[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 18, 2012
JOHN LEY
CLERK

Nos. 11-10240 & 11-10761

________________________
D. C. Docket No. 07-cv-01222-IPJ-RRA

JOHN MILTON HARDY,

Petitioner-Appellant,
versus

COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS,

Respondent-Appellee.

________________________
Appeals from the United States District Court
for the Northern District of Alabama
_________________________
(June 18, 2012)

Before DUBINA, Chief Judge, and TJOFLAT and MARCUS, Circuit Judges.

TJOFLAT, Circuit Judge:

John Milton Hardy is an Alabama prison inmate awaiting execution for a
capital murder he committed with Charles Sneed, who likewise is awaiting
execution. He has exhausted his state remedies, and a Federal District Court has
denied his petition for a writ of habeas corpus. See 28 U.S.C. 2254. He is here
on appeal. His principal claims are that in requiring him to stand trial jointly with
Sneed, the Alabama courts denied him due process of law, as guaranteed by the
Fourteenth Amendment, and an individualized sentencing proceeding, as
guaranteed by the Eighth Amendment. He also argues that the prosecutor
commented on his post-Miranda silence in violation of the Fourteenth
Amendment. We find no error in the District Courts denial of the writ, and
therefore affirm.
I.
A.
On October 22, 1993, a Morgan County grand jury indicted Hardy and
Sneed for the capital offense of murder committed, in the first degree,1 during the
robbery of a convenience store clerk in Decatur, Alabama on September 7, 1993.
Prior to trial, Hardy moved the Morgan County Circuit Court for severance on the
1

See Ala. Code 13A-5-40(a)(2).

2

ground that his and Sneeds defenses were antagonistic to the point of being
irreconcilable and mutually exclusive. His defense would be alibi; Sneeds
defense would be that Hardy shot the victim. Sneed had given the police a written
statement in which he confessed that he and Hardy had robbed the convenience
store, but that he did not know, and did not intend, that Hardy would shoot the
clerk. The court denied Hardys motion. As for Sneeds confession, it could
address its admissibility at trial.
The joint trial began on September 8, 1995. The Alabama Court of
Criminal Appeals, in its opinion affirming Hardys conviction and death sentence,
details the evidence presented to the jury.
The states evidence showed the following. In the early
morning hours of September 7, 1993, Clarence Nugene Terry, the
clerk at a Buds Convenience Store located in Decatur, was murdered
and robbed. A surveillance camera captured the entire
robberymurder on videotape, and the videotape was recovered at the
scene. The videotape showed that Hardy and Sneed entered the store
and that Hardy was armed with a gun. Immediately upon entering the
store, Hardy began shooting at Terry. As Hardy fired the initial shot,
Sneed walked past Hardy toward the cash registers. The first shot
missed Terry, and he ran behind the counter, trying to hide. Sneed,
by this time also behind the counter, tried to open the cash registers as
Terry lay on the floor near Sneeds feet. As Sneed attempted to open
the cash registers, Hardy, who was still in front of the counter, leaned
over the counter and shot Terry in the chest. Terry tried to protect
and hide himself after this shot. Hardy walked around the counter,
and while standing over Terry, fired five shots into Terrys face and
head. Forensic evidence showed that Terry was still conscious when
3

Hardy began shooting him in the head. Terry suffered gunshot

wounds to the left cheek, left upper cheek, center of his forehead, left
ear, left eye socket, right side of his chest, and the palm of his right
hand. Any of the wounds to the head or the one to the chest would
have proved fatal. As Terry lay dying on the floor, Sneed and Hardy
continued their attempts to open the cash registers. Sneed, at one
point, kicked Terrys foot to move it out of his way. The attempts to
open the cash registers were unsuccessful, so Hardy and Sneed
unplugged one of the cash registers and took it with them when they
ran out of the store.
The states evidence further showed that on August 29, 1993, a
few days before the robbery-murder, Sneed and Christopher Hines
drove in Hiness blue 1978 Ford automobile from Louisville,
Kentucky, to Tanner, Alabama, to visit Hiness relatives. Sometime
after arriving in Tanner, Hines introduced Sneed to Hardy. On the
evening of September 6, 1993 (the evening before the early-morning
crime), Hardy, Sneed, and Hines rode in someone elses automobile
to Tennessee to purchase fireworks and beer. They returned to
Alabama, where they spent the remainder of the evening drinking.
Around 10:30 p.m., Hines let Hardy borrow his automobile; Sneed
left with Hardy. Hines did not see either Hardy or Sneed until around
3:00 or 4:00 a.m. the next morning, when he accompanied them to a
location near Hardys fathers house, where, using a sledgehammer,
the three men attempted to get money out of a cash register.
Subsequently, the cash register was identified as the one taken during
the robbery-murder, and Hiness fingerprint was later found on a
piece of the cash register that was recovered. Sometime later that day
Hardy, Sneed, and Hines returned to Hardys fathers house, where
Hardy and his father had an argument about a gun; Hardys father
accused him of stealing the gun.
The states evidence also showed that police officers showed
the surveillance videotape of the robbery-murder to several persons,
including Hines, in an effort to identify the gunman and his
accomplice. Hines and three others positively identified Hardy as the

shooter. Sneed was identified as the accomplice appearing on the

videotape.
On Wednesday, September 8, 1993, Hardy, Sneed, and Hines
traveled to Louisville, Kentucky. Hardy was arrested in Kentucky the
same day. At the time of his arrest, he was carrying a 9mm
semiautomatic handgun. While in custody in Kentucky, Hardy gave
an oral statement to the Decatur, Alabama officers, [Sergeants Dwight
Hale and John Boyd,] denying his involvement in the crime; however,
he admitted borrowing Hiness automobile on September 6. Also,
when asked how much money he got, he replied that he did not get
any because he could not get the cash register open. He further stated
the he had hidden the gun, wrapped in plastic, in the attic at his
fathers house in Alabama; that the clothes, presumably those worn
during the crime, had been burned; and that the cash register had been
thrown away. He stated that when he was returned to Alabama, he
would consent to a search and would show the officers where the gun
was located.
Hardy v. State, 804 So. 2d 247, 25556 (Ala. Crim. App. 1999).
At some point as it was presenting its case in chief, the State informed the
court out of the jurys presence that it intended to introduce the written statement
Sneed had given the police. Hardy objected because the statement implicated him
by name. The court overruled the objection after the State produced a redacted
statement that omitted all references to Hardy. See Ex parte Sneed, 783 So.2d
863, 865 (Ala. 2000) ([I]n places where Sneed had actually said we or he, the
prosecution had substituted I[.])2

Sneeds redacted statement read, in pertinent part:

5

After the State rested, the court asked defense counsel whether they
intended to put on any evidence. Hardys counsel informed the court that Hardy
would present a defense, but would not be taking the stand. Sneeds counsel had
nothing to present.

[Chris Hines and I] arrived [in Alabama] on Sunday, August 29, 1993, at about
3:30 p.m., central time, Alabama time. We drove to Ms. Tina Gills place. That
is where we planned to stay because Chris mother did not want Chris to stay with
his daddy in Alabama because he was a bad influence. While we were there, we
went to A & M College, Huntsville into the Ebony club in Triana. We went back
Saturday night, but we did not have any trouble. On labor day, we stayed around
Ms. Gill's house. Chris was asked if his car could be used to make a liquor run.
A case of beer was bought at the county line. I got wasted on beer. I rode around.
I remember I rode on a lot of dirt roads. I remember crossing a draw bridge over a
river. After crossing the bridge, I went past a lot of gas stations. I remember, I
went by about 6. Most of them had several people there. Sometime between
12:00 midnight and 12:30 a.m., I saw a station that had only one guy in it. I went
around the block twice. I went by the front of the store and I saw the store clerk in
the back by the pop machines. I mean by the place where you open the doors to
get the pop out. The car was parked on the side of the store. I used the sleeves
from a shirt for a mask to cover my face. When I went by the front of the store the
second time, I got out and walked to the front door. I tied the mask on my face
and I went in the store. I opened the door and the next thing I knew, the shooting
started. I ran and tried to raise up the counter so I could get behind it, but I could
not get it up. I crawled under it. I was trying to get the cash register open. There
were two cash registers but I could not get either one of them to open. One of the
cash registers, I picked up and ran out of the store and got in Chris car which is a
blue colored Ford LTD, 4 door. I am not sure about the model but I think it is a
74. All I know for sure is that it is a 70s model. I went back to Tanner and then I
drove Chris car back to Ms. Gill's house. I poured gas on my clothes and burned
them. I went and got the cash register, busted it open, me and Chris, but I never
told Chris where I had gotten the cash register or how I got it. I could not get the
money drawer open and I had to shake it to get the money out. I remember, I got
$48.00. Chris helped get the money out. We spent it all that night on beer and
gas. All this happened on Tuesday, the day after labor day. On Wednesday
morning, about 9:00 a.m., we left going back to Louisville, me and Chris. I never
told Chris what happened and he never asked me.
6

Hardys defense consisted of the testimony of two alibi witnesses: his

brother, who testified that Hardy was home on the night of the crime and that it
was not Hardy on the videotape; and his sister, who also testified that it was not
Hardy on the videotape. Hardy v. State, 804 So. 2d at 256.
The jury found both defendants guilty, and following a recess, the
sentencing phase of the jury trial began. Before the State presented its case, the
court instructed the jury that it was in effect conducting two sentencing
proceedings; it had to give separate consideration to the case of each defendant
and realize that any evidence admitted against only one defendant should not be
considered as to the other defendant. The State went first. It relied on the
evidence produced during the guilt phase of the trial and presented, in addition, an
unredacted version of Sneeds statement of confession. After the State rested,
Hardy presented his case, calling several character witnesses in mitigation, but he
did not take the stand. Sneed, in his case, called character witnesses in mitigation
but did not testify.
On October 30, 1995, after deliberating, the jury, by a vote of 10 to 2,
recommended a death sentence in both cases. On December 21, 1995, the court
accepted the jurys recommendation for both defendants and sentenced them to
death.
7

B.
Hardy appealed his conviction and sentence to the Alabama Court of
Criminal Appeals. His brief presented several grounds for the reversal of his
conviction and death sentence, including the three grounds presented in the instant
appeal: (1) that the joinder of [his] trial with his codefendants violated [his
constitutional] rights, and the trial courts refusal to grant a severance was
reversible error, Hardy v. State, 804 So. 2d at 257; (2) that the trial court denied
his constitutional right to an individualized sentencing by refusing to sever his
penalty phase hearing from that of Sneed, id. at 263; and (3) that the trial court
erred by allowing a state witness[, Sergeant Dwight Hale,] to impermissibly
comment on [his] post-Miranda silence, id. at 264. The Court of Criminal
Appeals affirmed his conviction and sentence, id. at 298, the Alabama Supreme
Court affirmed as well, Ex parte Hardy, 804 So. 2d 298, 308 (Ala. 2000), and the
United States Supreme Court denied certiorari review, Hardy v. Alabama, 534
U.S. 1043, 122 S. Ct. 621, 151 L. Ed. 2d 543 (2001).3
3

In Ex parte Sneed, 783 So. 2d 863, 87071 (Ala. 2000), the Alabama Supreme Court
reversed the Court of Appeals affirmance of Sneeds conviction and death sentence and
remanded the case for a new trial on the ground that
Sneeds jury would have had to conclude that the edited and redacted version of
his statement admitted at trial was untruthful in order to accept his defense that he
lacked the specific intent to commit murder. In this respect, Sneeds rights were
sacrificed in order to accommodate the States interest in conducting a joint trial.
8

II.
His state remedies having been exhausted, Hardy repaired to the United
States District Court for the Northern District of Alabama, filing a petition for a
writ of habeas corpus on June 28, 2007. His petition presented eighteen grounds
for relief, including the three presented to the state appellate courts as set out
above. The District Court found no merit in any of these grounds and denied
relief. Hardy appealed, and the District Court issued a Certificate of Appealability
(COA) designating three issues for appeal: (1) whether the joinder of Hardys
trial with Sneeds violated Hardys federal constitutional rights; (2) whether the
joinder of the sentencing phase of Hardys trial with Sneeds violated his federal
constitutional rights; and (3) whether the Alabama appellate courts conclusions
that Hardys right against self-incrimination was not violated by the prosecutors
comments was an impermissible application of United States Supreme Court
law.4
Sneed was retried and again found guilty of robbery-murder and sentenced to death. His
conviction and sentence were affirmed. Sneed v. State, 1 So. 3d 104, 144 (Ala. Crim. App.
2008).
4

28 U.S.C. 2253 provides, in relevant part:

(c)(1) Unless a circuit justice or judge issues a certificate of

appealability, an appeal may not be taken to the court of appeals
from
(A) the final order in a habeas corpus proceeding in which
the detention complained of arises out of process issued by a
9

III.
The federal habeas corpus statute, 28 U.S.C. 2254, as amended by the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), and as
interpreted by the United States Supreme Court, limits the power of a federal court
to grant a writ of habeas corpus vacating the conviction of a state prisoner on the
ground that the conviction was obtained in violation of the Constitution of the
United States. First, a writ may not issue unless, with certain exceptions, the
prisoner has exhausted his state remedies. 28 U.S.C. 2254(b)(c); Cullen v.
Pinholster, ___ U.S. ___, 131 S. Ct. 1388, 1398, 179 L .Ed. 2d 557 (2011). The
prisoner exhausts his state remedies by presenting his constitutional claim to the
State courts, to afford them an opportunity to correct any error that may have
occurred. Duncan v. Henry, 513 U.S. 364, 365, 115 S. Ct. 887, 888, 130 L. Ed. 2d
865 (1995) (per curiam). If the prisoner has done this, and the State courts
adjudicated his claim on the merits, the writ

State court . . . .
(2) A certificate of appealability may issue under paragraph (1)
only if the applicant has made a substantial showing of the denial
of a constitutional right.
(3) The certificate of appealability under paragraph (1) shall
indicate which specific issue or issues satisfy the showing required
by paragraph (2).
28 U.S.C. 2253(c).
10

shall not be granted . . . unless the adjudication . . .

(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.
28 U.S.C. 2254(d).
The statutory phrase clearly established Federal law refers only to the
holdings, as opposed to the dicta, of the Supreme Court decisions extant at the
time of the State court adjudication. Williams v. Taylor, 529 U.S. 362, 412, 120 S.
Ct. 1495, 1523, 146 L. Ed. 2d 389 (2000). A State court decision is contrary to
a Supreme Court holding if the state court arrives at a conclusion opposite to that
reached by [the Supreme] Court on a question of law or if the state court decides a
case differently than [the Supreme] Court has on a set of materially
indistinguishable facts. Id. at 41213, 120 S. Ct. at 1523.5 A State court decision
involves an unreasonable application of a Supreme Court holding if the State court

[W]hen no Supreme Court precedent is on point, . . . a state courts conclusion cannot

be contrary to clearly established Federal law . . . . Dombrowski v. Mingo, 543 F.3d 1270,
1274 (11th Cir. 2008) (quoting Washington v. Crosby, 324 F.3d 1263, 1265 (11th Cir. 2003)).
11

correctly identifies the holding but unreasonably applies it to the facts of the
prisoners case. Id. at 407, 120 S. Ct. at 1520.
An unreasonable application of a Supreme Court holding is different from
an incorrect application of a Supreme Court holding. Harrington v. Richter, ___
U.S. ___, 131 S. Ct. 770, 785, 178 L. Ed. 2d 624 (2011) (quoting Williams, 529
U.S. at 410, 120 S. Ct. at 1522). A federal habeas court might consider the State
courts application of a Supreme Court holding incorrect were it reviewing the
State courts decision as an appellate court would on direct appeal. But the habeas
court is not conducting such review. AEDPA, having limited the courts authority
to grant the writ, precludes the court from issuing the writ even when it concludes
in its independent judgment that the state-court decision applied [the Supreme
Court holding] incorrectly. Woodford v. Visciotti, 537 U.S. 19, 2425, 123 S.
Ct. 357, 360, 154 L. Ed. 2d 279 (2002). [T]he purpose of AEDPA is to ensure
that federal habeas relief functions as a guard against extreme malfunctions in the
state criminal justice systems, and not as a means of error correction. Greene v.
Fisher, ___ U.S. ___, ___, 132 S. Ct. 38, 43, 181 L. Ed. 2d 336 (2011) (quoting
Harrington, ___ U.S. at ___, 131 S. Ct. at 786) (internal quotation marks omitted).
Section 2254(d)s standard for evaluating state-court rulings is therefore
highly deferential, Woodford, 537 U.S. at 24, 123 S. Ct. at 360 (internal
12

quotation marks omitted), and difficult to meet, Harrington, ___ U.S. at ___,
131 S. Ct. at 786; it demands that state-court decisions be given the benefit of the
doubt, Woodford, 537 U.S. at 24, 123 S. Ct. at 360.6 To obtain habeas relief, a
state prisoner must show that there is no possibility fairminded jurists could
disagree that the state courts decision conflicts with [the Supreme] Court's
precedentsthat the state court's ruling . . . was so lacking in justification that
there was an error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement. Harrington, 562 U.S. at ____, 131 S. Ct.
at 786.
These are the principles the District Court employed in considering the
claims at issue in this appeal. We employ the same principles, today, in reviewing
the District Courts disposition of those claims. The District Court ruled on a cold
record, the record compiled in the Alabama courts. We rule on the same cold
record, meaning that we afford the District Courts judgment no deference. See
Jamerson v. Secy for the Dept of Corr., 410 F.3d 682, 687 (11th Cir. 2005)
(stating that we review a district courts denial of a habeas petition de novo). Our

The extent of deference accorded a State courts decision will depend, in part, on the
specificity of the Supreme Court holding the State court applied. If the holding is specific, the
range of reasonableness may be narrow. If the holding is general, the range of reasonableness
may be broad. Yarrough v. Alvarado, 541 U.S. 652, 664, 124 S. Ct. 2140, 2149, 158 L. Ed. 2d
938 (2004).
13

task, as the District Courts was, is to determine whether the petitioner, Hardy, has
satisfied the burden ADEPA places on state prisoners seeking 2254 relief. We
turn now to the issues certified in the COA, taking them up in order.
A.
We first discuss whether the joinder of Hardys trial with Sneeds violated
Hardys federal constitutional rights.
1.
Rule 13.3 of the Alabama Rules of Criminal Procedure provides that [t]wo
or more defendants may be charged in the same indictment, information, or
complaint . . . [i]f they are alleged to have participated in the same act or
transaction.7 Ala. R. Crim. P. 13.3(b). Hardy and Sneed were charged in the
same indictment because they participated in the same act, the robberymurder of
Clarence Nugene Terry on September 7, 1993. Prior to trial, Hardy moved the
trial court for a severance pursuant to Alabama Rule of Criminal Procedure 13.4(a)
on the ground that his and Sneeds defenses were so irreconcilable and mutually

Rule 13.3 is based on Federal Rule of Criminal Procedure 8(b), which provides, in
relevant part, that [t]he indictment . . . may charge 2 or more defendants if they are alleged to
have participated in the same act or transaction . . . constituting an offense. Fed. R. Crim. P.
8(b). Hardy renewed his motion for severance during trial, and after the parties rested at the end
of the guilt phase of the trial, he moved the court to grant a mistrial.
14

exclusive that a joint trial would inexorably prejudice him.8 His defense was that
he did not participate in the Terry murder; he was at home when the crime
occurred. Severance was required, he argued, because the jurys acceptance of
Mr. Sneeds defense, that he and Mr. Hardy participated in a robbery but that Mr.
Sneed did not have any intent to kill, precluded acceptance of . . . Hardys alibi
defense. Brief of Appellant at 14, Ex parte Hardy, 804 So. 2d 298 (Ala. 2000)
(No. 95-0589).9 If the jury accepted Mr. Sneeds account of the crime, that he
and John Hardy robbed the store clerk and Mr. Hardy killed the clerk, the jury had
to reject Mr. Hardys alibi defense. Id. The court denied his motion.
In appealing his conviction and sentence, Hardy argued in his opening
briefs to the Alabama Court of Criminal Appeals and, subsequently, to the

Rule 13.4(a), Relief From Prejudicial Joinder, states, in relevant part: If it appears that
a defendant or the state is prejudiced by a joinder . . . of defendants in an indictment . . . or by
such joinder for trial together, the court may . . . grant a severance of defendants, or provide
whatever other relief justice requires. Ala. R. Crim. P. 13.4(a). The rule is modeled after
Federal Rule of Criminal Procedure 14(a), Relief From Prejudicial Joinder, which states, in
relevant part: If the joinder of . . . defendants in an indictment . . . appears to prejudice a
defendant or the government, the court may . . . sever the defendants trials, or provide any other
relief that justice requires. Fed. R. Crim. P. 14(a).
9

Our citations to Hardys state appeal briefs are to his brief to the Alabama Supreme
Court. On the three issues before us, Hardys brief to the Alabama Supreme Court essentially
mirrored the brief Hardy submitted to the Court of Criminal Appeals. With respect to the joint
trial issue, Hardys brief cited no Supreme Court case holding, as a matter of law, that requiring
two defendants to stand trial together on an indictment charging them with capital murder
offended the United States Constitution. We are aware of none.
15

Alabama Supreme Court, that the trial court abused its discretion in refusing to
sever [his] trial from . . . Sneeds and that this error violated [his] rights under
the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States
Constitution. Id. at 15. According to Hardy, the trial court should have
recognized from the outset that its refusal to hold separate trials would deny him
the fair trial guaranteed him (and Sneed) by the Fourteenth Amendment. And that,
he says, is what actually happened; he was denied a fair trial. This is the essence
of the argument he made.10
Hardy cited one United States Supreme Court decision, Zafiro v. United
States, 506 U.S. 534, 113 S. Ct. 933, 122 L. Ed. 2d 317 (1993), in support of his
argument that severance was required in order to avoid the denial of a fair trial.11

10

Hardys brief to the Alabama Supreme Court was replete with the words fair trial.
Although the brief did not specifically cite the Due Process Clause of the Fourteenth Amendment
or use the words due process, Hardys argument, stripped to its essence, was that he was
denied a fair trial and thus due process of law. A fair trial . . . is a basic requirement of due
process. In re Murchison, 349 U.S. 133, 136, 75 S. Ct. 623, 625, 99 L. Ed. 942 (1955).
If the joinder issue stated in the COA does not embrace the issue of whether the Alabama
Supreme Court should have vacated Hardys conviction because he had been denied a fair trial,
we consider the COA amended to include that issue.
11

Hardys brief cited two other Supreme Court cases, Zant v. Stephens, 462 U.S. 862,
103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983), and Dawson v. Delaware, 503 U.S. 159, 112 S. Ct.
1093, 117 L. Ed. 2d 309 (1992), to buttress his severance argument. Neither case addresses the
COA joinder issue. They were cited following this statement in Hardys brief:
Mr. Sneeds attorney elicited prejudicial testimony about Mr. Hardys affiliations,
that he had been involved with law enforcement before, and that he had some
history of violence. Mr. Sneeds lawyer told the jury that Mr. Hardy was a liar. If
16

In Zafiro, the Supreme Court granted certiorari to consider whether Rule 14 [of
the Federal Rules of Criminal Procedure] requires severance as a matter of law
when codefendants present mutually antagonistic defenses. Id. at 535, 113 S.
Ct. at 936; see supra note 8. The petitioners, who had been convicted of
conspiring, in violation of 21 U.S.C. 846, to possess cocaine, heroin and
marijuana with intent to distribute, urged the Court to adopt a bright-line rule,
mandating severance whenever codefendants have conflicting defenses. Id. at
538, 113 S. Ct. at 93738. The Court declined to adopt such a rule. The Court
held to the contrary, that [m]utually antagonistic defenses are not prejudicial per
se. Moreover, Rule 14 does not require severance even if prejudice is shown;
rather, it leaves the tailoring of the relief to be granted, if any, to the district
courts sound discretion. Id. at 538-39, 113 S. Ct. at 938.
According to the Alabama Court of Criminal Appeals,
the prosecution had attempted to introduce this evidence, that attempt would have
been error.
Brief of Appellant at 1415, Ex parte Hardy, 804 So. 2d 298 (Ala. 2000) (No. 95-0589). The
parenthetical phrase following the Zant v. Stephens citation is, (holding factors that are
constitutionally impermissible or totally irrelevant to the [capital] sentencing process [include] . .
. the race, religion, or political affiliation of the defendant . . . .). Id. The parenthetical phrase
following the Dawson v. Delaware citation is, (defendants membership in a white separatist
prison gang was irrelevant and inadmissible evidence in a capital trial). Id.

17

[w]eighing against severance is a preference for joint trials where

joint crimes are involved. The United States Supreme Court stated
the policy in Richardson v. Marsh as follows:
It would impair both the efficiency and the fairness of
the criminal justice system to require, in all these cases
of joint crimes where incriminating statements exist, that
prosecutors bring separate proceedings, presenting the
same evidence again and again, requiring victims and
witnesses to repeat the inconvenience (and sometimes
trauma) of testifying, and randomly favoring the
last-tried defendants who have the advantage of knowing
the prosecution's case beforehand. Joint trials generally
serve the interests of justice by avoiding inconsistent
verdicts and enabling more accurate assessment of
relative culpabilityadvantages which sometimes
operate to the defendant's benefit. Even apart from these
tactical considerations, joint trials generally serve the
interests of justice by avoiding the scandal and inequity
of inconsistent verdicts.
Hardy v. State, 804 So. 2d 247, 25758 (Ala. Crim. App. 1999) (citations omitted)
(quoting Richardson v. Marsh, 481 U.S. 200, 210, 107 S.Ct. 1702, 95 L.Ed.2d 176
(1987)) (citing Zafiro v. United States, 506 U.S. 534, 113 S. Ct. 933). The
Alabama Supreme Court agreed with this resolution of the joint trial issue.
Although it did not cite Zafiro, the Court of Criminal Appeals did so explicitly,12
and the Supreme Court relied on the authorities [it] cited. Ex parte Hardy, 804
So. 2d 298, 305 (Ala. 2000).

12

See Hardy v. State, 804 So. 2d 247, 257259 (Ala. Crim. App. 1999) (citing Zafiro,
506 U.S. 534, 113 S. Ct. 933).
18

The Alabama Supreme Court, however, did not deny Hardys severance
claim because public policy favors joint trials or the trial judge acted within his
discretion when he denied Hardys pretrial motion for severance; rather, the Court
addressed Hardys true federal claim, that he did not receive a fair trial as
guaranteed by the Fourteenth Amendment because Sneeds defense was
antagonistic to his own and Sneeds counsel acted as a de facto second prosecutor.
The Court denied the claim because, at the end of the day, the joint trial did not
operate to deny Hardy a fair trial. The evidence of guilt was overwhelming. The
Court found that
superabundant evidence, entirely independent of Sneeds influence on
the trial, prove[d] Hardys guilt of capital robberymurder. The
independent evidence consist[ed] of Hardys own inculpatory
statements, Hiness testimony about the prelude to and the aftermath
of the robbery-murder, the videotape of the robberymurder, and the
identification of the videotape image of the gunman as Hardy by
Hines, Partridge, and Townsend, who were all thoroughly
knowledgeable of Hardys features and appearance before and after
the commission of the robberymurder.
Id. Moreover, the same overwhelming evidence listed above would have been
admitted against Hardy had he been tried separately. The joint trial, while
judicially risky, . . . did not prejudice Hardy in the final analysis. Id. In other
words, the Alabama Supreme Court held that Hardy received a fair trial as
required by the Fourteenth Amendment.
19

2.
In his brief to the District Court, Hardy did not explain how the Alabama
Supreme Courts decision rejecting his severance claim was contrary to, or
involved an unreasonable application of, a United States Supreme Court holding,
namely Zafiro v. United States. Specifically, he did not explain how the holding
in Zafirothat Rule 14 does not require pretrial severance where the defendants
defenses are mutually antagonisticrequired the Alabama Supreme Court to
vacate his conviction and remand the case for a new trial. As a consequence, the
District Court dismissed his claim.
3.
Hardy has done no better in this court. He has not explained why we should
not defer to the Alabama Supreme Courts decision for a reason provided in 28
U.S.C. 2254(d)(1) and (2). Nor does he indicate Zafiros significance. This is
not surprising because Zafiro is a Federal Rule of Criminal Procedure case, not a
case announcing a principle of constitutional law.13 See Collins v. Runnels, 603

13

The Zafiro petitioners, in their opening brief to the Supreme Court, stated that the
case concern[ed] the constitutionally secured right to due process of law under Amend. V.
Brief for the Petitioners at 1, Zafiro v. United States, 506 U.S. 534, 113 S. Ct. 933, 122 L.Ed. 2d
317 (1993) (No. 91-6824). The Court did not explicitly mention the Fifth Amendments Due
Process Clause in interpreting Federal Rule of Criminal Procedure 14. Arguably, however, the
Court implicitly held that mutually antagonistic defenses also do not per se violate the due
process right to a fair trial; such a holding would not aid Hardys case.
20

F.3d 1127, 1132 (9th Cir. 2010) (Zafiro only applies to federal and not state court
trials.); Phillips v. Million, 374 F.3d 395, 398 (6th Cir. 2004) (Zafiro involved
the interpretation of Federal Rules of Criminal Procedure 8, 14, and 18, not the
United States Constitution.). Therefore, Zafiro was not binding on the Alabama
Supreme Court, and Hardys claim must instead rest on the Fourteenth
Amendments right to a fair trial. See Phillips, 374 F.3d at 398 (Zafiro thus has
no precedential weight in reviewing state court proceedings on due process
grounds[.]).
Zafiro, though not a constitutional case, does inform our response to
Hardys argument that he was denied a fair trial. Principally, Hardy argued that he
was denied a fair trial because, if tried alone, he would not have been subjected to
an additional prosecutor, Sneeds lawyer. As he stated in his brief to the Alabama
Supreme Court, Sneeds lawyer served as a second private prosecutor. Brief of
Appellant at 6, Ex parte Hardy, 804 So. 2d 298 (Ala. 2000) (No. 95-0589); see
also id. at 17 (John Hardy fought for his life on two fronts: the state and the
codefendants attorney acting as private prosecutor.); id. at 18 (Sneeds lawyer
was permitted to prejudice Mr. Hardy in ways that the state would not have been
permitted to do.). The Zafiro Court acknowledged that, under some
circumstances, a joint trial might present a risk of prejudice sufficient to warrant
21

severance under Rule 14. Zafiro, 506 U.S. at 539, 113 S. Ct. at 938. The secondprosecutor, finger-pointing situation Hardy complains of is not one of those
circumstances the Court identified. See id. Further, the Court stated that, in
Zafiro, proper jury instructions sufficed to cure any possibility of prejudice that
resulted from the co-defendants opening and closing arguments. 506 U.S. at 541,
113 S. Ct. at 939; cf. United States v. Blankenship, 382 F. 3d 1110, 1126 (11th
Cir. 2004) (holding that although the entire thrust of a codefendants defense was
to blame the other defendants, any prejudice was cured by a jury instruction that
counsels slanderous arguments were not evidence).
The specific circumstances of Hardys case further bolster our conclusion
that Hardys joint trial was not unfair. First, the trial court admonished the jury on
several occasions that arguments and statements of counsel were not evidence and
were not to be treated as such. Second, the video tape captured everything that
took place during the course of the robbery-murder and clearly showed that Hardy,
not Sneed, shot the victim. Third, whatever Sneeds lawyer said or implied (as to
which defendant shot the victim) in his cross-examination of the States witnesses
and in his argument to the jury, the prosecutor brought out in his examination of
the witnesses and emphatically pointed out to the jury in closing argument.

22

Finally, it was obvious to everyone in the courtroom that Hardy did the shooting
while Sneed was busy trying to open the cash registers.
In sum, Hardy has not carried his AEDPA obligation of establishing that the
Alabama Supreme Courts decision, that he failed to show that he was denied a
fair trial, was contrary to or an unreasonable application of clearly established
federal law. We therefore affirm the District Courts resolution of the first issue
designated in the COA.
B.
We will consider next whether joinder of the sentencing phase of Hardys
trial with Sneeds violated his federal constitutional rights.
In part II of his briefs to the Alabama Court of Criminal Appeals and
Alabama Supreme Court, Hardy challenged the trial courts handling of the
sentencing phase of his case under this heading: Consolidating Mr. Hardys and
his Co-defendants Capital Penalty Phase Trials Denied Mr. Hardy his Right to
Individualized Sentencing. Brief of Appellant at 18, Ex parte Hardy, 804 So. 2d
298 (Ala. 2000) (No. 95-0589). Hardy argued that joint penalty phase procedure
. . . violated [his] constitutionally guaranteed rights to due process, a fair trial, and
a reliable sentence under the Sixth, Eighth and Fourteenth Amendments to the
United States Constitution, under the Alabama Constitution of 1901, and under
23

Alabama law. Id. The Sixth Amendment contains several rights,14 but Hardys
brief cited none that were violated. Nor did the brief cite any United States
Supreme Court Sixth Amendment holdings that the Court of Criminal Appeals
was supposed to address. This no doubt explains why the Court of Criminal
Appeals, in addressing the joint penalty phase procedure argument said nothing
at all about a Sixth Amendment claim.15

14

The Sixth Amendment provides that

[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and
public trial, by an impartial jury of the State and district wherein the crime shall
have been committed, which district shall have been previously ascertained by
law, and to be informed of the nature and cause of the accusation; to be
confronted with the witnesses against him; to have compulsory process for
obtaining witnesses in his favor, and to have the Assistance of Counsel for his
defence.
U.S. Const. amend. VI.
The Supreme Court has applied the Sixth Amendments protections to the States through
the Due Process Clause of the Fourteenth Amendment. See, e.g., Pointer v. Texas, 380 U.S. 400,
407, 85 S. Ct. 1065, 1070, 13 L. Ed. 2d 923 (1965) (holding that Sixth Amendment right to
confront adverse witnesses extends to States through Fourteenth Amendment); Gideon v.
Wainwright, 372 U.S. 335, 34243, 83 S. Ct. 792, 796, 9 L. Ed. 2d 799 (1963) (holding that the
Fourteenth Amendment makes the Sixth Amendments guarantee of the right to counsel
obligatory upon the States).
15

In the habeas petition he filed in the District Court, Hardy did not assert that the joint
penalty phase procedure denied him a Sixth Amendment right. He asserted a specific Sixth
Amendment claim for the first time in his brief to this court. He argues that he was denied his
rights under the Sixth Amendments Confrontation Clause and the Fifth Amendment and that
[t]he state courts failed to address either the Sixth Amendment Confrontation Clause or due
process problems posed by the penalty-phase admission of Sneeds confession, which facially
incriminated Mr. Hardy. Thus, the federal habeas courts must review those aspects of the claim
de novo. Brief of Appellant at 28, Hardy v. Allen, No. 11-10240 (11th Cir. Mar. 7, 2011).
24

Part II of Hardys brief focused on a capital defendants Eighth Amendment

right to individualized sentencing.16 The Court of Criminal Appeals recited
Hardys claim thus:
Hardy contends that the trial court denied his constitutional right to
an individualized sentencing by refusing to sever his penalty phase
hearing from that of Sneed. The basis of this contention is essentially
that, under the circumstances, the jury would be unable to give
separate, personal consideration to the sentence of each defendant and
unable to base the sentence on each defendants own acts, statements,
and the evidence applicable to him. He argues that the risk of
prejudice by this joinder was too great to have been alleviated by jury
instructions.
Hardy, 804 So. 2d at 263.
After stating that, in capital cases, Alabama law required the guilt and
penalty phases of the defendants trial to be held before the same jury, except in
certain situations not present in the case, and that the same policy considerations
that favor joint trials in the guilt phase also apply in the sentencing phase, id., the
Court of Criminal Appealsciting Richardson v. Marsh, 481 U.S. 200, 107 S. Ct.
1702, and Lockhart v. McCree, 476 U.S. 162, 106 S. Ct. 1758, 90 L. Ed. 2d 137

16

This right is enforceable against the States through the Fourteenth Amendments Due
Process Clause. See e.g., Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954, 296465, 57 L. Ed.
2d 973 (1978) (holding that Ohio violated the Eighth and Fourteenth Amendments when it
sentenced a defendant to death pursuant to a statute that required the sentencer to impose a death
sentence absent three specific circumstances.). We assume that the citations of the Eighth and
Fourteenth Amendments meant that Hardy was deprived of a right secured by the Supreme
Courts Eighth Amendment holdings.
25

(1986)rejected Hardys argument that the Federal Constitution forbade a joint

trial of the penalty phase of a capital case, Hardy, 804 So. 2d at 26364. The court
turned, then, to the question of whether Hardy had been denied an individualized
sentencing determination.
The court began with a statement of what the Eighth Amendment required
and explained why Hardy was afforded that requirement.
The Eighth Amendment requires an individualized sentencing
determination in death penalty cases. The record does not support
Hardys claim that a joint sentencing hearing in this case made it
impossible for the jury in this instance to render this required
individualized sentencing decision as to each defendant. This was
not a case in which there was considerably more aggravating
evidence against one defendant than against the other. Both
defendants had been indicted and convicted of the same
robbery-murder. The evidence of aggravating circumstances that the
state presented at the sentencing hearing was identical as to each
defendant. In addition, each defendant presented mitigating evidence
relevant to his character and record. Hardys sister, Norma Jean
Newton, testified at the sentencing phase before the jury that Hardy
was 21 years of age when the crime was committed; that he was well
liked, helpful, did not have a reputation for violence, had never
committed a violent crime before this offense; and that the crime for
which he was convicted was out of character for him. Frank D.
Travis, a church youth director who became acquainted with Hardy
when he was counseling other youth in the Hardy home, testified that
Hardy was a nice kid; that he encouraged other kids to do the right
thing; and that he was peaceable and not a troublemaker. David
Burleson III, one of Hardys former teachers, testified he was shocked
to hear that Hardy had committed such a crime. Joe Willie Johnson, a
friend and former classmate of Hardys, testified that Hardy had a
good reputation for peaceableness. Lorraine Newton Hardy, his
26

mother, testified that he was a good boy and that she could not
believe that he had committed the crime charged, and she
recommended that his punishment be life imprisonment.
Id. at 263 (citations omitted) (citing Stringer v. Black, 503 U.S. 222, 112 S. Ct.
1130, 117 L. Ed. 2d 367 (1992); Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57
L. Ed. 2d 973 (1978)).
After reciting the evidence the State presented in aggravation and what
Hardy presented in mitigation, the court reviewed the trial courts jury instructions
and counsels arguments to the jury to determine whether the defendants had been
treated separately and given individual sentencing consideration.
Before, during, and after closing arguments, the trial court
specifically instructed the jury to give separate consideration to each
defendant. The jury was informed on each occasion that each
defendant was entitled to have his sentence decided on the evidence
and law applicable to him and that any evidence that was limited to
one defendant should not be considered as to the other defendant. In
addition, counsel for the defendants, as well as the prosecutor, in their
closing arguments, reiterated and emphasized the instructions of the
trial court in this regard. After closing arguments in the sentencing
phase, the trial court instructed the jury as follows:
You have heard two separate sentencing hearings that
were presented at the same time. As you listen to these
instructions and as you deliberate, it is your duty to give
separate personal consideration to the sentence of each
individual defendant.
When you do so, you must analyze what the evidence
shows with respect to that individual, leaving out of
27

consideration entirely any evidence admitted solely

against the other defendant.
Each defendant is entitled to have his sentence
determined from his own acts, statements and other
evidence in the case, which may be applicable to him.
Id. at 26364. The Court of Criminal Appeals, citing Richardson v. Marsh,
invoked the presumption that the jury understood and followed the trial courts
instructions, and found
nothing in the record that suggests that the jury was unable to weigh
the evidence separately, separate the aggravating and mitigating
circumstances applicable to each defendant, consider and weigh them,
and render the individualized decision required. The evidence as to
each defendant and the issues in the case were not complicated, were
straightforward, and obviously were easily understandable.
Id. at 264. The court therefore rejected the argument that the joint penalty phase
proceeding denied Hardy his Eighth Amendment right to individualized
sentencing.
In part II of his habeas petition to the District Court, Hardy stated the claim
he presented in his brief to the Alabama Court of Criminal Appeals in this
language: II: Joinder of Petitioners Sentencing Trial with his Codefendants
violated his Rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to
the United States Constitution. Petition for Writ of Habeas Corpus at 9, Hardy v.
Allen, No. 5:07-cv-1222-IPJ-RRA (N.D. Ala. Jun. 28, 2007). The only reference
28

in part II to these amendments is in this heading.17 Lockett v. Ohio is the only

17

The following replicates part II of Hardys habeas petition verbatim:

Petitioners penalty phase trial was consolidated with Mr. Sneeds. Both
Petitioner and Mr. Sneed repeatedly moved to sever their capital trials, but the
trial court denied these requests. Because Petitioners death sentence rests on a
consolidated penalty phase trial at which the jury was told to consider penalty
phase and guilt phase evidence that applied only to Mr. Sneed, Petitioners own
sentencing determination was unreliable. The joint penalty phase procedure and
sentencing used in this case violated Petitioners constitutionally guaranteed rights
to due process, a fair trial and a reliable sentence under the Sixth, Eighth and
Fourteenth Amendments to the United States Constitution.
Capital sentences must be individualized. In Lockett v. Ohio, 438 U.S.
586,604 (1978), the United States Supreme Court held that a capital defendant is
constitutionally entitled to present to the jury evidence of any aspect of [his]
character or record and any circumstances of the offense that [he] proffers as a
basis for a sentence less than death. The Supreme Court has stated that this
mandate that a death sentence be individualized renders inadmissible at the
penalty phase evidence which does not bear on the capital defendants personal
responsibility and moral guilt. Enmund v. Florida, 458 U.S. 782, 801 (1982).
See also Zant v. Stephens, 462 U.S. 862 (1983) and Lewis v. State, 380 So.2d
970, 979 (Ala. Crim. App. 1979).
At the penalty phase in this case, the trial court allowed the jury to
consider evidence from the guilt phase. The guilt phase evidence presented
against the co-defendant would have been inadmissible against Mr. Hardy, had
they had separate trials. However, at this penalty phase, guilt phase evidence
relevant only to Mr. Sneed was admitted while the jury considered the Petitioners
sentence. Mr. Sneeds oral statements to the police would not have been part of
the Petitioners conviction or sentencing determination had they had separate
trials. However, Petitioners sentence was rendered after evidence regarding
Ulysses Sneeds culpability and further prejudicial evidence solicited by Mr.
Sneeds attorneys were admitted.
The trial court attempted to address this concern at the penalty phase by
instructing the jury that it should not consider evidence admitted against the
co-defendant. The risk of prejudice, however, was too great to be alleviated with
a jury instruction. The jury was being asked to parse out the aggravating and
mitigating evidence in Petitioners case although that evidence was not separated
when it was presented to them. The State relied on its case at the guilt phase.
Petitioner renewed his objection to that evidence.
29

United States Supreme Court holding part II cites in support of his claim that he
was denied an individualized sentencing phase procedure.18
The States response to this claim, as quoted in the District Courts order
denying Hardys petition, was that Hardy had not shown that the Court of

The jurors were instructed to consider each defendant as an individual. But

the jurors were not told to clear their minds of all of the prejudicial evidence
introduced by and against Mr. Sneed at the guilt stage when considering the
appropriate sentence for Petitioner.
Petitioners penalty phase jury recommended by a 10-2 vote that he be
executed. The vote in this case belies any claim of harmless error. It was likely
that a proper sentencing proceeding at which the jury considered only evidence
applicable to Mr. Hardy would have changed the vote of at least one juror. See,
Mills v. Maryland, 486 U.S. 367 (1988) (constitutional violation if even a single
juror is precluded from considering mitigating circumstances).
Because Petitioner was entitled to that determination being based solely on
his acts, character and background, this Court must remand grant [sic] Petitioners
habeas corpus petition.
Petition for Writ of Habeas Corpus at 1012, Hardy v. Allen, No. 5:07-cv-1222-IPJ-RRA (N.D.
Ala. Jun. 28, 2007).
18

Hardy also cited three other Supreme Court decisions, supra note 17, but their holdings
do not aid his claim given our consideration of Lockett. See Mills v. Maryland 486 U.S. 367,
384, 108 S. Ct. 1860, 1870, 100 L. Ed. 2d 384 (1988) (remanding a death penalty determination
for resentencing when there was a substantial probability that reasonable jurors . . . may have
thought they were precluded from considering any mitigating evidence unless all 12 jurors agreed
on the existence of a particular such circumstance); Zant v. Stephens, 462 U.S. 862, 864, 103 S.
Ct. 2733, 2736, 77 L. Ed. 2d 235 (1983) (rejecting defendants claim that his death penalty must
be vacated because one of the three statutory aggravating circumstances found by the jury was
subsequently held to be invalid . . ., although the other two aggravating circumstances were
specifically upheld); Enmund v. Florida, 458 U.S. 782, 801, 102 S.Ct. 3368, 3379, 73 L. Ed. 2d.
1140 (1982) (reversing the Florida Supreme Court [for] affirm[ing] the death penalty . . . in the
absence of proof that [the defendant] . . . intended or contemplated that life would be taken).
30

Criminal Appealss denial of the claim 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 that the decision
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. Hardy v. Allen,
No. 5:07-cv-1222-IPJ-RRA, slip op. at 37 (N.D. Ala. Sept. 21, 2010) (citations
omitted) (internal quotation marks omitted). The State was correct; Hardy made
no such showing. All Hardy could say, as the District Court quoted him, was that
2254(d) does not apply here because the state courts decided Mr. Hardys claim
based on state law. Id. (quoting Petitioners Brief on the Merits and Request for
Evidentiary Hearing at 21, Hardy v. Allen, No. 5:07-cv-1222-IPJ-RRA (N.D. Ala.
Mar. 19, 2008). He therefore contended that the District Court should consider the
merits of the claim de novo. Id.
The District Court denied the part II claim because Hardy had not shown,
and could not show, that the Court of Criminal Appeals decision was contrary to,
or an unreasonable application of, clearly established federal law, or that it was an
unreasonable interpretation of the facts in light of the evidence before the court.
Hardy v. Allen, No. 5:07-cv-1222-IPJ-RRA, slip op. at 40 (N.D. Ala. Sept. 21,
2010).
31

In his brief to this court, Hardy frames his claim in these words:
Antagonistic defenses at the penalty-phase prevented the jury from
making a reliable judgment about the penalty, denied Mr. Hardys
Sixth Amendment right to confront witnesses against him, and denied
him due process. Combined, these constitutional violations deprived
him of individualized sentencing in violation of the Eighth
Amendment to the United States Constitution.
Brief of Appellant at 22, Hardy v. Allen, No. 11-10240 (11th Cir. Mar. 7, 2011).
Hardy contends that the Alabama Court of Criminal Appeals ignored his claims
under the Confrontation and Due Process Clauses, and that the District Court did
likewise; therefore, we should vacate the District Courts disposition of those
claims, and review them de novo or remand the claims to the District Court for de
novo review.
We reject Hardys argument and his request for several reasons. First, he
failed to exhaust his denial of confrontation and due process claims in the
Alabama courts and has not shown cause, and resulting prejudice, for failing to do
so. See 28 U.S.C. 2254(b)(c). Second, and alternatively, because he did not
present those two claims to the District Court,19 we will not entertain them in the
first instance. See Hill v. Jones, 81 F.3d 1015, 1020 (11th Cir. 1996) (As a

19

See supra note 15. Regarding his Confrontation Clause claim, it was not until he wrote
his opening brief to this court that he cited a Supreme Court holding dealing with the
Confrontation Clause, to wit, Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d
476 (1968).
32

general rule, we will not entertain issues or arguments on appeal that were not
fairly presented to the district court.). Third, he failed to argue in the District
Court that the Alabama Court of Criminal Appeals decisiondenying his claim
that he did not receive individualized sentencing as required by Lockett v.
Ohiowas deficient for the reasons set out in AEDPA, see 28 U.S.C.
2254(d)(1)(2); and fourth, assuming that he made the argument, it fails because
the Court of Criminal Appeals decision properly applied Lockett.
For the foregoing reasons, we affirm the District Courts resolution of the
second issue designated in the COA.
C.
We now discuss whether the Alabama appellate courts conclusions that
Hardys right against self-incrimination was not violated by the prosecutors
comments was an unreasonable application of clearly established federal law.
Hardy claims that Sergeant Dwight Hale of the Decatur Police Department,
while testifying as a witness for the State in the guilt phase of the trial, commented
on Hardys silence after he had been read his Miranda warnings following his
arrest in Kentucky.20 The Alabama Court of Criminal Appeals described the claim

20

See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The
Fifth Amendment states that [n]o person . . . shall be compelled in any criminal case to be a
witness against himself . . . . U.S. Const. amend. V. This right against self-incrimination is
33

as Hardy stated it in his brief to the court, then recounted the events that gave rise
to the claim.
Hardy contends that the trial court erred by allowing a state
witness to impermissibly comment on [his] post-Miranda silence.
Shortly after Hardy was arrested in Kentucky, he was advised of his
Miranda rights by Sergeant Dwight Hale of the Decatur Police
Department. He signed a form acknowledging that he understood
those rights, he waived them, and he agreed to give a statement. He
was questioned by Hale and Sergeant John Boyd, also of the Decatur
Police Department. That statement was not recorded; however, Hale
made notes of what Hardy said.
In his statement, Hardy denied involvement in the crime, but
made certain damaging admissions that implicated him in it. Hale
testified for the state, relating the substance of Hardys statement.
Hardy bases his contention that Hale impermissibly commented on
his post-Miranda silence on the following testimony:
A. [HALE]: . . . [W]e told [Hardy] that we had also found a cash
register that had been recovered just a short distance from
where he lived, and that some fingerprints had been lifted
off of those items that were recovered. He was still crying,
denying any involvement in anything.
Then he was told that we knew he was involved, you could
see him on the videotape, there was no denying it, and that if
he had any kind of evidence to prove that he was not involved
in anything, was not in Decatur on that night, that if he would
tell us about it we would do our best to investigate it and follow
up and make it known to everyone.

applicable to the States through the Due Process Clause of the Fourteenth Amendment. See
Malloy v. Hogan, 378 U.S. 1, 6, 84 S. Ct. 1489, 1492, 12 L. Ed. 2d 653 (1964) (We hold today
that the Fifth Amendments exception from compulsory self-incrimination is also protected by
the Fourteenth Amendment against abridgment by the States.).
34

Again, we told him about the tape. We told him that the vehicle,
you could see Hiness vehicle at one section of the tape and it
looks like a 78 Ford as it drove in front of the doors on the tape.
Q. [PROSECUTOR]: Back up just a second, Dwight. What was
his response when you told him if he had anything you could
check out or investigate to indicate that he was not guilty?
[HARDYS COUNSEL]: We object to that. That violates our
clients right of the Fifth Amendment.
THE COURT: Sustained.
Hardy v. State, 804 So. 2d 247, 26465 (Ala. Crim. App. 1999) (alterations in
original) (footnote omitted) (quoting Brief of Appellant at 27, Hardy v. State, 804
So. 2d 247 (No. 95-0589)). After the court sustained the objection,21 the
prosecutors direct examination of Hale continued, during which Hale related that
Hardy admitted that he tried to get the cash register open. When Hale asked him
what happened to the gun and clothes, Hardy said that the gun was wrapped in
plastic and he hid it in the attic in his fathers house in Tanner. He said the clothes
were burned in the backyard at his fathers house. Id. at 265. As for the cash
register, he said it was thrown away. Id.

21

Since Hardys counsel did not want the court to give the jury a cautionary instruction,
the court did not give one. However, the court did admonish the jury on several occasions during
the trial not to treat counsels statements as evidence.
35

Later in the day, after the jury had been excused for the night, Hardy moved
for a mistrial, and this exchange took place.
[HARDYS COUNSEL]: We would move for a mistrial on the
following grounds. The District Attorney phrased one of his questions
earlier today in such a manner that was tantamount to a comment of
the defendant. . . .
....
[HARDYS COUNSEL]: Failure to deny something. . . . Were not
going to ask for a cautionary instruction. Well just ask for a mistrial.
We think the cure would be worse than the
THE COURT: I agree. As I recall the question, it was in the course of
the discussion between Mr. Hardy [and] Lieutenant Hale, and he was
just reciting what was stated at the time right there when they were in
Louisville. Do you know of anythingthe objection was sustained.
Hardy v. State, 804 So. 2d at 266 (alterations in original).
On direct appeal to the Alabama Court of Criminal Appeals and Alabama
Supreme Court, Hardy argued that Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49
L. Ed. 2d 91 (1976), required the trial court to grant his motion for mistrial. Doyle
held that the prosecutions use for impeachment purposes of [the defendants]
silence, at the time of arrest and after receiving Miranda warnings, violated the
Due Process Clause of the Fourteenth Amendment. Id. at 619, 96 S. Ct. at 2245.
Hardy claimed that when Hale and Sergeant Boyd were questioning him in
Kentucky, he invoked his right to stop the interrogation, his right to silence, the

36

moment Hale asked him if he had any evidence that would prove that he was not
involved in the murder. Hardy further claimed that the question the prosecutor put
to Hale on the witness stand[w]hat was his response when you told him if he
had anything you could check out or investigate to indicate that he was not
guilty?, Hardy v. State, 804 So. 2d at 265 (internal quotation marks
omitted)called for the answer that Hardy said nothing and invoked his right to
silence. The Court of Criminal Appeals disagreed. It held that up to the time the
question was asked,
it appears from the record that Hardy had waived his Miranda rights,
had agreed to talk to the officers, and appeared to be fully
cooperating. There is nothing in the record to suggest that he ever
contemplated electing to remain silent or deciding that he wanted to
stop answering questions. Did Hardy invoke his right to silence when
he was asked if there was anything the officers could check out or did
he respond in some other way? We do not know; certainly the jury
did not know. We agree with the statenothing was presented from
which it could be inferred that Hardy had elected to remain silent or
invoked his right to do so. The record is devoid of anything that
indicates silence on Hardys part.
Hardy v. State, 804 So. 2d at 267.
In prosecuting his petition for habeas relief in the District Court, Hardy
argued that the Court of Criminal Appealss decision rejecting his claim amounted
to an unreasonable application of the Supreme Courts holding in Griffin v.

37

California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965). As the District
Court concluded, Griffin is inapposite.22
The question before the District Court therefore was whether the Court of
Criminal Appeals unreasonably applied Doyle. The District Court concluded that
it did not.
First, there is nothing in the record to suggest that Hardy ever invoked
his right to remain silent. In fact, Hardy signed a waiver of his
Miranda rights, then made a statement to Decatur Police Officers
Hale and Boyd in which he made admissions implicating him in the
crime. Furthermore, the testimony of Sergeant Hale concerning
Hardys statement did not implicate Doyle, since Sergeant Hale said
nothing to indicate that Hardy was in fact silent when asked if he had
any kind of evidence to prove that he was not involved in the crime.
Clearly, the state courts rejection of this claim did not involve an
unreasonable application of Doyle and did not result in a decision that
was based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.

22

In Griffin, the defendant was convicted of murder. He did not testify in the guilt phase
of the case, but took the stand in the penalty phase. The trial court instructed the jury on the issue
of guilt, stating that a defendant has a constitutional right not to testify. But it told the jury:
As to any evidence or facts against him which the defendant can reasonably be
expected to deny or explain because of facts within his knowledge, if he does not
testify or if, though he does testify, he fails to deny or explain such evidence, the
jury may take that failure into consideration as tending to indicate the truth of such
evidence and as indicating that among the inferences that may be reasonably
drawn therefrom those unfavorable to the defendant are the more probable.
Griffin v. California, 380 U.S. 609, 610, 85 S. Ct. 1229, 1230, 14 L. Ed. 2d 106 (1965). Hardys
case did not involve a comment on his refusal to testify at trial.

38

Hardy v. Allen, No. 5:07-cv-1222-IPJ-RRA, slip op. at 5253 (N.D. Ala. Sept. 21,
2010).
In his brief to this court on appeal, Hardy argues that the District Court, like
the Court of Criminal Appeals beforehand, misapplied the Supreme Courts
holding in Doyle. We are not persuaded.
For these courts to have misapplied Doyle, it must appear from the record
that Hardy invoked his right to cease the interrogation and to stand silent the
moment Hale asked him if he had any evidence that could prove that he was not
involved in the murder. Whether Hardy did so is a factual issue. Hardy is arguing
that the Court of Criminal Appeals decision that he did not invoke his right to
cease the interrogation and stand silent was 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)(2).23
The decision comprises findings of factwhat Hardy said to Hale and Boyd
and vice versa that might indicate whether Hardy wanted to stop the
interrogationand a conclusion of lawthe legal effect of the facts. The Court
of Criminal Appeals finding of factthat nothing was presented from which it

23

Hardys brief does not explicitly advance this argument in the 2254(d)(2) context,
but we treat his brief as having done so.
39

could be inferred that Hardy had elected to remain silent or invoked his right to do
so. The record is devoid of anything that indicates silence on Hardys part,
Hardy v. State, 804 So. 2d at 267is a finding that Hardy never explicitly
invoked his right to silence. The finding is presumptively correct. See Wood v.
Allen, 558 U.S. ___, ___, 130 S. Ct. 841, 845, 175 L. Ed. 2d 738 (2010) (Under
2254(e)(1), a determination of a factual issue made by a State court shall be
presumed to be correct, and the petitioner shall have the burden of rebutting the
presumption of correctness by clear and convincing evidence.). Moreover, it is
supported by the fact that Hardy did not appeal the trial courts denial of his
motion to suppress on constitutional grounds his statements to Hale and Boyd;24
nor did he object to the statements when admitted into evidence through Hales
testimony, or challenge the constitutional admissibility of the evidence on direct
appeal. Finally, it is clear that after he supposedly invoked his right to stop the
interrogation and stand silent, Hardy continued to answer the officers questions.
The interrogation stopped, according to Hale, when he wanted to think about it
and pray about it and talk to me again later. At that time we ended the interview

24

Hardy moved the trial court pretrial to suppress the statements on the ground that he
had not knowingly and voluntarily waived his right to silence, i.e., that his statements were
involuntary. The court heard his motion during a trial recess and summarily denied it.
40

and he was taken over to the Jefferson County Correctional Center. Hardy v.
State, 804 So. 2d at 26566.
For the reasons stated above, we affirm the District Courts resolution of the
third issue designated in the COA.25
AFFIRMED.

25

Hardy also moved the District Court pursuant to Fed. R. Civ. P. 60(b) to set aside its
previous judgment, order the State to file a copy of the videotape of the crime that was
introduced at trial, make the videotape part of the record of this case, and review [his] claims in
light of an independent review of the videotape. This motion, which the District Court denied,
is frivolous and warrants no further discussion.
41