from the United States District Court for the Middle District
of Alabama D.C. Docket No. 2:11-cv-00552-WKW-SRW
MARTIN, JILL PRYOR and MELLOY, [*] Circuit Judges.
PRYOR, Circuit Judge
Harris, an Alabama inmate, appeals the district court's
denial of her 28 U.S.C. § 2254 federal habeas petition.
Harris was convicted for arranging the murder of her husband,
Montgomery County Deputy Sheriff Isaiah Harris, and sentenced
to life imprisonment without parole. Following unsuccessful
challenges to her conviction on direct appeal and collateral
proceedings in the Alabama state courts, Harris filed a
federal habeas petition in the United States District Court
for the Middle District of Alabama, which the district court
denied. Harris appeals the rejection of her petition on a
single ground: that she was denied effective assistance of
counsel at the guilt phase of her trial because a revolving
door of trial attorneys, collectively, left her unable to
muster an adequate defense. Because the Alabama courts deemed
this challenge procedurally defaulted, Harris additionally
asserts that she can demonstrate cause and prejudice to
excuse the default.
thorough review of the briefing and the record, and with the
benefit of oral argument, we affirm the denial of
Harris's petition. Although we do not rule out that an
ineffective assistance of counsel claim could be based on the
lack of continuity of counsel, and we agree that Harris can
show cause why she failed to raise her claim at the
appropriate time in state court, we conclude that she cannot
demonstrate that the lack of continuity of counsel prejudiced
her case. Thus, she cannot overcome the procedural default
and, for the same reasons, cannot demonstrate a meritorious
claim of ineffective assistance of counsel.
was convicted in Alabama of the murder of her husband, Isaiah
Harris. The murder was deemed a capital offense because it
was "for pecuniary gain or pursuant to a contract for
hire" and because Isaiah Harris was an on-duty deputy
sheriff. Harris v. State, 632 So.2d 503, 508
(Ala.Crim.App.1992). After Harris was convicted, the jury
voted 7 to 5 for a life sentence, but the trial court
overrode the jury's recommendation and imposed a death
sentence. Id. Although Harris's death sentence
was upheld on direct appeal, it was vacated during her state
postconviction proceedings because trial counsel rendered
ineffective assistance in failing to investigate and present
mitigating evidence at the penalty phase. Upon the
parties' agreement, the trial court resentenced Harris to
life without parole.
we recount the events that led to Harris's trial and
conviction, as well as evidence adduced at her state
McCarter hired two men to kill Isaiah Harris. Sometime
thereafter, Harris-who had had an extramarital affair with
McCarter-was implicated in the murder.
was indigent, so the trial court appointed counsel for her.
On May 19, 1988, the court appointed Frank Riggs and Tim
Halstrom as defense counsel. Two months later, Riggs and
Halstrom filed a "Motion for Reasonable and Adequate
Compensation of Counsel, or to Excuse Appointed Counsel,
" in which they admitted that they had "little
experience in capital litigation" and requested
compensation above that permitted by Alabama law so that they
could get up to speed in a short amount of time on the
relevant facts of Harris's case and the law governing
capital cases. Ex. A Vol. VI, R-1081-83. On August 22,
1988, the trial court entered an order "assum[ing]
that" counsel's motion was "to be relieved of .
. . appointment as attorneys in this case" and relieving
counsel of their appointment. Ex. A Vol. VI, R-1102. There is
no indication in the record that Harris knew of counsel's
motion or the court's order.
August 30, 1988, the trial court appointed Pete Yates to
represent Harris. Although the record does not contain an
order appointing co-counsel, it is clear that David Allred
also was appointed to represent Harris around August 30: he
is copied on the order appointing Yates. On September 1,
1988, the trial court appointed Maury Smith to represent
Harris, apparently alongside Yates and Allred.
September 6, 1988, a week after he was appointed, Allred
filed a "Motion for Relief from Appointment." Ex. A
Vol. VI, R-1108. Yates and Smith also apparently moved to
withdraw, although the record does not contain their motions.
Within days, the trial court granted the motions, permitting
all three lawyers to withdraw. Again, there is no indication
that Harris knew of counsel's motions or the trial
September 14, 1988, the trial court appointed Barry Leavell
and John Alley to represent Harris, her sixth and seventh
lawyers in a span of about four months. On September 29, just
over two weeks later, the court relieved Alley and replaced
him with Knox Argo, who would serve as counsel at trial. At
this point, the case was set for trial on March 20, 1989,
giving Leavell and Argo six months to prepare a capital
murder case for a guilt and a penalty phase.
than a week before trial was set to begin, Leavell and Argo
notified the trial court that there was a problem: they had
just discovered that Alabama law required counsel in a
capital case to have had five years of active criminal
practice, and neither had the requisite
experience. Leavell and Argo nonetheless represented
to the court that "factually the case is ready to go to
trial." Ex. A Vol. 1, R-25. The court continued the
trial and, on March 29, 1989, replaced Leavell with Eric
Bowen as lead counsel. Bowen was a relatively experienced
criminal lawyer, but he had never defended a capital case.
over three months later, on July 10, 1989, Harris's trial
began with Bowen and Argo as her counsel.
facts elicited at trial are thoroughly detailed in the
Alabama Court of Criminal Appeals's opinion in
Harris's direct appeal. See Harris, 632 So. at
508-09. We include a summary of facts relevant to this
State presented the following evidence at Harris's trial.
At the time of Isaiah Harris's murder, Harris was having
an affair with McCarter. McCarter, who-to avoid a potential
death sentence-testified against Harris at her trial, hired
two men, Michael Sockwell and Alex Hood, to kill Isaiah
Harris while he was on his way to work his night shift at the
local jail. Sockwell and Hood parked a car outside the
Harris's subdivision and waited for Isaiah Harris to
leave for work. Isaiah Harris left home around 11:00 p.m.;
when he "stopped at the stop sign at the entrance of the
subdivision, Sockwell shot him once in the face at close
range with a shotgun, " killing him. Id. at
testified that Harris asked him to hire someone to kill her
husband. In support of McCarter's testimony, the State
offered evidence "of the existence of various insurance
policies on the victim's life, with [Harris] specified as
the beneficiary." Id. The State also offered
the testimony of several law enforcement officers, who
testified that, upon hearing the news of her husband's
death, Harris behaved abnormally. Harris ...