.12, 

88 S. Ct. 2008 (quoting Darwin v. 

Connecticut, 391 U.S. 346, 351, 88 S. Ct. 

1488, 20 L. Ed. 2d 630 (1968) (Harlan, J., 

concurring in part and dissenting in part)).

The holding in Harrison has no application 

in this case. No confession was admitted in 

Tomlin’s first trial or any subsequent 

trial. Nor were any of Tomlin’s convictions 

reversed based on the erroneous admission of 

an involuntary confession. There was no 

confession in this case. Tomlin’s prior 

testimony consisted of establishing an alibi 

for the time that he was Seen in Mobile the 

day before and day of the murders. The 

State was not obliged to establish that 

Tomlin’s prior testimony was not induced by 

the unlawful admittance of a confession; 

therefore, the holding in Harrison was not 

controlling. Tomlin’s prior testimony was 

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correctly received into evidence at his 

fourth trial.

Moreover, at Tomlin’s second and third 

trials his former testimony was admitted 

into evidence. On the appeal of each 

conviction we found no plain error in its 

admission.

Tomlin, 909 So. 2d at 251-53.

Having reviewed the record in this matter, the Court agrees 

with the Alabama Court of Criminal Appeals, for the precise 

reasons stated in its memorandum opinion, that Petitioner’s 

constitutional rights were not violated by the trial court’s 

admission of the transcript of his testimony from his first 

trial. (Doc. 9, att. 7 at 28-73). As the Alabama Court of 

Criminal Appeals discussed, “a defendant’s testimony at a former 

trial is admissible in evidence against him in later 

proceedings.” Harrison, 392 U.S. at 222; accord U. S. v. Nell, 

570 F. 2d 1251, 1259-60 (11th Cir. 1978). In this case, there 

is no evidence whatsoever that Petitioner’s testimony from his 

first trial was involuntary or was the result of 

constitutionally ineffective representation.

Accordingly, the Court finds that the decision of the 

Alabama Court of Criminal Appeals was a reasonable determination 

of the facts in light of the evidence presented, See 28 U.S.C. 

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§ 2254(d)(2), and that the Alabama Court of Criminal Appeals 

rendered a decision that is neither contrary to, nor an 

unreasonable application of, clearly established federal law. 

See 28 U.S.C. § 2254(d)(1). Therefore, Petitioner’s claim that 

his constitutional rights were violated, as alleged in habeas 

Claim Seventeen, is without merit. 

M. Claim Eighteen. 

In Claim Eighteen, Petitioner asserts that his rights under 

the Fifth, Sixth, and Fourteenth Amendments were violated by the 

trial court’s admission of gruesome and duplicative photographs 

of the crime scene. (Doc. 1 at 37). Petitioner presented this 

claim to the Alabama Court of Criminal Appeals on direct appeal 

of his fourth trial, and, in its memorandum opinion rejecting 

Petitioner’s claim, the court stated:

Tomlin argues that the trial court erred in 

allowing prejudicial, cumulative, and 

gruesome photographs to be received into 

evidence. He asserts that the admission of 

those photographs deprived him of his 

constitutional rights.

We have reviewed the photographs that were 

admitted at trial. The trial court did not 

err in admitting these photographs into 

evidence. As we have stated:

“‘Photographic evidence is admissible in a 

criminal prosecution if it tends to prove or 

disprove some disputed or material issue, to 

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illustrate some relevant fact or evidence, 

or to corroborate or dispute other evidence 

in the case. Photographs that tend to shed 

light on, to strengthen, or to illustrate 

other testimony presented may be admitted 

into evidence. Chunn v. State, 339 So. 2d 

1100, 1102 (Ala. Cr. App. 1976). To be 

admissible, the photographic material must 

be a true and accurate representation of the 

subject that it purports to represent. 

Mitchell v. State, 450 So. 2d 181, 184 (Ala. 

Cr. App. 1984). The admission of such 

evidence lies within the sound discretion of 

the trial court. Fletcher v. State, 291 

Ala. 67, 277 So. 2d 882, 883 (1973); Donahoo 

v. State, 505 So. 2d 1067, 1071 (Ala. Cr. 

App. 1986) (videotape evidence). 

Photographs illustrating crime scenes have 

been admitted into evidence, as have 

photographs of victims and their wounds. 

E.g., Hill v. State, 516 So. 2d 876 (Ala. 

Cr. App. 1987). Furthermore, photographs 

that show the external wounds of a deceased 

victim are admissible even though the 

evidence is gruesome and cumulative and 

relates to undisputed matters. E.g., Burton 

v. State, 521 So. 2d 91 (Ala. Cr. App. 

1987). Finally, photographic evidence, if 

relevant, is admissible even if it has a 

tendency to inflame the minds of the jurors. 

Hutto v. State, 465 So. 2d 1211, 1212 (Ala. 

Cr. App. 1984).’”

Travis v. State, 776 So. 2d 819, 869 (Ala. 

Crim. App. 1997), aff’d, 776 So. 2d 874 

(Ala. 2000), cert. denied, 531 U.S. 1081, 

121 S. Ct. 785, 148 L. Ed. 2d 681 (2001), 

quoting Ex parte Siebert, 555 So. 2d 780, 

783 (Ala. 1989), cert. denied, 497 U.S. 

1032, 110 S. Ct. 3297, 111 L. Ed. 2d 806 

(1990).

Tomlin, 909 So. 2d at 262-63.

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Claim Eighteen involves the interpretation and application 

of state law by state courts. Thus, as with the state law 

issues discussed above, the issue of whether the trial court 

erred in admitting these photographs will be reviewed on habeas 

only to determine whether the alleged state trial error was 

“material in the sense of a crucial, critical, highly 

significant factor,” Shaw, 695 F. 2d at 530, and rendered “the 

entire trial fundamentally unfair.” Carrizales, 699 F. 2d at 

1055.

Having reviewed the photographs at issue (Doc. 10, att. 6 

at 59-89), the Court agrees with the Alabama Court of Criminal 

Appeals, for the reasons stated in its memorandum opinion, that 

the trial court did not err in admitting photographs of the 

crime scene, including photographs of the bodies of the victims

and their gunshot wounds. Furthermore, assuming, arguendo, that 

the trial court did err with respect to the admission of the 

photographs, Petitioner has not shown that this alleged error 

rendered his entire trial fundamentally unfair. Thus, 

Petitioner fails to state a cognizable federal habeas claim.

N. Claim Nineteen. 

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In Claim Nineteen, Petitioner asserts that his rights under 

the Fifth, Sixth, and Fourteenth Amendments were violated by the 

trial court’s admission of hearsay evidence in the form of a 

letter written by Petitioner’s father regarding the death of 

David Tomlin, Petitioner’s brother. (Doc. 1 at 38). Petitioner 

presented this claim to the Alabama Court of Criminal Appeals on 

direct appeal of his fourth trial, and, in its memorandum 

opinion rejecting Petitioner’s claim, the court stated:

Tomlin argues that the trial court erred in 

allowing a letter written by Tomlin’s 

father, Jack Tomlin, to be introduced into 

evidence. Specifically, he contends that 

this letter was hearsay and that its

admission violated numerous of his 

constitutional rights. FN9

 [FN9. The contents of the letter 

consisted of the following:

 “To: Circuit Solicitor Chs. 

Graddick

 “On November 22, 1975, my son Paul 

David Tomlin was killed by a shotgun 

blast fired into his body. This took 

place while he was asleep in his bed.

 “Richard Brune admitted firing the 

gun but claimed it to be an accident. 

Since there were no eyewitnesses to 

this terrible act [M.H.] from your 

office refused any further help, 

therefore bringing police investigation 

to a halt. 

 “I made several calls to you but 

you have repeatedly refused to talk to 

me or return my calls. You also would 

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not talk to me when I visited your 

office.

 “This continued neglect of your 

duties as public defender in my opinion 

is not excusable.

 “It is true the boy was only 18 

years of age but I think he is due some 

protection under our laws.

 “Unless some positive action is 

taken by you within 5 (five) days, I 

shall take further action.

 “Jack Tomlin

 “Copies sent to:

 “Governor: State of Alabama

 “Crime Commission State of Alabama

 “Mobile County Sheriff

 “Foreman Mobile Co. Grand Jury

 “Chief of Police Prichard Alabama

 “Mobile Press

 “W.A.L.A. Television Station

 “W.U.N.I. Radio Station

 “Alabama State Attorney General 

Office”]

During the examination of Willie Edward 

Estes, a former deputy with the Mobile 

County Sheriff’s Department, the letter was 

offered and admitted into evidence. The 

following occurred:

“[Prosecutor]: Judge, we’d offer 

State’s Exhibit One.

“The Court: Any objections?

“[Defense Counsel]: No objection, Your 

Honor.

“The Court: It’s admitted.

“(State’s Exhibit Number One was 

admitted into evidence.)

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“The Court: Anything else of this 

witness?

“[Prosecutor]: No, Your Honor.”

Because defense counsel did not object to 

the admission of the letter, we must 

evaluate this argument only for plain error. 

Rule 45A, Ala. R. App. P.

Not only did defense counsel not object to 

the admission of the letter, defense counsel 

questioned this witness in-depth about the 

contents of the letter. The prosecution 

elicited very little information from this 

witness concerning the contents of the 

letter. However, defense counsel conducted 

the following examination of this witness:

“Q: Let me hand you, if I might, that 

exhibit that we just identified, I 

didn’t know where it was just a minute 

ago, State’s Exhibit Number One. Now 

this is the letter to the Circuit 

Solicitor, Mr. Graddick, that is signed 

by Jack Tomlin; is that right?

“A: My understanding, yes, sir.

“Q: Yes, sir. And in the first 

paragraph, this is the one where he 

said, ‘The shotgun was fired into the 

body. This took place while he was 

asleep in bed’?

“A: Yes, sir.

“Q: And then that’s referring to his 

son?

“A: Yes, sir.

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“Q: And the next paragraph, you said, 

‘Ricky Brune admitted firing the gun.’?

“A: Yes, sir.

“Q: Now look just at the next page of 

that, copies of that letter, according 

to that document in front of you, were 

sent, is this not true, Mr. Estes, to 

the Governor?

“A: Yes, sir.

“Q: Is that true. To the Crime 

Commission of the State of Alabama?

“A: Yes.

“Q: Mobile County Sheriff?

“A: Yes.

“Q: Foreman of the grand jury?

“A: Yes.

“Q: Chief of police in Prichard?

“A: Yes.

“Q: To the Mobile Press?

“A: Yes.

“Q: WALA Television?

“A: Yes, sir.

“Q: WUNI?

“A: Yes, sir.

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“Q: And the State Attorney General’s 

Office?

“A: Mine runs out right there, sir. 

Let me see, yes.

“[Defense counsel]: That’s all. Thank 

you very much.”

Tomlin argues that the contents of the 

letter were hearsay and inadmissible. 

Hearsay is defined in Rule 801(c), Ala. R.

Evid., as “a statement, other than one made 

by the declarant while testifying at the 

trial or hearing, offered in evidence to 

prove the truth of the matter asserted.”

Clearly the letter was not admitted to prove 

the truth of the contents-that the district 

attorney’s office was no longer 

investigating Tomlin’s son’s death. The 

letter was offered to prove the state of 

mind of the declarant. Danny Shanks 

testified that the Tomlin family had bad 

feelings toward Richard Brune because they 

believed that the shooting of David Tomlin 

was not an accident.

The trial court properly allowed the letter 

to be received into evidence.

Tomlin, 909 So. 2d at 254-56.

Claim Nineteen involves the interpretation and application 

of state law by state courts. Thus, as with the state law 

issues discussed above, the issue of whether the trial court 

erred in admitting this evidence will be reviewed on habeas only 

to determine whether the alleged state trial error was “material 

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in the sense of a crucial, critical, highly significant factor,” 

Shaw, 695 F. 2d at 530, and rendered “the entire trial 

fundamentally unfair.” Carrizales, 699 F. 2d at 1055.

Having reviewed the record, the Court agrees with the 

Alabama Court of Criminal Appeals, for the precise reasons 

stated in its memorandum opinion, that the trial court did not 

err in admitting the letter written by Petitioner’s father 

regarding the death of Petitioner’s brother, David Tomlin. 

(Doc. 9, att. 8 at 166). The State’s theory of the case was 

that Petitioner killed Ricky Brune, on behalf of the entire 

Tomlin family, in retaliation for Ricky Brune killing his 

brother, David Tomlin. As discussed by the Alabama Court of 

Criminal Appeals, the letter written to the police and other 

officials by Petitioner’s father, which threatened “further 

action” if the police continued to “neglect [their] duties” with 

respect to the killing of David Tomlin by Ricky Brune, was 

clearly admissible to show motive for the murder of Ricky Brune. 

(Id.). Furthermore, even assuming, arguendo, that the trial 

court did err with respect to the admission of the letter, 

Petitioner has not shown that this alleged error rendered his 

entire trial fundamentally unfair. Thus, Petitioner fails to 

state a cognizable federal habeas claim.

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O. Claim Twenty. 

In Claim Twenty, Petitioner asserts that his rights under 

the Fifth, Sixth, and Fourteenth Amendments were violated by 

improper and misleading arguments by the prosecutor in his 

opening statement and closing argument, specifically including 

comments related to David Tomlin’s death being accidental, 

Petitioner’s knowledge that Ricky Brune had a girlfriend, and 

evidence of Petitioner’s “flight” after the murders. (Doc. 1 at 

39; Doc. 19, att. 3 at 1-13). Petitioner presented this claim 

to the Alabama Court of Criminal Appeals on direct appeal of his 

fourth trial, and, in its memorandum opinion rejecting 

Petitioner’s claim, the court stated:

Tomlin argues that the prosecutor engaged in 

misconduct that denied him his right to due 

process and a fair trial. Tomlin’s entire 

argument in brief on this issue consists of 

the following:

“Throughout closing argument, the 

prosecutor made allegations that were 

entirely unsupported by the evidence. 

For instance, the prosecutor argued 

that Mr. Tomlin knew that Ricky Brune 

had a girlfriend and that ‘they went 

around together.’ There was absolutely 

no evidence to that effect. The 

prosecutor also improperly argued that 

the death of David Tomlin was 

accidental. Again, there was no 

admissible evidence to support that 

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conclusion. The prosecutor also made 

an improper argument about flight.”

Even though Tomlin fails to make any 

argument concerning these allegations in his 

brief, because this is a death-penalty case 

we will review the contentions raised by 

Tomlin in his brief. See Rule 45A, Ala. R.

App. P.

“‘The test of a prosecutor’s legitimate 

argument is that whatever is based on 

facts and evidence is within the scope 

of proper comment and argument. 

Kirkland v. State, 340 So. 2d 1139 

(Ala. Cr. App.), cert. denied, 340 So.

2d 1140 (Ala. 1976 [1977] ).

Statements based on facts admissible in 

evidence are proper. Henley v. State, 

361 So. 2d 1148 (Ala. Cr. App.), cert. 

denied, 361 So. 2d 1152 (Ala. 1978). A 

prosecutor as well as defense counsel 

has a right to present his impressions 

from the evidence. He may argue every 

legitimate inference from the evidence 

and may examine, collate, sift, and 

treat the evidence in his own way. 

Williams v. State, 377 So. 2d 634 (Ala.

Cr. App. 1979); McQueen v. State, 355 

So. 2d 407 (Ala. Cr. App. 1978).’”

Ballard v. State, 767 So. 2d 1123, 1135 

(Ala. Crim. App. 1999), cert. quashed, 767 

So. 2d 1142 (Ala. 2000), quoting Watson v. 

State, 398 So. 2d 320, 328 (Ala. Crim. App.

1980), cert. denied, 398 So. 2d 332 (Ala.

1981), cert. denied, 452 U.S. 941, 101 S.

Ct. 3085, 69 L. Ed. 2d 955 (1981).

First, Tomlin stated that the prosecutor 

engaged in misconduct by arguing that Tomlin 

knew that Brune had a girlfriend. The 

prosecutor argued in closing, “I mean, they 

Case 1:10-cv-00120-CG-B Document 24 Filed 03/08/13 Page 139 of 194
140

knew [Brune.] They knew he had a 

girlfriend. They knew they went around 

together-” When this statement was made, 

defense counsel objected, stating that there 

was no evidence to support the statement. 

The trial court then stated, “The jury heard 

the evidence and the jury understands that 

this case will be decided on the evidence 

from the witness stand and the law that I 

will instruct you on.” It appears that the 

trial court sustained Tomlin’s objection to 

this argument. Moreover, this is a 

legitimate inference that could be drawn 

from the testimony. There was testimony 

that David Tomlin and Brune were friends and 

that Brune was even one of the pallbearers 

at David Tomlin’s funeral. Certainly, this 

evidence would tend to imply that Brune was 

known to the Tomlin family.

Tomlin also states that the prosecutor erred 

in arguing that David Tomlin’s death was an 

accident when there was “no admissible 

evidence” to support this statement. Tomlin 

himself testified that David Tomlin’s death 

was an accident. Also, Officer Henton 

testified that the police had ruled David 

Tomlin’s death an accident. This was a 

proper argument based on the evidence 

presented at trial.

Tomlin last states that the prosecutor 

improperly argued flight evidence. We note 

that there was no objection to any flight 

argument made until after all of the 

arguments had been made. Moreover, Tomlin 

failed to identify what he considered to be 

an argument on flight. We have reviewed the 

opening statement, and we find no reference 

to any flight evidence. The only reference 

made was that Tomlin flew from Houston to 

New Orleans. There was no plain error here.

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Tomlin, 909 So. 2d at 265-66.

Claim Twenty involves the interpretation and application of 

state law by state courts. Thus, as with the state law issues 

discussed above, the issue of prosecutorial misconduct, as set 

forth in Claim Twenty, will be reviewed on habeas only to 

determine whether the alleged state trial error was “material in 

the sense of a crucial, critical, highly significant factor,” 

Shaw, 695 F. 2d at 530, and rendered “the entire trial 

fundamentally unfair.” Carrizales, 699 F. 2d at 1055.

Having reviewed the record, the Court agrees with the 

Alabama Court of Criminal Appeals, for the reasons stated in its 

memorandum opinion, that there was no prosecutorial misconduct 

with respect to the prosecutor’s comments in opening statement 

and closing argument related to flight, David Tomlin’s death 

being accidental, or Petitioner’s knowledge that Ricky Brune had 

a girlfriend. (Doc. 9, att. 5 at 115-132; Doc. 9, att. 7 at 

157-168, 200; Doc. 9, att. 8 at 1-8). As the Alabama Court of 

Criminal Appeals found, the trial judge instructed the jury 

repeatedly in opening and closing arguments that the statements 

and arguments of counsel were not evidence and were not to be 

considered evidence. Moreover, as the Alabama Court of Criminal 

Appeals found, the record evidence supports every inference and 

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fact argued by the prosecutor with respect to these matters. 

Indeed, even Petitioner’s own counsel referred to evidence in 

his opening statement and closing argument indicating that David 

Tomlin’s death was accidental. (Doc. 9, att. 5 at 136; Doc. 9, 

att. 7 at 171, 186). Furthermore, with respect to evidence that 

Petitioner and his accomplice fled to New Orleans and then to 

Houston after the murders, Petitioner’s own counsel referred to 

the tag that was found on luggage belonging to Petitioner’s codefendant, John Ronald Daniels, showing that Daniels had flown 

from New Orleans to Houston shortly after the murders. (Doc. 9, 

att. 5 at 145-46; Doc. 9, att. 7 at 190, 199). Petitioner’s 

counsel further discussed the ease with which one could buy an 

airplane ticket in 1977 without providing a name or 

identification. (Id. at 147). Finally, there was sufficient 

evidence from which the jury could infer that the Tomlins were 

well acquainted with Ricky Brune and would have known that he 

had a girlfriend. Therefore, for each of these reasons, there 

was no error with respect to the prosecutor’s comments on these 

matters. 

Even assuming, arguendo, that the prosecutor’s arguments, 

as set forth above, were improper, Petitioner has not shown that 

these alleged errors rendered his entire trial fundamentally 

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unfair. Thus, Petitioner fails to state a cognizable federal 

habeas claim.

P. Claims Twenty-one through Twenty-five. 

In Claims Twenty-one through Twenty-five, Petitioner 

asserts that his rights under the Fifth, Sixth, and Fourteenth 

Amendments were violated with respect to various portions of the 

trial court’s instructions to the jury. Each of these claims 

involves the interpretation and application of state law by 

state courts. Therefore, as with the state law issues discussed 

above, federal review of the propriety of jury instructions from 

a state trial is very limited. See Agan v. Vaughn, 119 F. 3d

1538, 1545 (11th Cir. 1997) (“Our limited role on habeas review, 

when faced with a challenge to a state law jury charge, is to 

determine whether any error or omission in the jury charge was 

so prejudicial as to amount to a violation of due process.”) 

(citing Carrizales, 699 F. 2d at 1055). “A defendant’s right to 

due process is not violated unless an erroneous instruction, 

when viewed in light of the entire trial, was so misleading as 

to make the trial unfair.” Id. 

In Claim Twenty-one, Petitioner argues that the trial court 

improperly reinstructed the jury on the issue of “particularized 

intent” after the jury asked questions related to intent. (Doc. 

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1 at 40; Doc. 19, att. 3 at 14-19). Petitioner presented this 

claim to the Alabama Court of Criminal Appeals on direct appeal 

of his fourth trial, and, in its memorandum opinion rejecting 

Petitioner’s claim, the court stated:

Tomlin argues that the trial court 

improperly reinstructed the jury on 

particularized intent.

The record reflects that, after the jury had 

begun deliberations, it returned with two 

questions related to intent. The jury 

requested the definition of particular 

intent and asked whether you can transfer a 

particular specific intent from one person 

to another. The trial court and the 

attorneys then discussed what portions of 

the jury charge that the trial court would 

repeat to the jury.

On appeal, Tomlin argues that the trial 

court’s reinstruction on particularized 

intent was improper and erroneous. He fails 

to state in what way the instruction was 

improper or erroneous.

After Tomlin’s second trial and conviction 

we addressed the trial court’s failure to 

instruct the jury on the requirement of a 

particularized intent to kill. See Tomlin, 

591 So. 2d at 557. In accordance with our 

holding in the prior appeal, the trial court 

in Tomlin’s fourth trial gave very thorough 

and accurate instructions on the intent to 

kill. There was no plain error in the trial 

court’s instructions on intent.

Tomlin, 909 So. 2d at 269-70.

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Having reviewed the record, the Court agrees with the 

Alabama Court of Criminal Appeals, for the reasons stated in its 

memorandum opinion, that the trial court did not err with 

respect to its reinstruction on the issue of “particularized 

intent.” The record shows that, after being prompted by 

questions from the jury, the trial court essentially repeated 

its earlier instructions on particularized intent. (Doc. 9, 

att. 8 at 15-18, 40-42). Although Petitioner complains that the 

trial court went further than necessary when it included a 

portion of its earlier instruction that “[i]ntent may be formed 

while the killer is pressing the trigger that fired the fatal 

shot” (Doc. 9, att. 8 at 42), he fails to show how the inclusion 

of that language was erroneous or otherwise improper. 

Moreover, even assuming, arguendo, that the trial court’s 

reinstruction on particularized intent was improper, Petitioner 

has not shown that this alleged error rendered his entire trial 

fundamentally unfair. Thus, Petitioner fails to state a 

cognizable federal habeas claim.

In Claim Twenty-two, Petitioner states that the trial court 

gave improper instructions on premeditation, deliberation, and 

malice. (Doc. 1 at 41; Doc. 19, att. 3 at 20). The record 

shows that the trial court instructed the jury that:

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Premeditation and deliberation in the law of 

homicide are synonymous terms, meaning 

simply that the accused, before he committed 

the fatal act, intended that he would commit 

the act at the time that he did and that 

death would result. It does not mean that 

the accused must have sat down and reflected 

over it or thought over it for an 

appreciable length of time. Premeditation 

and deliberation and intent may be formed 

while the killer is pressing the trigger 

that fired the fatal shot. There need be no 

appreciable time of space between the 

formation of the intention to kill and the 

act of killing. It is possible for the 

Defendant to have framed a premeditated –

excuse me, it is possible for the Defendant 

to have framed a premeditated, as well as a 

malicious design to kill, before taking the 

gun and before it was fired. The formation 

of an intent to kill involved in 

premeditation and deliberation may be 

inferred from the character and extent of 

the wounds to the decedent.

It is well settled that malice will be 

presumed if the slayer used a loaded gun or 

any other deadly weapon, unless the 

presumption is properly rebutted by the 

circumstances involved. 

(Doc. 9, att. 8 at 18-19). After the jury began deliberations, 

they returned with questions about intent, capital murder, and 

the lesser included offenses of intentional murder and felony 

murder. (Id. at 40). The trial court reinstructed the jury, in 

part, as follows:

In order to convict the Defendant of the 

Capital Offense of Double Intentional 

Murder, you must find that Phillip Wayne 

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Tomlin had two separate specific intents to 

kill, one specific intent to kill Richard 

Brune and a separate specific intent to kill 

Cheryl Moore. You must find that Phillip 

Tomlin had the particularized intent that 

both victims be killed. . . . 

The first offense that I will define for you 

is Capital Murder – excuse me, is Capital 

Offense of Double Intentional Murder charged 

in the indictment. In order to convict 

Phillip Tomlin of the Capital Offense of 

Double Intentional Murder, you must be 

convinced, beyond a reasonable doubt, of the 

existence of five elements: One, that 

Phillip Tomlin caused the death of Richard 

Brune. Two, that Phillip Tomlin caused the 

death of Cheryl Moore. Three, that Phillip 

Tomlin caused the death by one act or 

pursuant to one scheme or course of conduct. 

Four, that Phillip Tomlin had the 

particularized intent to kill Richard Brune. 

And, five, that Phillip Tomlin had the 

particularized intent to kill Cheryl Moore. 

(Id. at 41-42). 

Petitioner argues that there was no need to instruct the 

jury on the elements of premeditation, deliberation, or malice, 

that the instructions served only to confuse the jury, and that 

the instruction on the presumption of malice impermissibly 

shifted the burden of proof. (Doc. 1 at 41; Doc. 19, att. 3 at 

23). Petitioner presented this claim to the Alabama Court of 

Criminal Appeals on direct appeal of his fourth trial, and, in 

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its memorandum opinion rejecting Petitioner’s claim, the court 

stated:

Tomlin argues that the trial court 

erroneously instructed the jury on 

premeditation, deliberation, and malice. He 

asserts that there was no need to instruct 

on these elements and doing so only confused 

the jury and lowered the State’s burden of 

proof.

Tomlin was indicted and convicted of 

violating § 13-11-2(a)(10), Ala. Code 1975 

(superseded). That section read:

“Murder in the first degree wherein two 

or more human beings are intentionally 

killed by the defendant by one or a 

series of acts.”

Murder in the first degree was defined in § 

13-1-70 (superseded). This section stated:

“Every homicide perpetrated by poison, 

lying in wait or any other kind of 

wilful, deliberate, malicious and 

premeditated killing; or committed in 

the perpetration of, or the attempt to 

perpetrate, any arson, rape, robbery or 

burglary, or perpetrated from a 

premeditated design unlawfully and 

maliciously to effect the death of any 

human being other than him who is 

killed; or perpetrated by any act 

greatly dangerous to the lives of 

others and evidencing a depraved mind 

regardless of human life, although 

without any preconceived purpose to 

deprive any particular person of life, 

is murder in the first degree; and 

every other homicide committed under 

such circumstances as would have 

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constituted murder at common law is 

murder in the second degree.”

(Emphasis added.)

The indictment returned against Tomlin 

charged:

“The Grand Jury of said County charge, 

that, before the finding of this 

indictment Phillip Wayne Tomlin whose 

name is to the Grand Jury otherwise 

unknown than as stated, did by one act 

or a series of acts, unlawfully, 

intentionally, and with malice 

aforethought, kill Richard Brune by 

shooting him with a gun, and 

unlawfully, intentionally, and with 

malice aforethought, kill Cheryl Moore 

by shooting her with a gun, in 

violation of Code of Alabama 1975, § 

13-11-2[a](10), against the peace and 

dignity of the State of Alabama.” 

Under the statute pursuant to which Tomlin 

was charged the murder must be “wilful, 

deliberate, malicious and premeditated.” See

Young v. State, 428 So. 2d 155 (Ala. Crim.

App. 1982); Sanders v. State, 392 So. 2d 

1280 (Ala. Crim. App. 1980); Carey v. State, 

361 So. 2d 1176 (Ala. Crim. App. 1978), 

cert. denied, 374 So. 2d 332 (Ala. 1979). 

The trial court’s jury instructions on 

premeditation, deliberation, and malice were 

consistent with the law and accurate 

accounts of the law at the time that the 

murders were committed. No error occurred 

here.

Tomlin, 909 So. 2d at 266-67 (footnote omitted). 

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Having reviewed the record, the Court agrees with the 

Alabama Court of Criminal Appeals, for the reasons stated in its 

memorandum opinion, that the trial court did not err with 

respect to its instructions on premeditation, deliberation, or 

malice. The record shows, as the Alabama Court of Criminal 

Appeals found, that Petitioner was indicted for “unlawfully, 

intentionally, and with malice aforethought” killing Richard 

Brune and Cheryl Moore, in violation of Alabama Code § 13-11-

2(a)(10) (superceded by § 13A-5-40(a)(10)).22 (Doc. 9, att. 1 at 

15). As the Alabama Court of Criminal Appeals stated, under 

§ 13-11-2(a)(10), which governed “[m]urder in the first degree 

wherein two or more human beings are intentionally killed by the 

 22 The Alabama legislature revised the Alabama criminal code 

effective January 1, 1980. In doing so, it repealed § 13-1-70 

(defining the degrees of murder); it abolished the degrees of 

murder; and it divided homicide into murder, manslaughter, and 

criminally negligent homicide. See Ex parte Mitchell, 936 So. 

2d 1094, 1101 n.5 (Ala. Crim. App. 2006); Williams v. State, 461 

So. 2d 834, 838 (Ala. Crim. App. 1983), rev’d on other grounds, 

461 So. 2d 852 (Ala. 1984); Thigpen v. Smith, 603 F. Supp. 1519, 

1533-36 n.10, n.12 (S.D. Ala. 1985), vacated on other grounds, 

792 F. 2d 1507 (11th Cir. 1986). The murders at issue here 

occurred on January 2, 1977. Thus, the law in effect at the 

time of the murders, §§ 13-11-2(a)(10) and 13-1-70, controlled 

the prosecution. See Blake v. State, 2010 WL 3834036, *2 (Ala. 

Crim. App. 2010) (unpublished) (quoting Minnifield v. State, 941 

So. 2d 1000, 1001 (Ala. Crim. App. 2005) (“It is well settled 

that the law in effect at the time of the commission of the 

offense controls the prosecution.”). 

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defendant by one or a series of acts,” the State was required to 

prove that the killings were “willful, deliberate, premeditated 

and malicious.” Sanders v. State, 392 So. 2d 1280, 1282 (Ala. 

Crim. App. 1980). Thus, the trial court’s instructions to the 

jury on premeditation, deliberation, and malice (Doc. 9, att. 8 

at 18) were consistent with the applicable law and were not 

erroneous. 

Moreover, with respect to Petitioner’s argument that the 

trial court’s jury instruction on malice impermissibly shifted

the State’s burden of proof, the Court has reviewed the trial 

court’s jury instructions in this case as a whole and finds that 

the State clearly retained the burden of proving that Petitioner 

had the particularized, specific intent to kill Richard Brune 

and Cheryl Moore and that he caused their deaths by one act or 

pursuant to one scheme or course of conduct. Cf., Jones v. 

Campbell, 436 F. 3d 1285, 1300-02 (11th Cir. 2006) (finding that 

a similar jury charge stating that “[e]very intentional and 

unlawful killing of a human being with a deadly weapon, such as 

a pistol or with a knife, is presumed to be done with malice 

unless the evidence that proved the killing rebuts the 

presumption of malice” did not shift the burden of proof to the 

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petitioner). Thus, the trial court’s instruction on malice in 

this case was not erroneous. 

That being said, even assuming that the trial court erred 

with respect to its instructions on premeditation, deliberation, 

or malice, any such error was harmless given that the trial 

court subsequently reinstructed the jury on particularized 

intent and the elements of the capital offense of double 

intentional murder and did not mention premeditation, 

deliberation, or malice, thereby remedying any confusion or 

error created by its inclusion of those elements in its earlier 

instructions. (Doc. 9, att. 8 at 40). Furthermore, any error 

in the trial court’s instructions in this regard was harmless 

given the overwhelming evidence of Petitioner’s guilt, as 

recounted by the state court in Tomlin, 909 So. 2d at 224. Cf.

Jones, 436 F. 3d at 1303 (finding with respect to a jury charge 

on the presumption of malice that, “[w]eighing the probative 

force of the evidence of guilt against the probative force of 

the presumption standing alone, there is no doubt in our minds 

that the verdict resting on that evidence would have been the 

same in the absence of the presumption.”). Because Petitioner 

has failed to show that the trial court’s instructions on 

premeditation, deliberation, or malice were erroneous and so 

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prejudicial or misleading as to render his entire trial 

fundamentally unfair, Petitioner fails to state a cognizable 

federal habeas claim.

In Claim Twenty-three, Petitioner argues that the trial 

court improperly instructed the jury on accomplice liability. 

Specifically, Petitioner claims that the trial court placed 

undue emphasis on the issue by repeating the instruction several 

times. (Doc. 1 at 42; Doc. 19, att. 3 at 25-28). Petitioner 

presented this claim to the Alabama Court of Criminal Appeals on 

direct appeal of his fourth trial, and, in its memorandum 

opinion rejecting Petitioner’s claim, the court stated:

Tomlin argues that the trial court erred in 

allegedly instructing the jury numerous 

times on the doctrine of accomplice 

liability.

Tomlin did not object to the trial court’s 

instruction on accomplice liability; 

therefore, we look for plain error. See

Rule 45A, Ala. R. App. P.

We have reviewed the trial court’s 

instruction on accomplice liability. The 

trial court initially gave an instruction on 

accomplice liability and then explained that 

the phrase “aids and abets” may encompass 

“acts or words of encouragement or support, 

actual or constructive.” There was no 

repetition of any accomplice-liability 

instruction.

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Moreover, the trial court gave the following 

instruction:

“Ladies and gentlemen, I may-I may, 

during the charge to you, give you one 

instruction that is similar to or 

identical to another charge. It is not 

that I intend to give emphasis to that 

particular instruction or charge, it’s 

simply they do come from different 

sources and I may very well repeat 

one.”

There is no plain error here.

Tomlin, 909 So. 2d at 269.

Having reviewed the record, the Court agrees with the 

Alabama Court of Criminal Appeals that the trial court did not 

err with respect to its instructions on accomplice liability. 

Although the trial court referenced accomplice liability 

separately with respect to capital murder, intentional murder,

and felony murder (Doc. 9, att. 8 at 16, 19, 21), the 

instructions were not improper and, viewing the instructions as 

a whole, the trial court did not place undue emphasis on that 

issue. Because Petitioner has not shown that an error with 

regard to this instruction rendered his entire trial 

fundamentally unfair, he fails to state a cognizable federal 

habeas claim.

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In Claim Twenty-four, Petitioner argues that the trial 

court improperly refused to instruct the jury on the lesser 

included offenses of murder with extreme indifference to human 

life and manslaughter. (Doc. 1 at 43; Doc. 19, att. 3 at 30). 

Petitioner presented this claim to the Alabama Court of Criminal 

Appeals on direct appeal of his fourth trial, and, in its 

memorandum opinion rejecting Petitioner’s claim, the court 

stated:

Tomlin argues that the trial court erred in 

failing to give lesser-included offense 

instructions on murder with extreme 

indifference to human life and on 

manslaughter. Tomlin does not state what 

evidence in the record brought the murders 

within the definition of the offense of 

murder with extreme indifference to human 

life or manslaughter. Tomlin’s entire 

argument on this issue consists of one 

paragraph in his brief to this Court.

The Alabama Supreme Court addressed this 

issue in this case on application for 

rehearing in the appeal of the first 

conviction. The Supreme Court stated:

“While Tomlin’s petition for writ of 

certiorari was pending before this 

court, the United States Supreme Court 

handed down Beck v. Alabama, 447 U.S. 

625, 100 S. Ct. 2382, 65 L. Ed. 2d 392 

(1980), in which it found Alabama’s 

1975 death penalty statute defective 

because the preclusion clause in the 

act prohibited juries from considering 

any lesser included offenses. Because 

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we interpreted Beck v. Alabama to 

require that all defendants theretofore 

convicted under that statute be granted 

new trials, we entered an order 

reversing Tomlin’s conviction.

“The State filed an application for 

rehearing in which it asked us to 

reconsider our interpretation of Beck 

v. Alabama. While the application for 

rehearing was pending, the Supreme 

Court released its opinion in Hopper v. 

Evans, 456 U.S. 605, 102 S. Ct. 2049, 

72 L. Ed. 2d 367 (1982). Evans had 

been convicted and sentenced to death 

after testifying that he intentionally 

shot the proprietor of a pawnshop 

during a robbery. Because Evans 

suggested no plausible claim not 

contradicted by his own testimony at 

trial which would entitle him to a jury 

instruction on a lesser included 

offense, the Court ruled that he had 

not been prejudiced by the preclusion 

clause. It concluded, therefore, that 

Evans was not entitled to a new trial.

Hopper, supra, 456 U.S. at 613-14, 102 

S. Ct. at 2054. We hereby withdraw our 

previous opinion in this case in order 

to enter an order in accordance with 

Hopper and its progeny.

“A defendant convicted under § 13-11-2 

of the 1975 statute is entitled to a 

new trial because of the preclusion 

clause in the statute if there was 

evidence introduced at trial which 

would have warranted a jury instruction 

on a lesser included offense or if the 

defendant suggests any plausible claim 

not contradicted by his own testimony 

which he might conceivably have made 

which would have entitled him to a jury 

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instruction on a lesser included 

offense. Cook v. State, 431 So. 2d 

1322, 1324 (Ala. 1983).

“Tomlin testified that he was in Texas 

at the time of the killings. We 

examined in Cook v. State, supra, the 

effect of an alibi defense on the 

question of whether a defendant 

convicted under the 1975 death penalty 

statute is entitled to a new trial 

because of the preclusion clause. We 

concluded that when a defendant 

testified that he was in a distant 

location when the crime was committed, 

his own testimony directly contradicted 

any evidence he might have introduced 

to show that he was guilty of a lesser 

included offense. Cook, supra, at 

1325.”

Tomlin, 443 So. 2d at 61-62.

Tomlin argues that he was entitled to an 

instruction on murder with extreme 

indifference to human life. This tracks the 

current murder statute found in § 13A-6-

2(a)(2), “Under circumstances manifesting 

extreme indifference to human life, he 

recklessly engages in conduct which creates 

a grave risk of death to a person other than 

himself, and thereby causes the death of 

another person.” However, in 1977, at the 

time of the murders, Alabama had degrees of 

murder and manslaughter.

“Murder is the unlawful killing of a 

human being with malice aforethought. 

Hornsby v. State, 16 Ala. App. 89, 75 

So. 637 (1917). In Alabama, murder in 

the first degree is divided into four 

classes according to mental intent. 

Mitchell v. State, 60 Ala. 26 (1877). 

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Title 14, Section 314, Code of Alabama 

1940 lists the four classes of first 

degree murder: (1) Premeditated intentto-kill murder; (2) murder in the 

commission of certain enumerated 

felonies; (3) murder of an unintended 

victim where the intent was to kill 

another; and (4) depraved mind or heart 

murder sometimes referred to as murder 

resulting from universal malice.”

Napier v. State, 357 So. 2d 1001, 1007 (Ala.

Crim. App. 1977), rev’d, 357 So. 2d 1011 

(Ala. 1978) (judgment was reversed because 

State had not proved prima facie case). The 

argument Tomlin makes about extreme 

indifference to human life is similar to the 

prior offense of universal malice murder in 

the first degree. However, there was 

absolutely no evidence indicating that the 

murders fit within this definition. This 

Court in Napier discussed the types of 

murder that constitute universal malice. 

The Court stated:

“Typical illustrations of the doctrine 

of universal malice are wilfully riding 

an unruly horse into a crowd, and 

throwing a timber from a roof into a 

crowded street. Moore v. State, 18 

Ala. 532 (1851). Other examples are 

shooting a firearm into a crowd or into 

a train, dwelling house or automobile 

containing occupants. Bailey v. State, 

133 Ala. 155, 32 So. 57 (1901); Johnson 

v. State, 203 Ala. 30, 81 So. 820 

(1919); Washington v. State, 60 Ala. 

10, 31 Am. Rep. 28 (1877); see also

Gallant v. State, 167 Ala. 60, 52 So. 

739 (1910) (setting off explosion 

beneath a house); Presley v. State, 59 

Ala. 98 (1877)(placing obstacles on 

railroad track); Langford v. State, 

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Ala. Cr. App. 1977, 354 So. 2d 297 

(driving an automobile in a grossly 

wanton manner).”

357 So. 2d at 1007.

Here, the evidence established that the two 

victims were killed by gunshot wounds fired 

at close range. The toxicologist testified 

that at least two shots were fired from the 

backseat of the car. Moore was also shot 

with a shotgun after she got out of the car. 

All of the bullets except the shotgun wound 

were made from the same .38 caliber gun. 

There was absolutely no evidence that the 

murders fit within the “universal malice” 

definition of first-degree murder.

Tomlin further argues, without any reference 

to facts in the record, that the trial court 

erred in failing to give a jury instruction 

on manslaughter. At the time of the 

killings, the Alabama Code set out two 

degrees of manslaughter. The manslaughter 

statute, § 13-1-90, Ala. Code 1975 

(superseded), stated:

“Manslaughter by voluntarily depriving 

a human being of life is manslaughter 

in the first degree; and manslaughter 

committed under any other circumstances 

is manslaughter in the second degree.”

We are assuming that Tomlin is arguing that 

the trial court erred in failing to give a 

jury instruction on manslaughter in the 

first degree. Tomlin has not cited at trial 

nor in his brief to this Court any facts 

that would bring the homicides within the 

definition of manslaughter. Certainly, the 

record fails to show any evidence indicating 

that the murders were anything but 

intentional. The trial court did not err in 

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failing to give these lesser-included 

offense instructions.

Tomlin, 909 So. 2d at 270-72.

Having reviewed the record, the Court agrees with the 

Alabama Court of Criminal Appeals, for the reasons stated in its 

memorandum opinion, that the trial court did not err in refusing 

to charge the jury with respect to the lesser included offenses

of “murder with extreme indifference to human life,” i.e., 

universal malice, and manslaughter. Contrary to Petitioner’s 

argument that the trial court’s refusal to instruct the jury on 

these lesser included offenses contradicts the governing law set 

forth in Beck v. Alabama, 447 U.S. 625 (1980), the Eleventh 

Circuit has held that “Beck’s prohibition against an all-ornothing choice between death or acquittal is not violated where 

the law permits the charging of lesser included non-capital 

offenses if the evidence supports it.” Madison v. Allen, 2011 

WL 1004885, *32 (S.D. Ala. 2011) (citing Maples v. Allen, 586 F. 

3d 879, 894 (11th Cir. 2009)).

In the instant case, Alabama law permitted the charging of 

lesser included non-capital offenses, and the trial court did in 

fact instruct the jury on the lesser included non-capital 

offenses of intentional murder and felony murder. (Doc. 9, att. 

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8 at 14-16, 19, 21). However, as in Madison, “the evidence did 

not support a finding of manslaughter [or universal malice]; 

thus, a jury charge on th[ese] lesser included offense[s] was 

properly refused by the trial court.” Id. Therefore, because 

Petitioner has not shown that the trial court erred in refusing 

to give his requested instructions and that the error rendered 

his entire trial fundamentally unfair, he fails to state a 

cognizable federal habeas claim.

In Claim Twenty-five, Petitioner argues that the trial 

court improperly instructed the jury on reasonable doubt. (Doc. 

1 at 44; Doc. 19, att. 3 at 37). Petitioner presented this 

claim to the Alabama Court of Criminal Appeals on direct appeal 

of his fourth trial, and, in its memorandum opinion rejecting 

Petitioner’s claim, the court stated:

Tomlin argues that the trial court’s jury 

instruction on reasonable doubt was flawed 

because the court used the term “moral 

certainty.” He contends that the trial 

court’s instruction violated Cage v. 

Louisiana, 498 U.S. 39, 111 S. Ct. 328, 112 

L. Ed. 2d 339 (1990).

In Reeves v. State, 807 So. 2d 18 (Ala. 

Crim. App. 2000), cert. denied, 534 U.S. 

1026, 122 S. Ct. 558, 151 L. Ed. 2d 433 

(2001), we stated:

“It is well settled that ‘[t]he Due 

Process Clause of the Fourteenth 

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162

Amendment “protects the accused against 

conviction except upon proof beyond a 

reasonable doubt of every fact 

necessary to constitute the crime with 

which he is charged.”’ Knotts v. 

State, 686 So. 2d 431, 459 (Ala. Crim. 

App.), opinion after remand, 686 So. 2d 

484 (Ala. Crim. App. 1995), aff’d, 686 

So. 2d 486 (Ala. 1996), cert. denied, 

520 U.S. 1199, 117 S. Ct. 1559, 137 L. 

Ed. 2d 706 (1997), quoting In re 

Winship, 397 U.S. 358, 364, 90 S. Ct. 

1068, 25 L. Ed. 2d 368 (1970). In Cage 

v. Louisiana [498 U.S. 39 (1990)], the 

United States Supreme Court held that 

an instruction that equated ‘reasonable 

doubt’ with ‘grave uncertainty,’ and 

‘actual substantial doubt’ and stated 

that what was required to convict was a 

‘moral certainty,’ could have led a 

reasonable juror to interpret the 

instruction to allow a finding of guilt 

based on a lesser degree of proof than 

that required by the Due Process 

Clause. Subsequently, in Victor v. 

Nebraska, 511 U.S. 1, 6, 114 S. Ct. 

1239, 1243, 127 L. Ed. 2d 583 (1994), 

‘the Court “made it clear that the 

proper inquiry is not whether the 

instructing ‘could have’ been applied 

in an unconstitutional manner, but 

whether there is a reasonable 

likelihood that the jury did so apply 

it.”’ Knotts, 686 So. 2d at 459, 

quoting Victor, 511 U.S. at 6, 114 S. 

Ct. 1239 at 1243, 127 L. Ed. 2d 583, 

quoting, in turn, Estelle v. McGuire, 

502 U.S. 62, 72-73, 112 S. Ct. 475, 

482, 116 L. Ed. 2d 385, n.4 (1991). 

The constitutional question is ‘whether 

there is a reasonable likelihood that 

the jury understood the instructions to 

allow conviction based on proof 

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163

insufficient to meet the Winship

standard.’ Victor, 511 U.S. at 6, 114 

S. Ct. at 1243. In addition, the 

Supreme Court made it clear in Victor

‘that, while it did not condone the use 

of the Cage terminology in reasonable 

doubt instructions, the use of such 

terminology does not automatically 

render instructions unconstitutional if 

“ ‘taken as a whole, the instructions 

correctly conveyed the concept of 

reasonable doubt to the jury.’”’ 

Lawhorn v. State, 756 So. 2d 971, 985 

(Ala. Crim. App. 1999), quoting Victor, 

511 U.S. at 22, 114 S. Ct. at 1251, 

quoting, in turn, Holland v. United 

States, 348 U.S. 121, 140, 75 S. Ct. 

127, 137, 99 L. Ed. 150 (1954). See

also Taylor v. State, 666 So. 2d 36, 56 

(Ala. Crim. App. 1994), aff’d, 666 So.

2d 73 (Ala. 1995), cert. denied, 516 

U.S. 1120, 116 S. Ct. 928, 133 L. Ed.

2d 856 (1996) (‘“Use of some but not 

all of the terminology found offensive 

in Cage does not automatically 

constitute reversible error.”’); and 

Sockwell v. State, 675 So. 2d 4, 23 

(Ala. Crim. App. 1993), aff’d, 675 So.

2d 38 (Ala. 1995), cert. denied, 519 

U.S. 838, 117 S. Ct. 115, 136 L. Ed. 2d 

67 (1996) (‘It was the use of all three 

phrases in conjunction with each other 

that the Supreme Court determined was 

unconstitutional in Cage.’ (Emphasis 

added [in Reeves ].)). Thus, in 

reviewing the reasonable-doubt 

instruction in this case, we do so in 

the context of the trial court’s charge 

as a whole; as long as the concept of 

‘reasonable doubt’ was correctly 

conveyed to the jury, we will not find 

error. See, e.g., Knotts, supra.”

Case 1:10-cv-00120-CG-B Document 24 Filed 03/08/13 Page 163 of 194
164

807 So. 2d at 40-41.

The trial court gave the following 

instruction on reasonable doubt:

“A reasonable doubt means simply 

what it says. It’s a doubt for 

which a reason can be given. It 

is not merely a guess or a 

surmise. A reasonable doubt may 

arise from all of the evidence or 

from a lack of the evidence or 

from any part of the evidence. 

The State of Alabama is not 

required to prove the guilt of the 

Defendant, beyond all doubt, but 

beyond all reasonable doubt. If, 

after comparing and considering 

all of the evidence in the case, 

you can say that you have an 

abiding conviction to a moral 

certainty of the truth of the 

charge, then you are convinced, 

beyond a reasonable doubt, and 

your duty is to convict the 

Defendant. If you cannot say 

that, your duty is to acquit him.”

Initially, we observe that Tomlin did 

not object to the trial court’s jury 

instruction on reasonable doubt. 

Therefore, we are confined to 

determining whether there was plain 

error in the court’s instruction. Rule 

45A, Ala. R. App. P.

“The use of the term ‘moral 

certainty’ alone in defining 

reasonable doubt did not create 

the error defined and discussed in 

Cage v. Louisiana, [498 U.S. 39 

(1990)]; rather, it was the use of 

this term in conjunction with 

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165

other terms, such as ‘grave 

uncertainty’ and ‘actual 

substantial doubt,’ that served to 

lessen the burden of proof.”

Price v. State, 725 So. 2d 1003, 1021 

(Ala. Crim. App. 1997), aff’d, 725 So.

2d 1063 (Ala. 1998), cert. denied, 526 

U.S. 1133, 119 S. Ct. 1809, 143 L. Ed.

2d 1012 (1999). See also Boyd v. 

State, 715 So. 2d 825, 843 (Ala. Crim.

App. 1997), aff’d, 715 So. 2d 852 

(Ala.), cert. denied, 525 U.S. 968, 119 

S. Ct. 416, 142 L. Ed. 2d 338 (1998) 

(“mere use of the term ‘moral 

certainty’ did not make the charge 

unconstitutional under Cage”).

“The trial court repeatedly 

emphasized that the burden was on 

the State to prove Ferguson’s 

guilt beyond a reasonable doubt; 

that a reasonable doubt could 

arise from the evidence or from a 

lack of evidence; and that the 

jury must acquit Ferguson if the 

State failed to prove each and 

every element of the capital 

offense ... beyond a reasonable 

doubt. The instruction did not 

decrease or shift the State’s 

burden of proof.”

Ferguson v. State, 814 So. 2d 925, 955 (Ala.

Crim. App. 2000).

Tomlin, 909 So. 2d at 267-69.

Having reviewed the record in this case, the Court agrees 

with the Alabama Court of Criminal Appeals, for the reasons 

stated in its memorandum opinion, that the trial court did not 

Case 1:10-cv-00120-CG-B Document 24 Filed 03/08/13 Page 165 of 194
166

err in instructing the jury on reasonable doubt. In Victor v. 

Nebraska, 511 U.S. 1, 14 (1994), the jurors were instructed, as 

they were in this case, “that they must have ‘an abiding 

conviction, to a moral certainty, of the truth of the charge.’” 

The petitioner in Victor complained, as does Petitioner here, 

that “the moral certainty element of the California instruction 

invited the jury to convict him on proof below that required by 

the Due Process Clause.” Id. at 15. The United States Supreme 

Court rejected that argument in Victor, holding, “we are 

satisfied that the reference to moral certainty, in conjunction 

with the abiding conviction language, ‘impress[ed] upon the 

factfinder the need to reach a subjective state of near 

certitude of the guilt of the accused.” Id. (quoting Jackson v. 

Virginia, 443 U.S. 307, 315 (1979)). Accordingly, the Court 

agrees with the Alabama Court of Criminal Appeals that the trial 

court’s instruction on reasonable doubt, which used the term 

“moral certainty” in conjunction with “abiding conviction,” did 

not deprive Petitioner of due process and a fair trial by 

lowering the required standard of proof. Because Petitioner has 

not shown that the trial court erred in its instructions on 

reasonable doubt and that the error rendered his entire trial 

Case 1:10-cv-00120-CG-B Document 24 Filed 03/08/13 Page 166 of 194
167

fundamentally unfair, he fails to state a cognizable federal 

habeas claim.

Q. Claim Twenty-six. 

In Claim Twenty-six, Petitioner asserts that his rights 

under the Double Jeopardy Clause were violated by his 

prosecution in his fourth trial. (Doc. 1 at 45; Doc. 19, att. 3 

at 45). Specifically, Petitioner argues that prosecutorial 

misconduct in his first three trials barred his fourth 

prosecution. (Id.). Petitioner presented this claim to the 

Alabama Court of Criminal Appeals on direct appeal of his fourth 

trial, and, in its memorandum opinion rejecting Petitioner’s 

claim, the court stated:

Tomlin argues that the trial court erred in 

denying his motion Seeking to bar his 

further prosecution because, he said, it 

violated the Double Jeopardy Clause. 

Specifically, Tomlin argues that the 

prosecutor at both his 1978 and his 1993 

trials committed such egregious misconduct 

that his convictions were reversed; 

therefore, he argues, because the 

prosecutor’s conduct resulted in the prior 

reversals, any subsequent prosecution is 

barred based on United States v. Jorn, 400 

U.S. 470, 91 S. Ct. 547, 27 L. Ed. 2d 543 

(1971), and United States v. Dinitz, 424 

U.S. 600, 96 S. Ct. 1075, 47 L. Ed. 2d 267 

(1976). Tomlin also argues that, once he 

raised the double jeopardy claim, the burden 

shifted to the State to prove that any 

Case 1:10-cv-00120-CG-B Document 24 Filed 03/08/13 Page 167 of 194
168

subsequent prosecution was not barred based 

on the prosecutor’s prior misconduct.

When arguing this issue at a pretrial motion 

hearing, the following occurred:

“[Defense counsel]: Basically, after a 

case has been reversed because of 

prosecutorial misconduct on a number of 

occasions, there comes a time when a 

case is a violation of double jeopardy. 

As I mentioned a number of times, the 

case was reversed in 1988 because of 

prosecutorial misconduct on the part of 

Don Valeska, comments on silence and 

comments on validity of the evidence. 

Those comments were so bad that the 

Court held them to be plain error on 

the second petition for rehearing.

“The case was also reversed in 1991 for 

prosecutorial misconduct based on, 

again, a comment on silence and comment 

on the co-defendant being on death row 

and sentenced to death. There has been 

prosecutorial misconduct involved in 

the presentation of evidence that 

should have been excluded from the 

grand jury in 1993, and there also have 

been a panoply of improper comments to 

the media which are documented in 

Defendant’s Exhibit Number One to the 

Court including comments to the Mobile 

paper that this is an absolute joke on 

the people of this state, as well as 

comments to the effect that the death 

penalty is too good for Tomlin.

“So when you put all these together, 

Your Honor, you have a situation of 

repeated acts of misconduct that give 

rise to a double jeopardy claim under 

cases like United States v. Dinitz, 

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169

which is at 424 U.S. 600 in 1976, and 

United States v. [Jorn]. And basically 

the double jeopardy clause in the 

United States Constitution, and this is 

equally applicable to the States, is 

violated where, ‘bad faith conduct by 

judge or prosecutor threatens the 

(inaudible) by successive prosecutions 

and declaration of a mistrial so as to 

afford the prosecution a more favorable 

opportunity to convict the Defendant.’

“After a while, Your Honor, prosecution 

is barred by double jeopardy.”

This issue has been previously addressed by 

this Court in the opinion on appeal from 

Tomlin’s third trial and conviction. In 

that opinion we stated:

“The principle of double jeopardy that 

[most] closely resembles Tomlin’s 

argument is set out in United States v. 

Dinitz, 424 U.S. 600, 96 S. Ct. 1075, 

47 L. Ed. 2d 267 (1976), as follows:

“‘The Double Jeopardy Clause does 

protect a defendant against 

governmental actions intended to

provoke mistrial requests and 

thereby to subject defendants to 

the substantial burdens imposed by 

multiple prosecutions. It bars 

retrials where “bad-faith conduct 

by judge or prosecutor,” United 

States v. Jorn, [400 U.S. 470,] 

485, 91 S. Ct. [547,] 557[, 27 L.

Ed. 2d 543 (1971)], threatens the 

“[h]arassment of an accused by 

successive prosecutions or the 

declaration of a mistrial so as to 

afford the prosecution a more 

favorable opportunity to convict” 

Case 1:10-cv-00120-CG-B Document 24 Filed 03/08/13 Page 169 of 194
170

the defendant. Downum v. United 

States, [372 U.S. 734, 736, 83 S.

Ct. 1033, 1034, 10 L. Ed. 2d 100, 

102 (1963)].’

“424 U.S. at 611, 96 S. Ct. at 1081, 47 

L. Ed. 2d at 276 (emphasis added). The 

gravamen of this principle is that the 

courts will not allow a prosecutor to 

circumvent the Double Jeopardy Clause

by goading a defendant into nullifying 

a proceeding by Seeking a mistrial, 

thus resulting in a new trial at a 

later date. Oregon v. Kennedy, [456 

U.S. 667, 102 S. Ct. 2083, 72 L. Ed. 2d 

416 (1982)], clarified the narrow test 

to be applied in determining whether a 

prosecutor’s misconduct bars a 

defendant’s retrial on double jeopardy 

principles:

“‘Prosecutorial conduct that might 

be viewed as harassment or 

overreaching, even if sufficient 

to justify a mistrial on the 

defendant’s motion, therefore, 

does not bar retrial absent intent 

on the part of the prosecutor to 

subvert the protections afforded 

by the Double Jeopardy Clause.’

“456 U.S. at 676, 102 S. Ct. at 2089, 

72 L. Ed. 2d at 424 (emphasis added).

“Although Tomlin relies solely on the Dinitz

line of cases, this principle clearly does 

not support Tomlin’s position. Likewise, 

the rule in Dinitz does not apply to the 

facts of this case-either as presented by 

Tomlin, or as independently gleaned from the 

record. Tomlin contends only that the 

prosecutor’s habitual misconduct was 

reckless and that it had the incidental 

Case 1:10-cv-00120-CG-B Document 24 Filed 03/08/13 Page 170 of 194
171

effect of subjecting Tomlin to a Sisyphean 

crucible. On this point, we agree; however, 

we know of no double jeopardy principle that 

forbids successive trials resulting from 

clumsy prosecutions. See Morrison v. 

Missouri, 946 F. 2d 1340, 1343 (8th Cir.

1991), cert. denied, 504 U.S. 959, 112 S.

Ct. 2312, 119 L. Ed. 2d 232 (1992) (‘overreaching, harassing, intentional and bad 

faith conduct’ does not implicate double 

jeopardy unless ‘the prosecutor’s conduct 

was “intended to provoke the defendant into 

moving for a mistrial.” [Oregon v.] 

Kennedy, 456 U.S. at 679, 102 S. Ct. at 

2091[, 72 L. Ed. 2d at 427]’). Tomlin has 

not alleged that the prosecutor 

intentionally invited reversal at Tomlin’s 

previous trials, and we have reviewed the 

record and have found absolutely no facts to 

support such an allegation. We hold that 

the trial court’s summary denial of Tomlin’s 

motion was proper. Even if all of the 

factual allegations contained in Tomlin’s 

motion were taken as true, Tomlin would not 

be entitled to relief.”

695 So. 2d at 164-65 (footnote omitted). 

See also Spears v. State, 647 So. 2d 15 

(Ala. Crim. App. 1994) (no double jeopardy 

bar to retrial when the prosecutor violated 

the trial court’s “gag” order and several 

newspapers articles appeared in the local 

paper during the trial thereby causing the 

trial court to declare a mistrial); Robinson 

v. State, 405 So. 2d 1328, 1332 (Ala. Crim.

App.), cert. denied, 405 So. 2d 1334 (Ala.

1981) (“no double jeopardy impediment to 

appellant’s retrial on the basis of the 

prosecution’s alleged knowing use of 

perjured testimony at the first trial”).

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172

Moreover, the State did not have the burden 

of proof here. In Spears, we addressed this 

identical issue and stated:

“Here, the appellant has simply failed 

to carry his burden of proof on this 

issue. ‘“Since a plea of former 

jeopardy sets up affirmative matter 

..., the burden of proving this issue, 

from the start, is on the 

defendant....” 30 Am. Jur. 2d Evidence 

§ 1160 (1967).’ Morris v. State, 465 

So. 2d 1173, 1177 (Ala. Cr. App. 1984), 

reversed on other grounds, 465 So. 2d 

1180 (Ala. 1985).”

Spears, 647 So. 2d at 24. Tomlin failed to 

meet his burden of proving that his 

subsequent retrial was barred based on a 

violation of the Double Jeopardy Clause.

Tomlin, 909 So. 2d at 226-28.

Having reviewed the record, the Court agrees with the 

Alabama Court of Criminal Appeals, for the reasons stated in its 

memorandum opinion, that Petitioner’s retrial did not violate 

the Double Jeopardy Clause. As the Alabama Court of Criminal 

Appeals found, “[o]nly deliberate prosecutorial misconduct 

implicates double jeopardy principles . . .[,] and the 

prosecution must have actually intended to provoke the mistrial. 

U.S. v. Walker, 201 Fed. Appx. 737, 740 (11th Cir. 2006) 

Case 1:10-cv-00120-CG-B Document 24 Filed 03/08/13 Page 172 of 194
173

(unpublished)23 (citing United States v. Vallejo, 297 F. 3d 1154, 

1163 (11th Cir. 2002) and United States v. Shelley, 405 F. 3d

1195, 1200-01 (11th Cir. 2005)). This Court finds, as did the 

state appellate courts in Petitioner’s previous appeals, that 

there is no evidence that the actions of the prosecutor in any 

of the former proceedings were motivated by an actual intent to 

provoke a mistrial.

 Accordingly, the Court finds that the decision of the 

Alabama Court of Criminal Appeals was a reasonable determination 

of the facts in light of the evidence presented, see 28 U.S.C. 

§ 2254(d)(2), and that the Alabama Court of Criminal Appeals 

rendered a decision that is neither contrary to, nor an 

unreasonable application of, clearly established federal law. 

See 28 U.S.C. § 2254(d)(1). Thus, Petitioner’s claim that his 

rights under the Double Jeopardy Clause were violated, as 

alleged in habeas Claim 26, is without merit.

R. Claim Twenty-seven. 

 23 “Pursuant to Eleventh Circuit Rule 36 2, unpublished opinions 

are not considered binding precedent, but may be cited as 

persuasive authority.” Lanier Constr., Inc. v. Carbone Props. 

of Mobile, LLC, 253 Fed. Appx. 861, 865 n.5 (11th Cir. 2007) 

(unpublished).

Case 1:10-cv-00120-CG-B Document 24 Filed 03/08/13 Page 173 of 194
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In Claim Twenty-seven, Petitioner asserts that the 

cumulative effect of multiple trial errors alleged in habeas 

Claims One through Twenty-six violated his rights under the

Fourth, Fifth, Sixth, and Fourteenth Amendments. (Doc. 1 at 46; 

Doc. 19, att. 3 at 53). Petitioner presented this claim to the 

Alabama Court of Criminal Appeals on direct appeal of his fourth 

trial, and, in its memorandum opinion rejecting Petitioner’s 

claim, the court stated:

Tomlin argues that the cumulative effect of 

the alleged errors denied him a fair trial. 

“Because we find no error in the specific 

instances alleged by the appellant, we find 

no cumulative error.” McGriff v. State, 908 

So. 2d 961, 1002 (Ala. Crim. App. 2000).

Tomlin, 909 So. 2d at 272.

As discussed above, this Court has reviewed the record and 

finds no merit in the assertions of error set forth by 

Petitioner in habeas Claims One through Twenty-six. Therefore, 

as the Alabama Court of Criminal Appeals found, Petitioner has 

failed to show that cumulative error, as alleged in those 

claims, violated his right to a fair trial. 

Accordingly, the Court finds that the decision of the 

Alabama Court of Criminal Appeals was a reasonable determination 

of the facts in light of the evidence presented, see 28 U.S.C. 

Case 1:10-cv-00120-CG-B Document 24 Filed 03/08/13 Page 174 of 194
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§ 2254(d)(2), and that the Alabama Court of Criminal Appeals 

rendered a decision that is neither contrary to, nor an 

unreasonable application of, clearly established federal law. 

See 28 U.S.C. § 2254(d)(1). Thus, Petitioner’s claim that his 

right to a fair trial was violated, as alleged in habeas Claim 

27, is without merit.

S. Claim Twenty-eight. 

In Claim Twenty-eight, Petitioner asserts that the state 

district court judge was not authorized under Alabama law to 

preside over a capital murder trial in circuit court. (Doc. 1 

at 47; Doc. 19, att. 3 at 54). The Alabama Court of Criminal 

Appeals rejected this argument in its memorandum opinion 

affirming the denial of Petitioner’s Rule 32 petition.24 (Doc. 

12, att. 10 at 2). 

 24 In its memorandum opinion affirming the denial of 

Petitioner’s request for Rule 32 relief, the Alabama Court of 

Criminal Appeals stated:

With regard to Claim 2, the Circuit Court specifically 

found:

“[A]s the State explains in its 

response, the Alabama Rules of Judicial 

Administration specifically provide that a 

district judge may be assigned to handle a 

matter in the circuit court. See Ala. R. 

Jud. Admin. 13. Here, the trial judge, a 

(Continued)

Case 1:10-cv-00120-CG-B Document 24 Filed 03/08/13 Page 175 of 194
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As discussed at length above, it is well established that 

federal habeas relief is available to correct only 

constitutional injury. Estelle v. McGuire, 502 U.S. 62, 67-68

(1991) (“it is not the province of a federal habeas court to 

reexamine state-court determinations on state-law questions. In 

conducting habeas review, a federal court is limited to deciding 

whether a conviction violated the Constitution, laws, or 

treaties of the United States.”). “This limitation on federal 

habeas review is of equal force when a petition, which actually 

involves state law issues, is ‘couched in terms of equal 

protection and due process.’” Branan v. Booth, 861 F. 2d 1507, 

1508 (11th Cir. 1988) (citation omitted). 

 

district judge in Mobile County, was 

assigned Tomlin’s case pursuant to a written 

standing order issued by the presiding 

circuit judge in Mobile County. 

Accordingly, the trial judge was authorized 

to preside over the trial of this case.”

(C.R. 22). The record supports the circuit 

court’s findings, and we adopt them as part of 

this memorandum. Therefore, the appellant is not 

entitled to relief on this claim.

(Doc. 12, att. 10 at 2).

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In the instant case, Petitioner’s claim that the state 

district court judge exceeded his authority under Alabama law to 

preside over a capital murder case in circuit court is based 

purely on state law, despite the fact that Petitioner couched 

the claim in terms of due process. Therefore, Petitioner fails 

to state a cognizable federal habeas claim.

T. Claim Twenty-nine. 

In Claim Twenty-nine, Petitioner asserts that the trial 

court erred in instructing the jury on the elements of the 

capital murder offense with which he was charged. (Doc. 1 at 

48; Doc. 19, att. 3 at 58). Petitioner raised this claim in his 

Rule 32 post-conviction proceedings in state court, and the 

circuit court dismissed the claim as untimely under Alabama Rule 

of Criminal Procedure 32.2(c).25 The Alabama Court of Criminal 

 25 Alabama Rule of Criminal Procedure 32.2(c) provides in 

pertinent part:

Subject to the further provisions 

hereinafter set out in this section, the 

court shall not entertain any petition for 

relief from a conviction or sentence on the 

grounds specified in Rule 32.1(a) and (f), 

unless the petition is filed: (1) In the 

case of a conviction appealed to the Court 

of Criminal Appeals, within one (1) year 

after the issuance of the certificate of 

(Continued)

Case 1:10-cv-00120-CG-B Document 24 Filed 03/08/13 Page 177 of 194
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Appeals affirmed the circuit court’s denial of Rule 32 relief on 

this claim, stating: 

Following a long and tortured procedural 

history, the appellant was convicted of 

capital murder and was sentenced to 

imprisonment for life without the 

possibility of parole. See Tomlin v. State, 

909 So. 2d 290 (Ala. Crim. App. 2004). This 

court issued a certificate of judgment on 

March 18, 2005. In January 2007, the 

appellant filed a Rule 32 petition, 

challenging his conviction, and he 

subsequently amended his petition. After 

the State responded, the circuit court 

summarily dismissed the petition. This 

appeal followed. 

The appellant argues that he is entitled to 

post-conviction relief because: . . . 

(3) the trial court allegedly gave improper 

jury instructions; . . . . 

The appellant filed his petition more than 

one year after this court issued a 

certificate of judgment. Therefore, Claims 

1, 3, and 5 are precluded because they are 

time-barred. See Rule 32.2(c), Ala. R. 

Crim. P. 

(Doc. 12, att. 10 at 1-2).26 

 

judgment by the Court of Criminal Appeals 

under Rule 41, Ala. R. App. P.;. . . . 

26 The circuit court found that three of the five claims 

raised in Petitioner’s Rule 32 petition were time barred, and 

two were without merit. (Doc. 12, att. 10 at 1-2).

Case 1:10-cv-00120-CG-B Document 24 Filed 03/08/13 Page 178 of 194
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As noted above, “[b]efore a federal court may grant habeas 

relief to a state prisoner, the prisoner must exhaust his 

remedies in state court” by giving the state court “a full and 

fair opportunity to resolve federal constitutional claims before 

those claims are presented to the federal courts.” O’Sullivan, 

526 U.S. 838, 842, 845 (1999). A state prisoner’s failure to 

present his claims to the state courts in a timely and proper 

manner results in a procedural default of those claims. Id. at 

848. “In all cases in which a state prisoner has defaulted his 

federal claims in state court pursuant to an independent and 

adequate state procedural rule, federal habeas review of the 

claims is barred unless the prisoner can demonstrate cause for 

the default and actual prejudice as a result of the alleged 

violation of federal law, or demonstrate that failure to 

consider the claims will result in a fundamental miscarriage of 

justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991). 

“Cause” for a procedural default exists if “the prisoner 

can show that some objective factor external to the defense 

impeded counsel’s efforts to comply with the State’s procedural 

rule,” or that the procedural default was the result of 

ineffective assistance of counsel. Murray v. Carrier, 477 U.S. 

478, 488 (1986). To establish “prejudice,” the prisoner 

Case 1:10-cv-00120-CG-B Document 24 Filed 03/08/13 Page 179 of 194
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additionally must show “not merely that the errors at his trial 

created a possibility of prejudice, but that they worked to his

actual and substantial disadvantage, infecting his entire trial 

with error of constitutional dimensions.” United States v. 

Frady, 456 U.S. 152, 170 (1982) (emphasis in original). In the 

absence of a showing of cause and prejudice, the Court may yet 

consider a procedurally defaulted claim if a “fundamental 

miscarriage of justice” has “probably resulted in the conviction 

of one who is actually innocent.” Smith v. Murray, 477 U.S. 

527, 537-38 (1986) (citations omitted).

“In order for a claim to be procedurally defaulted in 

federal court, the state court rule of procedure barring state 

court review must be both ‘independent of the federal question 

and adequate to support the [state-court] judgment.’” Hitchcock 

v. Secretary Dep’t of Corrs., 360 Fed. Appx. 82, 84-85 (11th

Cir. 2010) (unpublished) (citing Cone v. Bell, 556 U.S. 449, 129 

S. Ct. 1769, 1780, 173 L. Ed. 2d 701 (2009); Coleman, 501 U.S. 

at 729). 

In order to be “adequate” to bar 

federal habeas review of a constitutional 

claim, the state procedural rule must be 

“firmly established and regularly followed.” 

James v. Kentucky, 466 U.S. 341, 348-49, 104 

S. Ct. 1830, 80 L. Ed. 2d 346 (1984); Payne 

v. Allen, 539 F. 3d 1297, 1312-13 (11th Cir.

Case 1:10-cv-00120-CG-B Document 24 Filed 03/08/13 Page 180 of 194
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2008). The state’s application of a 

procedural bar “must be faithfully and 

regularly applied, and must not be 

manifestly unfair in its treatment of a 

petitioner’s federal constitutional claim.” 

Card v. Dugger, 911 F. 2d 1494, 1516-17 

(11th Cir. 1990) (citation and quotation 

omitted). The faithful and regular 

application of a firmly established rule 

provides the due process notice necessary 

for the application of the rule to bar 

federal review of a claim raised in 

violation of the rule. Lee, 534 U.S. at 

389, 122 S. Ct. 877. Ordinarily, violation 

of such “firmly established and regularly 

followed” state procedural rules will be 

adequate to foreclose review of the federal 

claim. Id.

Hitchcock, 360 Fed. Appx. at 84-85.

Petitioner complains that Alabama Rule of Criminal 

Procedure 32.2(c) is “illogical” and “unjust” because it 

requires a petitioner to file a state post-conviction petition 

within one year of the issuance of the certificate of judgment

by the Alabama Court of Criminal Appeals, even if there is a 

petition for a writ of certiorari pending at that time in the 

United States Supreme Court. (Doc. 19, att. 3 at 66-68). 

However, Petitioner’s point is unavailing. 

Petitioner’s objection to Rule 32’s filing requirements 

involves a claim under state law, which, as discussed repeatedly 

herein, provides no basis for federal habeas corpus relief. See

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Carroll v. Secretary, DOC, 574 F. 3d 1354, 1365 (11th Cir. 

2009). Rather, this Court’s review of Rule 32.2(c) is limited 

to determining, for purposes of procedural default, whether the 

state procedural rule was firmly established and regularly 

followed. The Eleventh Circuit has answered that question in 

the affirmative. See Siebert v. Allen, 455 F. 3d 1269, 1271 

(11th Cir. 2006) (“ In Hurth, this Court specifically held that 

the Alabama statute of limitation in Rule 32 is firmly 

established and regularly followed for purposes of applying the 

doctrine of procedural default.”). Therefore, Petitioner’s 

claim is defaulted in state court pursuant to an independent and 

adequate state procedural ground and is barred in this Court 

absent a showing of cause and prejudice or a fundamental

miscarriage of justice. Because Petitioner has failed to even 

allege cause and prejudice related to his procedural default of 

this claim, and because there is no basis for finding a 

fundamental miscarriage of justice, review of Petitioner’s

habeas Claim 29 is barred in this Court, and that claim is due 

to be dismissed. 

U. Claim Thirty. 

In Petitioner’s final claim, he asserts that his sentence 

of life imprisonment without the possibility of parole was 

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“illegal” because the aggravating circumstance on which it was 

based, i.e., intentionally causing the death of two or more 

persons by one act or pursuant to one scheme, was not enumerated 

in Alabama Code § 13-11-6 (repealed), which, at the time of the 

murders in 1977, contained a list of aggravating circumstances 

upon which the death penalty or life imprisonment without the 

possibility of parole could be imposed. (Doc. 1 at 50; Doc. 19, 

att. 3 at 75). Petitioner presented this claim in his Rule 32 

proceedings in state court, and the Alabama Court of Criminal 

Appeals rejected the argument, finding that the trial court 

properly sentenced Petitioner pursuant to the mandate of the 

Alabama Supreme Court issued in Ex parte Tomlin, 909 So. 2d 283 

(Ala. 2003). The Alabama Court of Criminal Appeals stated:

Finally, with regard to Claim 4 [that the 

trial court improperly sentenced Petitioner 

to imprisonment for life without the 

possibility of parole], after this court 

affirmed the appellant’s conviction and 

sentence of death, the Alabama Supreme Court 

“reverse[d] the judgment of the Court of 

Criminal Appeals as to Tomlin’s sentence and 

remand[ed] the case for that court to 

instruct the trial court to resentence 

Tomlin, following the jury’s recommendation 

of life imprisonment without the possibility 

of parole.” See Tomlin v. State, 909 So. 2d 

283, 287 (Ala. 2003). On remand, the trial 

court complied with the Alabama Supreme 

Court’s instructions and sentenced the 

appellant to imprisonment for life without 

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the possibility of parole. See Tomlin v. 

State, 909 So. 2d 290 (Ala. Crim. App. 

2004). Therefore, the appellant’s argument 

is without merit.

 (Doc. 12, att. 10 at 2-3). 

The Court agrees with the Alabama Court of Criminal Appeals 

that the trial court properly sentenced Petitioner to life in 

prison without the possibility of parole based on his conviction 

under Alabama Code, § 13-11-2(a)(10). In Ex parte Kyzer, 399 

So. 2d 330, 332-34 (Ala. 1981), the Alabama Supreme Court 

settled the question whether a defendant convicted under Alabama 

Code, § 13-11-2(a)(10) of “first degree murder ‘wherein two or 

more human beings are intentionally killed by the defendant by 

one or a series of acts,’” could be sentenced to death or, 

alternatively, life in prison without the possibility of 

parole,27 despite the fact that the aggravating circumstance was 

 27 As discussed above, following Petitioner’s conviction in 

his fourth trial of the capital murders of Richard Brune and 

Cheryl Moore, the trial judge overrode the jury’s recommendation 

of life imprisonment without the possibility of parole and 

sentenced Petitioner to death. However, in Ex parte Tomlin, 909 

So. 2d 283, 287 (Ala. 2003), the Alabama Supreme Court ordered 

the Alabama Court of Criminal Appeals to remand the case to the 

trial court with instructions to vacate Petitioner’s death 

sentence and to resentence Petitioner to life imprisonment 

without the possibility of parole based upon its finding that 

the mitigating circumstance of the jury’s unanimous 

(Continued)

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not enumerated in the list of aggravating circumstances found in 

Alabama Code, § 13-11-6. The court stated:

This case presents in purest form an anomaly 

in Alabama’s Death Penalty Statute. The 

legislature, in delineating the fourteen 

offenses for which the death penalty could 

be imposed, included the offense for which 

Kyzer was charged and convicted, viz, 

“Murder in the first degree wherein two or 

more human beings are intentionally killed 

by the defendant by one or a series of 

acts,” (§ 13-11-2(a)(10)), but failed to 

provide a corresponding “aggravating 

circumstance” in § 13-11-6.

. . . [I]t is clear that the legislature 

intended to punish capitally persons 

convicted of the aggravated offenses set 

forth in § 13-11-2, unless, of course, at 

the sentencing hearing the trial judge, 

after weighing the aggravating and 

mitigating circumstances, decided to refuse 

to accept the jury’s sentence of death.

. . . If a defendant is convicted of “murder 

in the first degree wherein two or more 

human beings are intentionally killed,” and 

if the jury, after a hearing conducted in 

accordance with the principles set out in 

Beck, fixes the penalty at death, the trial 

judge, if convinced that the “aggravation” 

averred in the indictment “that two or more 

human beings were intentionally killed by 

the defendant by one or a series of acts” 

 

recommendation of life imprisonment without parole outweighed 

the aggravating circumstance of first degree murder wherein two 

persons were killed. 

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outweighs the mitigating circumstances, may 

impose a sentence of death by setting forth 

in writing, as required by § 13-11-4, his 

findings, even though the “aggravating 

circumstance” is not “enumerated in § 13-11-

6.” The jury could make the same finding at 

its sentence hearing mandated by Beck.

Kyzer, 399 So. 2d at 334-38.

In Magwood v. Patterson, 130 S. Ct. 2788, 2793, 177 L. Ed. 

2d 592 (2010), the United States Supreme Court recognized the 

holding in Kyzer, stating:

As relevant here, Kyzer did away with the

prior Alabama rule that an aggravating 

component of a capital felony could not 

double as an aggravating factor supporting a 

capital sentence. In Kyzer, the defendant 

had been sentenced to death for the 

intentional murder of “two or more human 

beings” under § 13-11-2(a)(10). See 399 So.

2d, at 332. The crime of murder, so 

defined, was aggravated by its serial 

nature, just as Magwood’s crime of murder, 

as defined under § 13-11-2(a)(5), was 

aggravated by the fact that he killed an onduty sheriff because of the sheriff’s jobrelated acts. In Kyzer, the Alabama Supreme 

Court ultimately remanded for a new trial, 

but in order to guide the lower court on 

remand, addressed whether the aggravation in 

the charged crime, See § 13-11-2(a)(10), was 

sufficient to impose a sentence of death 

even without a finding of any “aggravating 

circumstance” enumerated in § 13-11-6. See

id., at 337. The court ruled that if the 

defendant was convicted under § 13-11-

2(a)(10), “the jury and the trial judge at 

the sentencing hearing [may] find the 

aggravation averred in the indictment as the 

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aggravating circumstance, even though the 

aggravation is not listed in § 13-11-6 as an 

aggravating circumstance.” Id., at 339 

(internal quotation marks omitted).

Magwood, 130 S. Ct. at 2793 n.3.28 Based on the foregoing, 

Petitioner’s argument that his sentence was “illegal” because

the aggravating circumstance on which his capital conviction was 

based was not enumerated in Alabama Code, § 13-11-6, is without 

merit. 

Accordingly, the Court finds that the decision of the 

Alabama Court of Criminal Appeals was a reasonable determination 

of the facts in light of the evidence presented, see 28 U.S.C. 

§ 2254(d)(2), and that the Alabama Court of Criminal Appeals 

rendered a decision that is neither contrary to, nor an 

unreasonable application of, clearly established federal law. 

See 28 U.S.C. § 2254(d)(1). Therefore, Petitioner’s habeas 

Claim 30 is due to be denied.

 28 The Magwood court further noted: “In Jackson v. State, 

the Alabama Court of Criminal Appeals held that Kyzer supported 

a death sentence for a defendant who was convicted for an 

offense committed before Kyzer was decided [in 1981] but was 

resentenced after that decision. 501 So. 2d 542, 544 (1986).” 

Magwood, 130 S. Ct. at 2794 n.6. Petitioner in the present case 

likewise was convicted of murders committed before Kyzer was 

decided and resentenced to life in prison without the 

possibility of parole after Kyzer was decided. 

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For each of the reasons set forth above, the Court finds 

that Petitioner’s habeas petition is due to be denied in its 

entirety. 

CERTIFICATE OF APPEALABILITY

Pursuant to Rule 11(a) of the Rules Governing § 2254 

Proceedings, the undersigned recommends that a certificate of 

appealability in this case be denied. 28 U.S.C. foll. § 2254, 

Rule 11(a) (“The district court must issue or deny a certificate 

of appealability when it enters a final order adverse to the 

applicant.”). The habeas corpus statute makes clear that an 

applicant is entitled to appeal a district court’s denial of his 

habeas corpus petition only where a circuit justice or judge 

issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). 

A certificate of appealability may issue only where “the 

applicant has made a substantial showing of the denial of a 

constitutional right.” 28 U .S.C. § 2253(c)(2). Where a habeas 

petition is being denied, in part, on procedural grounds without 

reaching the merits of an underlying constitutional claim, “a 

COA should issue [only] when the prisoner shows ... that jurists 

of reason would find it debatable whether the petition states a 

valid claim of the denial of a constitutional right and that 

jurists of reason would find it debatable whether the district 

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court was correct in its procedural ruling.” Slack v. McDaniel, 

529 U.S. 473, 484 (2000). Where a habeas petition is being 

denied on the merits of an underlying constitutional claim, a 

certificate of appealability should issue only when the 

petitioner demonstrates “that reasonable jurists would find the 

district court’s assessment of the constitutional claims 

debatable or wrong.” Id. (“To obtain a COA under § 2253(c), a 

habeas prisoner must make a substantial showing of the denial of 

a constitutional right, a demonstration that, under Barefoot [v. 

Estelle, 463 U.S. 880, 893 (1983)], includes showing that 

reasonable jurists could debate whether (or, for that matter, 

agree that) the petition should have been resolved in a 

different manner or that the issues presented were adequate to 

deserve encouragement to proceed further.”) (internal quotation 

marks omitted); accord Miller-El v. Cockrell, 537 U.S. 322, 336 

(2003).

None of Petitioner’s claims warrants the issuance of a 

Certificate of Appealability in this case. For the reasons 

discussed above with respect to Petitioner’s claims, reasonable 

jurists could not debate whether any of his claims should be 

resolved in a different manner or were adequate to deserve 

encouragement to proceed further on the merits. The 

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recommendation that these claims be denied is based on the 

straightforward application of clear Circuit precedent, and no 

reasonable jurist could differ on the appropriate disposition of 

the claims on the record presented. It is thus recommended that 

the Court deny any request for a Certificate of Appealability. 

Because Petitioner is not entitled to a Certificate of 

Appealability, any request for leave to appeal in forma pauperis

is likewise due to be denied.29

 29 The guidelines for proceeding in forma pauperis are set 

forth in 28 U.S.C. § 1915. An appeal may not be taken in forma 

pauperis if the trial court certifies in writing that the appeal 

is not taken in good faith. 28 U.S.C. § 1915(a)(3); See Fed. R. 

App. P. 24(a)(3)(A); Lee v. Clinton, 209 F. 3d 1025, 1026 (7th 

Cir. 2000) (concluding that “good faith” is “an objective 

concept” and that “not taken in good faith” is “a synonym for 

frivolous”); DeSantis v. United Techs., Corp., 15 F. Supp. 2d 

1285, 1288-89 (M.D. Fla. 1998) (stating that good faith “must be 

judged by an objective, not a subjective, standard” and that an 

appellant “demonstrates good faith when he seeks appellate 

review of any issue that is not frivolous”). An appeal filed in 

forma pauperis is frivolous if it appears that the appellant 

“has little or no chance of success,” meaning that the “factual 

allegations are ‘clearly baseless’ or that the legal theories 

are ‘indisputably meritless.’” Carroll v. Gross, 984 F. 2d 392, 

393 (11th Cir. 1993) (citations omitted). For the reasons 

previously stated in addressing the Certificate of 

Appealability, the undersigned concludes that an appeal in this 

case would be without merit and would not be taken in objective 

good faith. Thus, Petitioner is neither entitled to a 

Certificate of Appealability nor to appeal in forma pauperis.

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CONCLUSION

Based on the foregoing, it is the opinion of the 

undersigned Magistrate Judge that Petitioner’s constitutional

rights were not violated in this case. Therefore, it is 

recommended that Petitioner’s petition for a writ of habeas 

corpus be denied, that this action be dismissed, and that 

judgment be entered in favor of the Respondent, Tony Patterson, 

and against the Petitioner, Phillip Wayne Tomlin. It is further 

recommended that any motion for a Certificate of Appealability 

or for permission to appeal in forma pauperis be denied. 

Petitioner’s Motion for an Evidentiary Hearing (Doc. 20) 

likewise is due to be denied. 

The attached sheet contains important information regarding 

objections to this Report and Recommendation.

DONE this 8th day of March, 2013.

 /s/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

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MAGISTRATE JUDGE’S EXPLANATION OF PROCEDURAL RIGHTS

AND RESPONSIBILITIES FOLLOWING RECOMMENDATION

AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

1. Objection. Any party who objects to this 

recommendation or anything in it must, within fourteen days of 

the date of service of this document, file specific written 

objections with the clerk of court. Failure to do so will bar a 

de novo determination by the district judge of anything in the 

recommendation and will bar an attack, on appeal, of the factual 

findings of the magistrate judge. See 28 U.S.C. § 636(b)(1)(C); 

Lewis v. Smith, 855 F. 2d 736, 738 (11th Cir. 1988). The 

procedure for challenging the findings and recommendations of 

the magistrate judge is set out in more detail in SD ALA LR 72.4 

(June 1, 1997), which provides, in part, that:

A party may object to a recommendation entered by a 

magistrate judge in a dispositive matter, that is, a 

matter excepted by 28 U.S.C. § 636(b)(1)(A), by filing 

a “Statement of Objection to Magistrate Judge’s 

Recommendation” within ten days30 after being served 

with a copy of the recommendation, unless a different 

time is established by order. The statement of 

 30 Effective December 1, 2009, the time for filing written 

objections was extended to “14 days after being served with a 

copy of the recommended disposition[.]” Fed. R. Civ. P. 

72(b)(2).

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objection shall specify those portions of the 

recommendation to which objection is made and the 

basis for the objection. The objecting party shall 

submit to the district judge, at the time of filing 

the objection, a brief setting forth the party’s 

arguments that the magistrate judge’s recommendation 

should be reviewed de novo and a different disposition 

made. It is insufficient to submit only a copy of the 

original brief submitted to the magistrate judge, 

although a copy of the original brief may be submitted 

or referred to and incorporated into the brief in 

support of the objection. Failure to submit a brief 

in support of the objection may be deemed an 

abandonment of the objection.

A magistrate judge’s recommendation cannot be appealed 

to a Court of Appeals; only the district judge’s order 

or judgment can be appealed.

2. Opposing party’s response to the objection. Any 

opposing party may submit a brief opposing the objection within 

fourteen (14) days of being served with a copy of the statement 

of objection. Fed. R. Civ. P. 72; SD ALA LR 72.4(b). 

3. Transcript (applicable where proceedings tape 

recorded). Pursuant to 28 U.S.C. § 1915 and Fed. R. Civ. P. 

72(b), the magistrate judge finds that the tapes and original 

records in this action are adequate for purposes of review. Any 

party planning to object to this recommendation, but unable to 

pay the fee for a transcript, is advised that a judicial 

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determination that transcription is necessary is required before 

the United States will pay the cost of the transcript.

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