United States Court of Appeals
For the Eleventh Circuit.
Billy Wayne WALDROP, Petitioner-Appellant,
Ronald E. JONES, Respondent-Appellee.
Feb. 26, 1996.
Appeal from the United States
District Court for the Northern District of Alabama.
(No. CV 90-H-1845-S), James Hughes Hancock, Judge.
Before KRAVITCH, EDMONDSON and
COX, Circuit Judges.
COX, Circuit Judge:
Billy Wayne Waldrop was convicted
in Talladega County, Alabama, for murder and
sentenced to death. He appeals the denial of relief
on his 28 U.S.C. § 2254 petition for a writ of
habeas corpus. We affirm.
I. FACTS AND PROCEDURAL HISTORY
On the night of June 2-3, 1982,
Thurman Macon Donahoo was robbed, beaten, shot, and
left for dead in his house as it burned to the
ground. Investigators found his body, charred almost
beyond recognition, during their investigation of
the fire. Suspicion about the identity of the
perpetrator focused almost immediately upon Billy
In July 1982 Waldrop was arrested
in California on a charge of driving under the
influence of alcohol. He waived extradition and was
returned to Alabama based on a warrant issued by the
Calhoun County Circuit Court charging him with
receipt of stolen property. Apparently the property
in question was that taken from Donahoo's home on
the night of his murder. Although Waldrop was
returned to Alabama on the basis of a Calhoun County
warrant, he was taken to Talladega County on August
19, 1982. While incarcerated there, Waldrop gave two
statements implicating himself in the Donahoo
robbery and murder.
In December 1982 Waldrop was
indicted on six counts of capital murder. The first
four counts of the indictment charged variations of
murder during the course of a first degree robbery.
See Ala.Code § 13A-5-40(a)(2). Counts five
and six charged murder during two separate types of
first degree burglary. See Ala.Code §
On February 18, 1983, the
petitioner was found guilty of the murder of Donahoo.
On the same day, the jury unanimously recommended
the imposition of the death penalty. After a
separate sentencing hearing on March 22, 1983, the
trial court sentenced the petitioner to death. On
direct appeal, the Alabama Court of Criminal Appeals
affirmed the conviction and sentence and denied
rehearing. Waldrop v. State, 459 So.2d 953 (Ala.Crim.App.1983).
The Alabama Supreme Court affirmed, Ex parte
Waldrop, 459 So.2d 959 (Ala.1984), and the
United States Supreme Court denied certiorari,
Waldrop v. Alabama, 471 U.S. 1030 , 105 S.Ct.
2050, 85 L.Ed.2d 323 (1985).
In June 1985 Waldrop filed a
petition for writ of error coram nobis in the
Circuit Court of Talladega County. After an
evidentiary hearing, the trial judge denied coram
nobis relief. The Alabama Court of Criminal Appeals
affirmed the denial of coram nobis relief.
Waldrop v. State, 523 So.2d 475 (Ala.Crim.App.1987).
Both the Alabama Supreme Court and the United States
Supreme Court denied certiorari. Id.; Waldrop v.
Alabama, 488 U.S. 871 , 109 S.Ct. 184, 102 L.Ed.2d
Waldrop filed a second petition
for relief in November 1988 to vacate and set aside
his conviction and death sentence pursuant to Rule
20 of the Alabama (Temporary) Rules of Criminal
Procedure. The Circuit Court of Talladega County
denied relief, and the Court of Criminal Appeals
affirmed without opinion. Waldrop v. State,
564 So.2d 115 (Ala.Crim.App.1990). Waldrop did not
file a petition for writ of certiorari with the
Alabama Supreme Court.
In September 1990 Waldrop filed
the present petition for a writ of habeas corpus in
the Northern District of Alabama. He later filed an
amended petition, and in May 1991 filed a second
amended petition. After construing the State's
answer as a motion for summary judgment, the
district court granted the State's motion and denied
the petition for habeas relief. Waldrop v.
Thigpen, 857 F.Supp. 872 (N.D.Ala.1994).
II. ISSUES ON APPEAL
Waldrop raises several issues on
appeal. First, he contends that the district court
erred in denying him relief on his claim that his
counsel was ineffective for failing to present
mitigating evidence during the penalty phase of the
trial. Second, Waldrop attacks the district court's
conclusion that he procedurally defaulted his claim
based on Cage v. Louisiana, 498 U.S. 39 , 111
S.Ct. 328, 112 L.Ed.2d 339 (1990), that the jury
instruction defining "reasonable doubt" violated the
Due Process Clause of the Fourteenth Amendment.
Finally, Waldrop challenges the district court's
conclusion that his confession was properly admitted
and not involuntary under the Fourteenth Amendment
or obtained in violation of his Sixth Amendment
right to counsel. 
A. Ineffective assistance of
Waldrop contends that the
district court erred in finding that his lawyers
were not ineffective and that Waldrop was not
prejudiced by their failure to present allegedly
mitigating evidence during the sentencing phase of
his trial. Waldrop contends that his counsel failed
to adequately investigate his background, thereby
depriving the jury and judge of evidence of his
violent and abusive family background, mental
instability, and neurological damage from a gunshot
wound inflicted in November 1981. The State asserts
that the district court correctly concluded that
Waldrop showed neither ineffective assistance of
counsel nor prejudice because of his counsel's
failure to introduce this evidence.
Relying on the findings of the
coram nobis court, the district court concluded that,
although Waldrop's trial counsel's investigation of
mitigating factors was "far from the most thorough,"
it was professionally reasonable. Waldrop v.
Thigpen, 857 F.Supp. at 916. The district court
also concluded that Waldrop was not prejudiced by
his counsel's failure to introduce this allegedly
mitigating evidence. Id. at 919.
An ineffective assistance of
counsel claim is a mixed question of law and fact,
subject to de novo review. Strickland v.
Washington, 466 U.S. 668, 698 , 104 S.Ct. 2052,
2070, 80 L.Ed.2d 674 (1984). To prove ineffective
assistance of counsel, a petitioner must prove that
counsel's performance was deficient and that the
deficiency prejudiced the defendant. Id. at
687, 104 S.Ct. at 2064. To satisfy the prejudice
prong, a petitioner "must show that there is a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding
would have been different. A reasonable probability
is a probability sufficient to undermine confidence
in the outcome." Mills v. Singletary, 63 F.3d
999, 1020 (11th Cir.1995) (quoting Strickland,
466 U.S. at 694 , 104 S.Ct. at 2068) (internal
quotation marks omitted).
When challenging a death sentence,
a petitioner must show that "there is a reasonable
probability that, absent the errors, the sentencer
... would have concluded that the balance of
aggravating and mitigating circumstances did not
warrant death." Strickland, 466 U.S. at 695 ,
104 S.Ct. at 2069. Because a petitioner must satisfy
both prongs of the Strickland test, a failure
to prove either provides a sufficient basis to deny
relief on the ineffective assistance claim. Id.
at 697, 104 S.Ct. at 2069.
Waldrop alleges that certain
evidence about his background would have changed his
sentence if it had been offered by his counsel. But
the coram nobis court and the district court
disagreed, finding that much of the evidence Waldrop
offered was not credible and concluding that none of
it would have altered Waldrop's sentence. The State
urges that those findings are justified by the
record. The state court's findings of fact are
entitled to a presumption of correctness and are
given deference if fairly supported by the record of
the coram nobis hearing. 28 U.S.C. § 2254(d); see
also Strickland, 466 U.S. at 698 , 104 S.Ct. at
Waldrop first would have had his
counsel introduce evidence of his allegedly abusive
and traumatic childhood. He claims that as a child,
he endured violent physical and sexual abuse.
Waldrop testified that his father, uncle, and half-sister
all sexually abused him, and he alleges that these
experiences caused long-lasting effects on his
behavior. See Waldrop v. State, 523 So.2d at
483-84. But the evidence presented at the coram
nobis hearing about Waldrop's childhood was
contradictory and at times supported by nothing more
than Waldrop's own testimony. See id. The
state court found that the petitioner was not
sexually abused as a child, id., and it also
concluded that Waldrop failed to establish that he
suffered any lasting negative effects from the
alleged physical abuse, id. at 483. These
findings are fairly supported by the record. The
evidence about Waldrop's childhood, if presented,
would not have weighed heavily as a mitigating
Waldrop also contends that his
counsel should have offered evidence of the
neurological damage he allegedly suffers from a
gunshot wound to his brain in 1981. Waldrop
testified that the wound has caused lasting effects
on his behavior. His mother, as well as several
other family members, corroborated his testimony,
and they stated that he had suffered seizures on
several occasions. Id. at 484-85. Dr. Zeiger,
Waldrop's treating neurosurgeon, contradicted
Waldrop's evidence; he testified that the wound had
healed well and that there was no evidence of any
resulting seizure activity. Dr. Zeiger also stated
that the damage to Waldrop's frontal lobe did not
affect either his mental or physical functioning.
The coram nobis court credited the doctor's
testimony and found that Waldrop suffered no
behavioral effects as a result of the gunshot wound.
Id. at 485. This finding is fairly supported
by the record; thus, evidence of the gunshot wound
would not constitute mitigation.
Waldrop also claims that evidence
concerning his history of excessive alcohol and drug
use constituted a mitigating factor. He alleges that
the combination of his anti-seizure medication,
which he took sporadically, and several illicit
drugs altered his behavior. Waldrop also claims that
he was severely depressed and had attempted suicide
at the time of Donahoo's murder. The district court
found that these facts, if shown, would not
constitute evidence in mitigation of the death
penalty. Waldrop v. Thigpen, 857 F.Supp. at
919. We agree; indeed, admission of some of this
evidence might have been harmful to Waldrop's case.
In sum, the evidence that Waldrop
claims his counsel should have introduced would not
have changed the outcome in his case. We agree with
both the coram nobis court and the district court
that Waldrop has not demonstrated that his counsel's
failure to present the evidence in question altered
the outcome of the sentencing phase of his trial. "Given
the [ ] aggravating factors, there is no reasonable
probability that the omitted evidence would have
changed the conclusion that the aggravating
circumstances outweighed the mitigating
circumstances and, hence, the sentence imposed."
Strickland, 466 U.S. at 700 , 104 S.Ct. at 2071.
Waldrop's claim must fail because he was not
prejudiced by any ineffective assistance of counsel
that may have occurred.
B. The jury instruction on
Waldrop next challenges the trial
court's jury instruction that "[a] reasonable doubt
means an actual, substantial doubt."
Now, you will want to know what a
reasonable doubt is. When I say the state is under
the burden of proving guilt beyond a reasonable
doubt and to a moral certainty, that does not mean
that the state must prove an alleged crime beyond
every imaginable or speculative doubt, or beyond all
possibility of mistake, because that would be
A reasonable doubt means an
actual, substantial doubt. It could arise out of the
testimony in the case or a reasonable doubt could
arise from a lack of testimony in the case. It is a
doubt for which a reason can be assigned, and the
expression "to a moral certainty" means practically
the same thing as "beyond a reasonable doubt"
because if you are convinced to the point where you
no longer have a reasonable doubt, then you are
convinced to a moral certainty.
(Trial Tr., R. 4-16 at 576-77.)
On appeal, Waldrop also
challenges the portion of the instruction in which
the trial court equates proof beyond a reasonable
doubt with proof to a moral certainty. However, he
did not present this claim in his amended petition
in the district court, ( see R. 2-31 at 34-35
(Second Am.Pet. WW 87-90)), and the district court
did not address the issue. We decline to address an
issue not presented to the district
court but raised for the first
time on appeal. See Depree v. Thomas, 946
F.2d 784, 793 (11th Cir.1991). He relies on Cage,
498 U.S. at 39 , 111 S.Ct. at 328, to support
his argument that the use of the phrase "actual,
substantial doubt" to define "reasonable doubt"
allowed a finding of guilt based upon a degree of
proof below that required by the Due Process Clause
of the Fourteenth Amendment.
The State contends, and the
district court concluded, that the Cage claim
is procedurally defaulted and therefore cannot be
raised in federal court. Waldrop counters that his
attack on the instruction is not defaulted because
Alabama courts do not strictly and regularly apply
their procedural default rules in cases such as his;
thus, he argues, there are no adequate state grounds
to bar federal review of his claim. Waldrop further
argues that even if the claim is procedurally
defaulted, there is cause to excuse the default.
A federal court will not address
a federal question on collateral review of a state
conviction if a state court's denial of relief is
based on adequate and independent state grounds.
Harris v. Reed, 489 U.S. 255, 261 , 109 S.Ct.
1038, 1042, 103 L.Ed.2d 308 (1989). Here, the state
court has not passed upon Waldrop's challenge to the
trial court's definition of reasonable doubt because
he first made this challenge in his federal habeas
petition. In such a case, the federal court should
itself determine whether the claim would be
procedurally defaulted under state rules
constituting an adequate and independent state
ground for denial of relief. See Teague v. Lane,
489 U.S. 288, 298-99 , 109 S.Ct. 1060, 1068-69,
103 L.Ed.2d 334 (1989).
Alabama law precludes post-conviction
relief for claims which could have been but were not
raised on direct appeal. Ala.R.Crim.P. 32.2(a)(5).
Under Rule 32, this jury instruction claim should
have been raised on direct appeal. Because it was
not, it has been defaulted. Thompson v. State,
581 So.2d 1216, 1218 (Ala.Crim.App.1991),
cert. denied, 502 U.S. 1030 , 112 S.Ct. 868, 116
L.Ed.2d 774 (1992); Weeks v. State, 568 So.2d
864, 871 (Ala.Crim.App.1989), cert. denied,
498 U.S. 882 , 111 S.Ct. 230, 112 L.Ed.2d 184
Waldrop acknowledges that Alabama
law requires that challenges to jury instructions be
raised on direct appeal, but he argues that Alabama
courts permit the assertion of claims otherwise
defaulted if the claim is based upon a new rule of
law that could not have been anticipated. Alabama's
procedural default rule, Waldrop argues, is thus
unclear, with the result that the procedural default
rule is not strictly and regularly applied.
In Ex Parte Beavers, 598
So.2d 1320, 1324-25 (Ala.1992), the court
acknowledged that a failure to object at trial may
not, under Alabama law, bar a later post-conviction
challenge to a jury instruction based upon a
subsequent Supreme Court decision announcing a "clear
break" with past precedent. In the same decision,
however, the court rejected the argument that
Cage was such a decision.
Waldrop cites no Alabama
authority supporting his argument that Alabama does
not regularly and strictly apply its rule that
challenges to jury instructions must be raised on
direct appeal. Moreover, Waldrop cites no cases to
support his argument that exceptions to this rule
under Alabama law are not strictly and regularly
applied. We hold, therefore, that Waldrop's failure
to challenge the reasonable doubt instruction on
direct appeal is an adequate and independent state
ground for denial of relief on his claim.
Waldrop also contends that the
futility of challenging the instruction in state
court is cause to excuse his failure to raise the
issue on direct appeal. He argues that Alabama
courts have approved similar jury instructions on
reasonable doubt, e.g., Beavers, 598 So.2d at
1324-25 (stating that Cage was merely
application of settled precedent to specific factual
context), and, therefore, it would have been futile
to raise this issue earlier.
According to the Supreme Court,
the "futility of presenting an objection to the
state courts cannot alone constitute cause for a
failure to object at trial." Engle v. Isaac,
456 U.S. 107, 130 , 102 S.Ct. 1558, 1573, 71 L.Ed.2d
783 (1982). This reasoning applies equally to
Waldrop's failure to raise the issue on direct
appeal. Even if it was unlikely that his claim would
have been well-received in state court, Waldrop
should have presented it. See id.
Waldrop also contends that the
procedural default should be excused because Cage
represents a change in the law. He argues that,
due to the novelty of Cage, he could not have
been expected to anticipate that the trial court's
definition of reasonable doubt would be disapproved
until Cage was decided in 1990. The district
court concluded that "the basic legal principles
were available to [Waldrop] to assert this claim at
least at the time of his 1988 Rule 20 petition."
Waldrop v. Thigpen, 857 F.Supp. at 935.
Second, Rule 32.2(c) bars a
petition for relief based on a constitutional claim
if the petition is filed after the two-year statute
of limitations period has run. Ala.R.Crim.P.
We conclude that Waldrop had at
his disposal the essential legal tools with which to
construct his claim in time to present the claim to
state court on direct appeal. We have held that
Cage was a "new rule" under Teague, 489
U.S. at 288 , 109 S.Ct. at 1060, but under Teague
a rule is "new" if it is not dictated by
prior precedent. On the other hand, a rule is
"novel," and therefore cause for a procedural
default, only if the petitioner did not have the
legal tools to construct the claim before the rule
was issued. See Dugger v. Adams, 489 U.S.
401, 409-10 , 109 S.Ct. 1211, 1216-17, 103 L.Ed.2d
435 (1989). As the district court noted, "[i]t is
plainly possible that the legal elements of a claim
can be available and reasonably recognizable without
being dictated by prior precedent."
Waldrop v. Thigpen, 857 F.Supp. at 934 n. 42.
In fact, before Waldrop's trial,
many defendants were attacking instructions which
defined "reasonable doubt" in terms very similar to
the instruction used in Waldrop's case. Such claims
were percolating in both state and federal courts at
the time of Waldrop's trial. See, e.g., United
States v. Muckenstrum, 515 F.2d 568, 570-71 (5th
Cir.) (criticizing instruction that defined "reasonable
doubt" as one that "must be substantial" and more
than "a mere possible doubt"), cert. denied,
423 U.S. 1032 , 96 S.Ct. 564, 746 L.Ed.2d 406
(1975); Bryant v. State, 348 So.2d 1136, 1138
(Ala.Crim.App.) (rejecting attack on instruction
defining "reasonable doubt" as a "real and
substantial doubt"), cert. denied sub nom. State
ex rel. Attorney General, 348 So.2d 1138
(Ala.1977); Hall v. State, 306 So.2d 290, 293
(Ala.Crim.App.1974) (same), cert. denied, 293
Ala. 757, 306 So.2d 294 (1975).
The existence of such cases is
strong evidence that a "reasonable basis" for
Waldrop's attack on the reasonable-doubt instruction
existed before Cage. See Reed v. Ross, 468
U.S. 1, 13-20 , 104 S.Ct. 2901, 2909-12, 82 L.Ed.2d
1 (1984) (stating that novelty can excuse default if
no "reasonable basis" for claim previously existed;
discussing what constitutes a "reasonable basis");
James v. Cain, 50 F.3d 1327, 1331 (5th Cir.)
(stating that novelty is less likely an excuse where
other defendants have contemporaneously perceived
and litigated similar issues) (citing Engle,
456 U.S. at 134 , 102 S.Ct. at 1575), cert.
denied, --- U.S. ----, 116 S.Ct. 310, 133 L.Ed.2d
213 (1995). Waldrop, therefore, has not demonstrated
cause for his default.
C. Involuntary confession
While held in the Talladega
County jail, Waldrop confessed on September 15,
1982, and again on October 18, 1982, to
participating in the robbery and murder of Donahoo.
Waldrop challenges his conviction based on the
admission at trial of the October 18 confession. He
argues that because he was detained in the Talladega
County jail without probable cause and without
presentation to a judicial officer for four months,
his confession was coerced and therefore obtained in
violation of the Due Process Clause of the
Fourteenth Amendment. 
On review of a habeas petition,
we make an independent assessment of the
voluntariness of the confession. Miller v. Fenton,
474 U.S. 104, 110 , 106 S.Ct. 445, 449, 88 L.Ed.2d
405 (1985). The subsidiary and historical facts
found by the state trial court, however, are
presumed correct under 18 U.S.C. § 2254(d). Id.
at 112, 106 S.Ct. at 450. When a state court
fails to make explicit findings, a state court's
denial of the claim "resolves all conflicts in
testimony bearing on that claim against the criminal
defendant." Culombe v. Connecticut, 367 U.S.
568, 604-05 , 81 S.Ct. 1860, 1880, 6 L.Ed.2d 1037
To determine whether a confession
is voluntary, the court must assess "the totality of
all the surrounding circumstances-both the
characteristics of the accused and the details of
the interrogation." Schneckloth v. Bustamonte,
412 U.S. 218, 226 , 93 S.Ct. 2041, 2047, 36 L.Ed.2d
854 (1973). The inquiry focuses on whether there has
been any "police overreaching." Colorado v.
Connelly, 479 U.S. 157, 163 , 107 S.Ct. 515,
520, 93 L.Ed.2d 473 (1986). Factors to be considered
include the "[accused's] lack of education, or his
low intelligence, the lack of any advice to the
accused of his constitutional rights, the length of
detention, the repeated and prolonged nature of the
questioning, and the use of physical punishment such
as the deprivation of food or sleep." Schneckloth,
412 U.S. at 226 , 93 S.Ct. at 2047 (citations
The trial court held an
evidentiary hearing on Waldrop's oral motion to
suppress the October 18, 1982, confession.
 In denying the
motion to suppress, the court implicitly found that
(1) Waldrop had been advised of and understood his
Miranda rights before making his statement;
(2) Waldrop asserted that he knew the rights better
than the officers did; (3) he wished to talk to the
authorities; (4) he asserted that he did not want or
need a lawyer; (5) he never requested counsel; (6)
no threats or promises were made to induce Waldrop's
statement; (7) the statement had not been induced by
telling Waldrop that it was necessary to prepare him
for a polygraph examination; and (8) Waldrop's
visiting privileges had been suspended, not as an
inducement to confess, but because weapons were
found on persons attempting to visit him at the jail.
Waldrop v. Thigpen, 857 F.Supp. at 894-895 (summarizing
the evidence at the hearing and the implicit factual
findings of the trial court).
 The court made
similar factual findings during the hearing on
Waldrop's coram nobis petition. See Waldrop v.
State, 523 So.2d at 487-88.
The coram nobis court
additionally found that (1) Waldrop was never
allowed conjugal visits and thus was not told that
these visits would cease until he confessed; (2)
Waldrop was held in Talladega County on the Calhoun
County receiving stolen property warrant; (3) this
warrant was obtained because there was sufficient
evidence to prove the crime at that point and not to
hold petitioner while the Donahoo investigation
continued; (4) the sheriff did not know that Waldrop
needed to go to Calhoun County and would have
returned Waldrop had he known; and (5) Waldrop never
requested that he be returned to Calhoun County but
preferred to remain in Talladega County. Id.
After reviewing the evidence, we believe that these
factual findings are fairly supported by the record.
Waldrop argues that his lengthy
detention without a judicial presentment or counsel
in a county in which no charge lay against him
renders his confession involuntary. Waldrop had been
held in the Talladega County jail for less than a
month when he made the September statement. Although
he alleges that he was interrogated ten times before
making the September statement, "there is nothing in
the record to indicate that any single session was
exhaustingly lengthy. There is no evidence that the
police used any physical force against the
petitioner or that they threatened or harassed him
in any way." Waldrop v. Thigpen, 857 F.Supp.
at 896. Nothing suggests that Waldrop was deprived
of food or sleep. He was not isolated from others,
but was allowed visitors until the visitors were
found with weapons.
Waldrop was held pursuant to a
valid arrest warrant. He was not presented to a
judicial official before he made his statements, but
because he had been "arrested pursuant to a warrant
issued by a [judicial official] on a showing of
probable-cause[, Waldrop was] not constitutionally
entitled to a separate judicial determination that
there [was] probable cause to detain him pending
trial." Baker v. McCollan, 443 U.S. 137, 143
, 99 S.Ct. 2689, 2694, 61 L.Ed.2d 433 (1979).
Waldrop complains that the
Talladega police violated Alabama law by detaining
him in Talladega County. Removal to a distant prison
location is a factor to be considered in a
voluntariness determination. Culombe, 367
U.S. at 630 , 81 S.Ct. at 1893-94. Here, the
petitioner was undoubtedly removed from Calhoun
County to Talladega County. However, the coram nobis
court found that Waldrop wanted to be in Talladega
County and never requested that he be returned to
Calhoun County. Furthermore, the sheriff of
Talladega County stated that he would have returned
Waldrop if he had known that Waldrop was needed in
Calhoun County. It is possible that the Talladega
County police violated Alabama law by moving the
petitioner to Talladega County; however, that
question is not before us. Moreover, a violation of
state law does not necessarily render a confession
involuntary. Cf. Fikes v. Alabama, 352 U.S.
191, 194 n. 2, 77 S.Ct. 281, 283 n. 2, 1 L.Ed.2d 246
Waldrop contends that detention
without counsel added to the involuntariness of his
confession. But the district court correctly
concluded that Waldrop's right to counsel had not
yet attached on the uncharged murder offense. While
Waldrop was entitled to counsel during his
detention for the robbery, he had been advised of
his rights on several occasions and indicated that
he did not want or need a lawyer.
[T]here is no evidence which
suggests that [petitioner] was unable to comprehend
the Miranda warnings or the consequences of
his waiver of those rights. He stated to the police
that he understood the rights better than they did
and his past criminal history evinces his
familiarity [with] the warnings and the legal system
Waldrop v. Thigpen, 857
F.Supp. at 896. There is also no evidence in the
record that Waldrop suffered from diminished mental
capacity, as a result of his gunshot wound or the
brain surgery which followed it, that would have
called into question his waiver of his Miranda
rights. Id.; see also Waldrop v. State,
523 So.2d at 484 (discussing deposition testimony
from coram nobis proceeding of Waldrop's
neurosurgeon, Dr. Zeiger, who stated that petitioner
suffered no permanent disability or diminished
capacity from surgery).
We acknowledge that under some
circumstances a lengthy detention might induce an
involuntary confession. See Davis v. North
Carolina, 384 U.S. 737, 752 , 86 S.Ct. 1761,
1770, 16 L.Ed.2d 895 (1966). But we find no coercion
here. After assessing the totality of the
circumstances, we conclude that the confession given
by Waldrop on October 18, 1982, and later used at
trial, was not involuntary.
D. Confession obtained in
violation of the Sixth Amendment
Waldrop finally claims that his
October confession, made without counsel present,
was obtained in violation of the Sixth Amendment
because his right to counsel had already attached at
the time he made the statement. The district court
held and the State contends that the claim is
procedurally barred. We agree.
In Claim II of his first coram
nobis petition, Waldrop argued that his statement
had been illegally obtained in violation of his
Fourth, Sixth, and Fourteenth Amendment rights. The
state circuit court held that it could not review
the claim because the claim had been litigated on
direct appeal. 
But Waldrop abandoned this claim on his coram nobis
appeal. He instead argued that his attorneys were
ineffective because they did not move to suppress
his confession-a statement which, Waldrop claimed,
violated his Sixth Amendment right to counsel.
Rights." However, the text of the argument does not
support an independent Sixth Amendment claim.
We agree with the district court
that this claim is defaulted. Waldrop abandoned it
during his appeal to the Alabama Court of Criminal
Appeals following the denial of his coram nobis
petition. "[T]he state court that is usually the
final arbiter of such [a] collateral attack[ ] on
[a] criminal conviction[ ] was not afforded a fair
opportunity to rule on [it]." Collier v. Jones,
910 F.2d 770, 773 (11th Cir.1990). Waldrop's
claim is thus "analogous to claims that have never
been presented to a state court, and which have
become procedurally barred under state rules." Id.;
see Ala.R.Crim. P. 32.2(b) & (c). Given the
posture of Waldrop's Sixth Amendment claim, the
district court properly found that the claim is
procedurally defaulted. See Collier, 910 F.2d
We have reviewed Waldrop's
ineffectiveness claim, improper prosecutorial
remarks claim, and involuntary confession claim on
the merits and find no constitutional error. We
conclude that Waldrop's attack on the trial court's
reasonable-doubt instruction and his Sixth Amendment
right to counsel claim are procedurally barred.
Accordingly, the district court's denial of the
petition for a writ of habeas corpus is affirmed.
Waldrop also argues that several
comments made during the prosecutor's summation at
the penalty phase of the trial deprived him of a
fundamentally fair trial. This argument is without
merit and does not warrant further discussion.
See 11th Cir.R. 36-1.
Although it first addressed the performance
component and then moved to the prejudice component
in Strickland, the Supreme Court specifically
held that a court need not address the components in
any particular order or even address both if the
defendant makes an insufficient showing on one. 466
U.S. at 696 , 104 S.Ct. at 2069; see also Marek
v. Singletary, 62 F.3d 1295, 1298 (11th
The court's instruction on reasonable doubt was
In Cage, the Supreme Court ruled that a
similarly-worded instruction improperly "suggest[ed]
a higher degree of doubt than is required for
acquittal under the reasonable-doubt standard."
Id. at 41, 111 S.Ct. at 329-30.
Although a federal court may dismiss a petition
when it contains both exhausted and unexhausted
claims, Rose v. Lundy, 455 U.S. 509, 532-33 ,
102 S.Ct. 1198, 1210-11, 71 L.Ed.2d 379 (1982), the
State has not argued exhaustion. The State argues
that Waldrop has no state remedy available because
of his procedural default.
The petitioner cites Layton v. Carson,
479 F.2d 1275 (5th Cir.1973), to support this
argument. However, Layton does not hold that
futility excuses a state procedural default; rather,
the opinion states that futility will excuse the
failure to exhaust state remedies. Id.
at 1276. Layton is thus inapposite; the State
has not raised exhaustion as a basis for the denial
The district court held that Waldrop would be
barred from attacking the instruction in a new Rule
32 petition for two reasons. First, Rule 32.2(b) (the
substantive equivalent of former Rule 20) prohibits
successive petitions brought on grounds which were
available or could have been ascertained at the time
of the first Rule 32 petition. Ala.R.Crim.P.
The petitioner also raised a Fifth Amendment
challenge to his confession in his petition, but has
not questioned on this appeal the denial of relief
on this claim.
The September 15, 1982, confession was not
introduced at trial.
Although the district court used these facts in
its assessment of Waldrop's Fifth Amendment claim,
they can also be used in a voluntariness
determination. During the suppression hearing,
Waldrop offered contradictory evidence on these
factual issues. However, the trial court's denial of
the motion implicitly credits the State's evidence.
See Culombe, 367 U.S. at 604 -05, 81 S.Ct. at
As the district court noted, Waldrop v.
Thigpen, 857 F.Supp. at 895 n. 11, these factual
findings were made by the coram nobis court in the
context of an ineffectiveness claim. However, these
findings of fact are presumed correct under §
2254(d) for all claims.
On appeal, Waldrop specifically challenges only
the district court's factual finding that he wanted
to remain in Talladega County to be near his family.
We agree that the state trial court did not find
this, but we find that the record fairly supports
the coram nobis court's finding that Waldrop wanted
to remain in Talladega County. ( See Tr.,
Coram Nobis Hr'g, R. 2 at 273-74.)
In fact, the petitioner did not raise this claim
on direct appeal; he argued that his statement had
been obtained in violation of his Fifth Amendment
In Waldrop's coram nobis brief to the Alabama
Court of Criminal Appeals, Claim II is headed: "The
Admission in Evidence of Appellant's Illegally
Obtained Statement Violated His
in Re Billy Wayne Waldrop,
Docket number: 97-1006
Circuits, 11th Cir.
January 9, 1997
Application for Leave to File a
Second or Successive Petition for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. 2254, 2244.
Before ANDERSON, EDMONDSON and
COX, Circuit Judges.
Billy Wayne Waldrop, an Alabama
inmate under a sentence of death, applies for
permission to file a second habeas corpus petition
challenging his 1982 death sentence for murder. His
execution is scheduled for 12:01 A.M. CST, January
10, 1997. This application was filed at 6:05 P.M.
EST, January 9, 1997. A history of the previous
federal petition appears in Waldrop v. Jones, 77
F.3d 1308 (11th Cir.1996). Waldrop's application is
subject to 28 U.S.C. 2244(b)(2) as amended by the
Antiterrorism and Effective Death Penalty Act of
1996, Pub.L. No. 104-132, tit. I (1996). The amended
(2) A claim presented in a
second or successive habeas corpus application under
section 2254 that was not presented in a prior
application shall be denied unless--
(A) the applicant shows that
the claim relies on a new rule of constitutional law,
made retroactive to cases on collateral review by
the Supreme Court, that was previously unavailable;
or(B)(i) the factual predicate for the claim could
not have been discovered previously through the
exercise of due diligence; and
(ii) the facts underlying the
claim, if proven and viewed in light of the evidence
as a whole, would be sufficient to establish by
clear and convincing evidence that, but for
constitutional error, no reasonable factfinder would
have found the applicant guilty of the underlying
28 U.S.C. 2244(b)(2).
Waldrop presents two claims in
his application. His first claim is a claim of
"actual innocence." Waldrop urges us to address the
issue of whether a claim of actual innocence may be
raised either in a successive habeas petition under
28 U.S.C. 2244(b)(2)(B) or as a separate and
independent constitutional claim. We need not decide
this issue here. The evidence Waldrop proffers fails
to demonstrate actual innocence.
Waldrop's second claim is that
the district court should be permitted to reopen his
1990 federal habeas proceedings because the State
suppressed documents corroborating testimony that
Timothy Thomas and Cordell Smith were involved in
the murder of Donahoo. In addition, Waldrop alleges,
state officials "may have threatened and intimidated"
Doris Thomas, a witness at the state coram nobis
proceedings, if she failed to testify as instructed.
These matters, Waldrop alleges, make the result in
the state coram nobis and federal habeas proceedings
The allegations relative to the
second claim fit neither of the two statutory
conditions for filing a successive habeas petition.
No new rule of constitutional law is involved, and
Waldrop has not demonstrated that the factual
predicate for the claim could not have been
discovered previously through the exercise of due
The "documents" alleged to have
been suppressed are not described, but presumably
the March 12, 1987, statement of Henry Mayes is one.
This statement, however, does not provide evidence
of Waldrop's innocence. Furthermore, Waldrop does
not attempt to demonstrate that he was not
previously aware of Mayes's version of the events in
The relevance of the alleged
threat to and intimidation of the witness Doris
Thomas is not readily apparent. She was an alibi
witness for Waldrop at trial. The petition does not
demonstrate how any testimony from her could provide
a basis for habeas relief.
In this case we need not decide
whether misconduct in postconviction proceedings can
ever justify granting an application to file a
successive petition; nothing alleged in this
application undermines our confidence in the outcome
of the prior federal habeas proceedings.
For the foregoing reasons,
Waldrop's application for an order authorizing the
district court to consider his second or successive
petition for a writ of habeas corpus is hereby
APPLICATION DENIED. THE REQUEST
FOR STAY OF EXECUTION IS DENIED.
We stress that the decision to
grant or to deny an application for leave to file a
second or successive habeas petition in federal
court is not one that we make lightly or that can
always be made speedily. Therefore, we must point
out that, while we are considering whether to grant
or to deny an application, a significant risk exists
that the matter will be mooted by the petitioner's
death before we have time to determine whether the
grant of the application is appropriate.