[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
Aug. 19, 2009
THOMAS K. KAHN
D. C. Docket No. 06-00005-CV-2-JHH-TMP
WILLIE LEON SCOTT,
WARDEN GRANT CULLIVER,
ATTORNEY GENERAL OFFICE STATE OF ALABAMA,
Appeal from the United States District Court for the Northern District of Alabama
(August 19, 2009)
Before BIRCH, HULL and KRAVITCH, Circuit Judges.
Willie Leon Scott, an Alabama state prisoner proceeding pro se, appeals the
district court's denial of his 28 U.S.C. § 2254 habeas petition. In his petition,
Scott, who is serving a life sentence for capital murder, alleged that his trial
counsel was ineffective for (1) failing to object to testimony given by trial court
bailiff Mark Tinsley and (2) not requesting a mistrial on account of Tinsley's
contact with the jury in his capacity as the court bailiff following his testimony.
Scott's appeal centers on the following facts1:
During Scott's jury trial, Tinsley, the court bailiff, took the stand and
testified that he had observed Marcus Scott, the petitioner's brother, give money to
an individual accompanying a defense witness. As stated by Scott in an
amendment to his habeas petition, Tinsley's testimony was offered by the
prosecution to impeach that witness by "insinuat[ing] that the money transaction
was a payoff for [that witness]'s trial testimony." Scott's trial attorney did not
object to Tinsley's testimony.
After testifying, Tinsley briefly continued to work as a bailiff in the
courtroom. According to Scott's brief to the Alabama Court of Criminal Appeals,
Tinsley was "allowed to escort certain members of the jury outside to give them an
opportunity to smoke. Once this came to the attention of the attorney for [Scott],
The facts are set out more fully in the Magistrate Judge's Report and Recommendation.
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the trial court directed that a different bailiff . . . replace Mark Tinsley to oversee
the jury members' activities." Ultimately, the jury convicted Scott.
Scott appealed and raised, inter alia, the issues of Tinsley's testimony and
Tinsley's continued work as a bailiff. The Alabama appellate court affirmed
Scott's conviction, finding that Scott's claims were not preserved because he
failed to object at trial. The Alabama Supreme Court denied review.
Scott later filed a post-conviction petition in state court pursuant to
Alabama Rule of Criminal Procedure 32, asserting that, inter alia, Scott's trial
counsel provided ineffective assistance by failing to (1) object to the introduction
of Tinsley's testimony and (2) move for a mistrial in light of Tinsley's contact
with jurors following his testimony. The petition was denied. On appeal, the
Alabama Court of Criminal Appeals discussed the United States Supreme Court's
standard for ineffective assistance of counsel claims under Strickland v.
Washington, 466 U.S. 668
(1984). The court noted the need for a petitioner to
establish prejudice by showing that the outcome of the case would have been
different but for the trial attorney's errors. In reference to Scott's claim regarding
the introduction of Tinsley's testimony, the court stated:
Tinsley's testimony concerned Scott's family interacting with
witnesses, specifically that he observed Marcus Scott giving money to
an individual in the courtroom who was accompanying a defense
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witness. This testimony was clearly admissible for impeachment to
show bias. An objection by counsel would properly have been
overruled; thus, Scott can show no prejudice by counsel's failure to
The Alabama court affirmed the trial court's denial of Scott's Rule 32 petition.
The court did not address the alleged error in allowing Tinsley to continue as
bailiff after testifying.
Scott then filed his present habeas petition in federal court pursuant to 28
U.S.C. § 2254, asserting a multitude of errors in his jury trial. After a thorough
review of Scott's claims, the Magistrate Judge issued a Report and
Recommendation recommending that Scott's petition be denied. The district court
adopted the Magistrate Judge's report and denied Scott's petition.
Scott filed a motion to appeal and was granted a certificate of appealability
(the "COA") on the following issue:
Was the determination by the Alabama Court of Criminal Appeals
"contrary to" or an "unreasonable application of" Supreme Court
precedent, and not entitled to deference under 28 U.S.C. § 2254(d),
when it concluded that petitioner suffered no prejudice and did not
receive ineffective assistance of counsel in violation of the Sixth
Amendment when counsel failed to object to court bailiff Mark
Tinsley continuing to assist the jury for a short period of time after he
testified in petitioner's trial to seeing petitioner's brother pay money
to a man who was with a defense witness?
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In reviewing the district court's denial of a habeas petition, we review
questions of law de novo and findings of fact for clear error. Nyland v. Moore,
216 F.3d 1264
, 1266 (11th Cir. 2000).
A habeas petition brought by an individual in custody pursuant to a state
shall not be granted with respect to any claim that was adjudicated on
the merits in State court proceedings unless the adjudication of the
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law,2 as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d). A state court's decision is "contrary to" federal law if (1) the
court arrives at a conclusion opposite to that reached by the United States Supreme
Court on a question of law, or (2) the court confronts facts that are "materially
indistinguishable" from relevant Supreme Court precedent, but arrives at an
opposite result from that arrived at by the Supreme Court. Putnam v. Head, 268 F.3d 1223
, 1241 (11th Cir. 2001). An "unreasonable application" of federal law
occurs when the state court either (1) correctly identifies the legal rule from
The phrase "clearly established Federal law" refers to "the governing legal principle or
principles set forth by the Supreme Court at the time the state court renders its decision."
Lockyer v. Andrade, 538 U.S. 63
, 71-72 (2003).
[End Page 5]
Supreme Court precedent but unreasonably applies the rule to the facts of the case,
or (2) "unreasonably extends, or unreasonably declines to extend, a legal principle
from Supreme Court case law to a new context." Id.
Under clearly established federal law, a habeas petition based on an asserted
claim of ineffective assistance of counsel will prevail only if the petitioner shows
that (1) "counsel's performance was deficient" because it "fell below an objective
standard of reasonableness," and (2) "the deficient performance prejudiced the
defense." Strickland, 466 U.S. at 687-88. A reviewing court need not address the
performance prong of the test if the defendant cannot meet the prejudice prong, or
vice-versa. Holladay v. Haley, 209 F.3d 1243
, 1248 (11th Cir. 2000). In
determining whether the trial counsel was deficient, "counsel is strongly presumed
to have rendered adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment." Strickland, 466 U.S. at 690. With
regard to the prejudice prong, the defendant must show that "there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different." Id. at 669.
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Scott argues that his trial counsel's performance was deficient because he
failed to object to the bailiff's testimony that he observed Scott's brother handing
money to someone accompanying a defense witness.3
The Alabama Court of Criminal Appeals noted that Tinsley's testimony
"concerned Scott's family interacting with witnesses" and "was clearly admissible
for impeachment to show bias." Because the testimony was admissible, the court
noted that any objection by Scott's attorney would have been properly overruled
and found that Scott could show no prejudice by counsel's failure to object to
Tinsley's testimony. The court discussed the Strickland standard and concluded
that the lack of prejudice to Scott established that counsel's error did not rise to
the level of "ineffective assistance."
The state argues that the COA limited the issue on appeal to only the question of
Tinsley's continuing presence as a bailiff after his testimony and that, therefore, counsel's failure
to object to the testimony is outside the COA and should not be addressed by this court.
Although it is true that we are limited to the issues presented in the COA, we read the issue specified in the COA as including both the question of Tinsley's contact with the jury following
the testimony and the introduction of the testimony itself because the issues are intertwined.
Murray v. United States, 145 F.3d 1249
, 1251 (11th Cir. 1998) (holding that the issues specified
in the COA may be construed in light of the pleadings and other parts of the record). In the
conclusion of his opening brief to this court, Scott raises additional arguments regarding errors
made by his trial counsel in not better impeaching one of the prosecution's witnesses and by not
objecting to the prosecution's decision to re-test Scott's pants for blood. These issues are beyond
the scope of the COA, even if liberally read in light of the pleadings and the record, and will not
be reviewed. Murray, 145 F.3d at 1251. Furthermore, Scott mentions these issues only briefly
and only in his conclusion; arguments made only in passing are deemed abandoned. See
Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570
, 1573 n.6 (11th Cir. 1989).
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The Alabama court's resolution of this issue was not contrary to nor an
unreasonable application of federal law. The court identified the applicable
federal law on ineffective assistance of claims as set forth in Strickland and
correctly discussed the requirement that Scott must demonstrate prejudice
resulting from any error. The court also correctly applied Strickland; the court
determined that the testimony would be admissible under Alabama rules of
evidence and thus there was no prejudice by failing to object. We, therefore, deny
Scott's habeas petition as to his claim that his counsel rendered ineffective
assistance for failing to object to Tinsley's testimony.
Scott also argues that his trial counsel's performance was deficient for
failing to request a mistrial when Tinsley was allowed to continue as a bailiff after
he testified for the prosecution.
The Alabama Court of Criminal Appeals did not address this issue in its
ruling on Scott's Rule 32 petition, although Scott did raise the issue in his brief
before that court. We note first that a habeas petitioner is deemed to have
exhausted his state remedies by raising an issue to the state court, even if the state
court fails to address the issue in its opinion. Smith v. Digmon, 434 U.S. 332
(1978). Second, a state court decision that resolves claims on the merits â€" rather
than on procedural grounds â€" is still an "adjudication on the merits" entitled to
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deference under 28 U.S.C. § 2254(d)(1). Wright v. Sec'y for the Dept. of Corr.,
278 F.3d 1245
, 1255-56 (11th Cir. 2002). Thus, we will grant Scott's habeas
petition on this issue only if Alabama's decision was contrary to or an
unreasonable application of federal law, even though it did not squarely address
the question of Tinsley's contact with jurors after testifying.
In Turner v. State of Louisiana, 379 U.S. 466
, 474 (1965), the U.S. Supreme
Court held that a defendant's trial is unconstitutionally prejudiced when two key
prosecution witnesses also serve as the jurors' official guardians and have a
"continuous and intimate association" with the jury "throughout a three-day trial."
In Turner, the two principal witnesses for the prosecution were deputy sheriffs
who investigated the crime of which the defendant was accused and testified at
trial as to their investigative findings and the defendant's confession. Id. at 467.
These same deputies also served as "guardians" to the jury, remained in "close and
continual association" with the jurors throughout the trial, and even accompanied
the jurors to meals and place of lodging, conversing regularly with jurors. Id. at
467-68. The Court found that such extensive contact would lend credibility to the
deputy sheriffs' testimony and that allowing two key prosecution witnesses to
establish credibility with the jurors would prejudice the defendant, especially
where the "credibility which the jury attached to the testimony of these two key
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witnesses must inevitably have determined whether [the defendant] was to be sent
to his death." Id. at 473-74.
This case is distinguishable from Turner. See Beto v. Gonzales, 405 U.S. 1052
, 1054 (1972) ("Turner, of course, did not set down a rigid, per se rule
automatically requiring the reversal of any conviction whenever any Government
witness comes into any contact with the jury.") Tinsley was not a "key"
prosecution witness; his testimony merely impeached the testimony of one defense
witness. Furthermore, his association with the jury following his testimony was
not "close and continual." Rather, according to Scott, he simply escorted a few
jurors to a cigarette break and was not with the jurors for longer than five minutes.
Tinsley's testimony occurred at the very end of the trial, and immediately after he
testified, the attorneys delivered their closing arguments. By the time the trial
court gave the jury its instructions, another officer had replaced Tinsley as court
bailiff. Such brief and limited contact with jurors does not establish that Scott's
trial was prejudiced. Id. ("The Court's opinion [in Turner] specifically indicated
that association with the jury by a witness whose testimony was â€˜confined to some
uncontroverted or merely formal aspect of the case for the prosecution' would
hardly present a constitutional problem."); see also Williams v. Thurmer, 561 F.3d 740
, 743-44 (7th Cir. 2009) (concluding that a witness who gave only rebuttal
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testimony and had minimal contact with the jury in the form of courtroom security
does not require reversal of the conviction under Turner); United States v. Britton,
68 F.3d 262
, 264 (8th Cir. 1995) (finding no Turner error where a government
witness merely instructed jurors on the use of courtroom audio equipment after
testifying). Accordingly, the Alabama Court of Criminal Appeals's decision to
deny habeas relief for the asserted failure of Scott's trial counsel to move for a
mistrial on account of the bailiffs continued presence as a bailiff after testifying
against Scott was not contrary to or an unreasonable application of federal law.
For the foregoing reasons, we AFFIRM the denial of Scott's § 2254 habeas
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