ORDER

MYRON H. THOMPSON, United States District Judge.

In this petition for a federal writ of habeas corpus by a prisoner in state custody under sentence of death, the petitioner and the respondents, pursuant to an order of this court of May 6, 1996, issued a joint statement concerning claims in the petition. Specifically, the parties stipulated to claims that: (1) should be heard in this district court; (2) have been procedurally defaulted in state court, without sufficient showing of cause and prejudice, or fundamental miscarriage of justice, that would permit them to be heard in this court; and finally, (3) are in dispute as to whether they may be reached on the merits in this court.

As further directed by this court in the same May 1996 order, the United States Magistrate Judge produced a recommendation on September 9, 1996, distinguishing which among the third category of disputed claims should and should not go forward and be heard at the Stage II trial on the merits. The petitioner and the respondents were then given an opportunity to lodge objections to the recommendation, and each side filed specific objections on September 23, 1996.

Subsequently, on December 12, 1996, the parties submitted a joint proposed pretrial order setting forth the petitioner's claims that will be presented to this court for trial on the merits, as well as the parties' positions regarding certain disputed issues. On December 18, 1996, a pretrial conference was held, and in March 1997 the parties submitted their briefs addressing the issues raised by the habeas corpus petition.

In this order, the court considers the recommendation of the United States Magistrate Judge and the various objections to it raised by the parties. The court adopts the recommendation, as modified herein, and specifies the claims that will be heard on the merits in the Stage II trial.

Before turning to the specific claims considered in this order, the court must address two important threshold issues. The first concerns whether the court, in determining which of the petitioner's claims should be heard on the merits, should consider new arguments and objections proffered by the respondents after the September 13, 1996, cut-off date for lodging objections to the magistrate judge's recommendation. The second threshold issue, first raised by the respondents in the joint proposed pretrial order filed after the magistrate judge's recommendation was produced, involves the question of whether the amendments to the federal habeas corpus statute, introduced by the Antiterrorism and Effective Death Penalty Act of 1996, 110 Stat. 1214 (AEDPA), enacted on April 24, 1996, apply to this case and foreclose the petitioner's right to a review in this court of claims that were adjudicated on the merits in the prior state court proceedings.

Regarding the first threshold matter, the respondents, in both their portion of the joint proposed pretrial order and their brief filed on March 17, 1997, have sought to inject new arguments and objections to the magistrate judge's recommendation into this case. The petitioner, relying heavily on a decision of the former Fifth Circuit Court of Appeals,Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B 1982), argues that all such arguments and objections have been waived because they come too late, given the deadline imposed by the magistrate judge for objections to his recommendation, and the provisions of 28 U.S.C.A. § 636(b).

The petitioner misconstrues the law regarding how a district court is to treat objections to findings and recommendations in magistrate judges' reports. The statute he cites in support of his contention that the court should disregard the respondents' untimely objections provides in relevant part:

"Within ten days after being served with a copy, any party may serve and file written objections to [the United States magistrate's] proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate."

Certain of the respondents' newly-introduced arguments and objections pertain to claims that the parties have previously stipulated to as not being procedurally defaulted, and therefore properly subject to trial on the merits in Stage II. The court is troubled that the respondents failed to raise these issues, which concern the petitioner's claims of ineffective assistance of counsel and discriminatory peremptory challenges, when the parties filed their joint stipulation, and chose instead to remain silent until long after the deadline for objecting to the magistrate judge's recommendation had passed. Nonetheless, because they raise legitimate questions concerning the propriety of a trial on the merits for the claims at issue, the court will consider the respondents' newly-introduced arguments and objections in determining whether the claims should be heard at the Stage II trial.

It is also disturbing that the respondents failed to raise the second important threshold issue, the possible applicability of AEDPA to this case, until after the magistrate judge had issued his recommendation and the deadline for objections had passed. However, this issue may easily be disposed of in light of the United States Supreme Court's decision inLindh v. Murphy, ___ U.S. ___, 117 S.Ct. 2059 (1997), which was handed down after the parties had submitted their briefs in this case. In Lindh, the Court unequivocally concluded that certain amendments to the habeas corpus statute introduced by AEDPA, including modifications to 28 U.S.C.A. § 2254(d), the provision at issue here, were meant by Congress to apply only to cases that were filed after the statute was enacted on April 24, 1996. See ___ U.S. ___, 117 S.Ct. at 2063. The instant petition was filed on July 7, 1995. Therefore, the amendments to the habeas statute that the respondents rely upon to foreclose argument in this court on the petitioner's state-court-adjudicated claims have no bearing here. See King v. Moore, 196 F.3d 1327, 1329 n. 1 (11th Cir. 1999). Accordingly, this court will ignore the respondents' contentions regarding AEDPA's effect on the fate of the petitioner's claims.

Having addressed the two threshold issues, the court now turns to the individual disputed claims of the petition.

Claim A

The magistrate judge found that the first claim, which corresponds to claim A in the original petition for habeas relief filed on July 7, 1995, styled the "sufficiency of the evidence" claim, is not procedurally defaulted, having been properly raised at trial and on appeal in the Alabama state courts. The respondents do not challenge the magistrate judge's recommendation with respect to this claim, and thus, having reviewed the findings of the magistrate judge, the court adopts this part of the recommendation.

Claim B

Next, the magistrate judge found that the second claim, originally claim B, styled the "general Brady/Giglio claim of suppression of exculpatory evidence," merely duplicated other, more particular Brady andGiglio claims, or offered only generalized and unsubstantiated allegations, and was therefore due to be rejected. The petitioner did not object to this finding, and therefore, after review, the court accepts this part of the recommendation as well, and will not hear the general suppression claim.

Claim I

The court likewise adopts the recommendation with respect to the fifth, sixth, and seventh claims, originally parts (i), (ii) and (iii) of claim I, concerning sentencing phase instructions on, and consideration of, mitigating circumstances. The petitioner has also not objected to these findings. Thus, the court will not hear these claims.

Claims C and D

The recommendation counsels rejection of the two claims dealing with the testimony of Michael Joe Hubbard, revolving around the State of Alabama's alleged failure to disclose impeachment evidence relating to pending robbery charges against Hubbard, a deal struck for his testimony in exchange for lenient treatment or dismissal of those charges, and perjured testimony he offered as a result of that deal (the third and fourth claims; originally, claims C and D).

Since the petitioner has objected to dismissal of these claims, they will be given closer attention than the previous claims for which no objection was lodged. The parties dispute whether or not these claims relating to Hubbard's testimony are defaulted, and, if so, whether or not for good cause and with prejudice.

A state prisoner seeking federal habeas corpus relief, who has failed to raise and pursue a federal constitutional claim in state court (to "exhaust" it), or who attempted to raise it in a manner not permitted by state procedural rules, is barred from pursuing the same claim in federal court absent a showing of cause for, and actual prejudice resulting from, the default. See Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506 (1977); Alderman v. Zant, 22 F.3d 1541, 1548 (11th Cir.),cert. denied, 513 U.S. 1061, 115 S.Ct. 673 (1994).

The petitioner raised these claims at the third post-conviction hearing in state court in 1990, where he presented testimony by the victims of the robberies committed by Hubbard. For example, one of the victims of the alleged robberies, Sam Malachi, testified that he had no recollection that he had signed an affidavit in 1983 requesting that the charge against Hubbard be dropped, though he did recognize his signature on the affidavit as being genuine. After reviewing all the evidence, the state trial court denied the petition for relief, finding this claim barred because it violated a state rule against successive petitions, and also without merit. This decision was affirmed by the court of criminal appeals. See Bell v. State, 593 So.2d 123 (Ala.Crim.App. 1991).

This court must honor a state procedural ruling that rests on an independent and adequate state ground. See Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1043 (1989). Consideration of a federal claim on habeas review is thus foreclosed when "the last state court rendering a judgment in the case has `clearly and expressly' stated that its judgment rests on a state procedural bar." Id. at 263, 109 S.Ct. at 1043. The magistrate judge correctly concluded that where, as here, a state court has ruled in the alternative, addressing both the independent state procedural ground and the merits of the federal claim, the federal court should apply the state procedural bar and decline to reach the merits of the claim. See id. at 264 n. 10, 109 S.Ct. at 1044 n. 10; Richardson v. Thigpen, 883 F.2d 895, 898 (11th Cir. 1989), cert. denied, 492 U.S. 934, 110 S.Ct. 17 (1989).

Though an adequate and independent finding of procedural default bars federal habeas review, exception is made where the petitioner can show cause for the default and prejudice that results from it. See Harris, 489 U.S. at 262, 109 S.Ct. at 1043. Although cause is not categorically defined, see Smith v. Murray, 477 U.S. 527, 533, 106 S.Ct. 2661, 2666 (1986), the court should look to "whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645 (1986). See also McCleskey v. Zant, 499 U.S. 467, 497, 111 S.Ct. 1454, 1472 (1991).

A prosecutor has a duty to provide a defendant with all evidence in the State's possession materially favorable to the defendant's defense. See Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196 (1963). When the defendant's guilt or innocence may turn on the reliability of a witness, the prosecutor's nondisclosure of evidence affecting the credibility of this witness falls within this general rule. See Napue v. People of the State of Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177 (1959). Promises made by the State to a witness in exchange for his testimony relate directly to the credibility of the witness. See Giglio v. United States, 405 U.S. 150, 155, 92 S.Ct. 763, 766 (1972). Therefore, where the credibility of the witness is an important issue in the case, without which there could have been no indictment and no evidence to carry the case, the prosecutor has a duty to disclose evidence of any promises made by the State to such a witness in exchange for his testimony. See id. at 154-55, 92 S.Ct. at 766.

As the Eleventh Circuit has explained, "Giglio does not require that the word `promise' is a word of art that must be specifically employed."Brown v. Wainwright, 785 F.2d 1457, 1464-65 (11th Cir. 1986). Nor is the phrase "any understanding or agreement" limited to bona fide, enforceable grants of immunity. Haber v. Wainwright, 756 F.2d 1520, 1524 (11th Cir. 1985).

There is no doubt that certain discovery documents with potential bearing on Hubbard's credibility were not disclosed until April 1996, and should have been disclosed in response to requests made at and before trial. It is also plain that Hubbard's testimony was crucial to the prosecution's case against the petitioner. Any interference by state officials with a defendant's rightful and timely efforts to obtain information can be grounds for a showing of cause. See Hollis v. Davis, 941 F.2d 1471 (11th Cir. 1991), cert. denied, 503 U.S. 938, 112 S.Ct. 1478 (1992). The magistrate judge found that cause for default of these claims was lacking, but did not actually consider these newly discovered pretrial statements, instead focusing on arguments raised and evidence offered at the state court hearings. Thus, the court finds this material, bearing on the credibility of Hubbard's testimony at trial, which has only recently been disclosed by the state, to be defaulted for cause.

Along with cause, a petitioner must show that the unavailability of that information actually prejudiced his case. See Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715 (1992); United States v. Frady, 456 U.S. 152, 168, 102 S.Ct. 1584, 1594 (1982); Alexander v. Dugger, 841 F.2d 371, 374 (11th Cir. 1988). `Actual prejudice' means that the petitioner must show that "there is a reasonable probability that, but for [the missing evidence] the result of the proceeding would have been different." United States v. Cronic, 466 U.S. 648, 694, 104 S.Ct. 2039, 2068 (1984). That is, where a defendant challenges his conviction, he must show that there exists "a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695, 104 S.Ct. at 2069. With respect to a Brady/Giglio type claim that material has been suppressed, more specifically, federal habeas review of a defaulted claim is warranted where there is "`a reasonable probability that had the evidence been disclosed to the defense, the result of the proceeding would have been different. A `reasonable probability' is a probability sufficient to undermine confidence in the outcome.'" Julius v. Jones, 875 F.2d 1520, 1523 (11th Cir.), cert. denied, 493 U.S. 900, 110 S.Ct. 258 (1989) (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3382 (1985)). And, in determining the existence of prejudice, the court "must consider the totality of the evidence before the judge or jury." Kimmelman v. Morrison, 477 U.S. 365, 381, 106 S.Ct. 2574, 2586 (1986).

Even though the court agrees with the petitioner that Hubbard's newly-disclosed statements reinvigorate the argument that these claims were defaulted for cause, there is still insufficient showing of prejudice to the petitioner.

When first interviewed by investigators a few days after the disappearance of the victim, Hubbard categorically denied any knowledge of the circumstances surrounding the disappearance, and sought to present an alibi placing him elsewhere at the time. This statement was made during a lie-detector pre-test, and the administrator of the test considered the responses by Hubbard to be false. Several months later, Hubbard made another statement to police explaining how the crime allegedly occurred, laying out a story that was substantially consistent with his later testimony at trial. Hubbard also explained his reasons for lying in his earlier statement.

Hubbard's later statement does have some inconsistencies with the testimony at trial, but these go to entirely collateral or trivial issues and are thus not relevant impeachment evidence. See Fed.R.Evid. 608 (b); United States v. Grover, 85 F.3d 617, 1996 WL 226262 at *5 (4th Cir.) (unpublished) ("District courts should, however, exclude extrinsic evidence which seeks to impeach by contradiction when the fact that the evidence supports or undermines is collateral or irrelevant to the material issues in the case."), cert. denied, 519 U.S. 893, 117 S.Ct. 235 (1996).

The petitioner makes no allegation that the initial denial by Hubbard of any knowledge of what happened to the victim was credible or that the "alibi" offered at that time has any factual support behind it. Instead, the petitioner seems to urge upon the court the relevance of the mere inconsistency of Hubbard's statement with his eventual trial testimony. The court finds there is no reasonable probability that, had the jury considered this evidence for impeachment purposes, it would have produced reasonable doubt respecting guilt in the minds of the jurors, such that the verdict would likely have been different. The later statement and testimony by Hubbard were in accord with circumstantial evidence offered by other witnesses, and his explanation for lying during his initial interview was far more credible than the story he concocted during that interview. Even when considered together with the fact that charges against Hubbard were dropped shortly after trial, the evidence is not enough to show prejudice. The petitioner has now had ample opportunity to discover any evidence that a deal was struck with Hubbard to elicit perjured testimony, and though the fact that charges were dropped might support an inference that a deal was struck, there is no other evidence that such a deal was struck or that, if one was, perjured testimony followed from it. A possible inference is not "evidence",see Fed.R.Evid. 401, and so there is scant support from this new Hubbard material for the argument that Hubbard's testimony could be impeached or proven dishonest before a jury. The Hubbard claims will therefore be dismissed because of procedural default and failure to show both cause and prejudice.

Before turning to the next claim, the court must consider an additional aspect of claims C and D that, though raised during the petitioner's third post-conviction hearing in 1990, was not emphasized in the instant petition and thus not considered by the magistrate judge in his recommendation. The petitioner seeks to use this aspect of claims C and D to bolster his contention that he suffered the requisite prejudice from the State's non-disclosure of Hubbard's earlier statement denying involvement in the murder. Specifically, the petitioner contends that, in addition to an alleged deal regarding the pending robbery charges, Hubbard struck a deal with prosecutors to avoid being named as a co-defendant in the Mims murder. The petitioner has re-emphasized this component of his Giglio/Brady claims regarding Hubbard's testimony in his latest briefs in light of deposition testimony he recently has elicited from one of the police investigators involved in the case. The petitioner alleges that during this deposition, which was taken only after the magistrate judge produced his recommendation, the investigator testified that he made a deal with Hubbard regarding the Mims murder, informing Hubbard that how he responded to the investigator's questions would determine whether he would be treated merely as a witness in the investigation, or as a defendant. The petitioner contends that this testimony helps establish that Hubbard gave synthetic testimony at trial in exchange for leniency on the part of the prosecuting authorities. Additionally, the petitioner avers that in light of this evidence of a deal between Hubbard and the State, he suffered prejudice at trial because he could have used Hubbard's inconsistent statements — had they been produced before trial as required — to challenge the "thoroughness and good faith motivation of the investigation."

Despite the petitioner's vigorous arguments to the contrary, the court concludes that this sparse evidence of an alleged deal to treat Hubbard as a witness to the Sims murder, rather than as a defendant, is insufficient to establish the requisite prejudice. At bottom, the petitioner simply seeks to fashion from the new deposition testimony an additional explanation for why the inconsistency of Hubbard's December 18, 1981, statement and his trial testimony establishes that Hubbard lied at trial to save himself. Consequently, the analysis set out above is unaffected by the existence of this evidence. Once again, the petitioner has failed to satisfy the court that anything beyond a mere potential inference exists to indicate that in exchange for leniency Hubbard provided perjured testimony about his involvement in the murder of Charles Mims.

The court also notes that the petitioner could hardly have been oblivious to the fact that the determination of Hubbard's role in the murder has been a critical issue from the very outset of this case. As a result, the petitioner has long had every opportunity, and incentive, to discover evidence regarding both why Hubbard was not named as a co-defendant in the murder trial, and whether Hubbard escaped prosecution for the murder as a result of a deal he had with the prosecuting authorities. As discussed above, the petitioner so far has been unable to uncover any convincing evidence to this effect.

Thus, the court re-affirms its conclusion that the Hubbard claims are due to be dismissed on the basis of procedural default and the lack of both cause and prejudice. The court also notes, however, that to the extent the newly-obtained deposition testimony of the police investigator is relevant to other claims that will be adjudicated in the Stage II trial on the merits, such as the claim concerning the trial judge's refusal to charge the jury on the accomplice theory regarding Hubbard's testimony, the petitioner will have an opportunity to introduce the testimony in support of his arguments.

Claims E and M

Because the parties stipulated in their joint statement that the petitioner's claims alleging ineffective assistance of counsel at trial and on appeal were not procedurally defaulted and were therefore due to be heard on the merits in Stage II, the magistrate judge did not address these claims in his recommendation. Now, however, the respondents argue that almost every one of the plethora of ineffective assistance of counsel claims raised by the petitioner are in fact procedurally defaulted, having never been raised in the state court proceedings. The respondents assert that there are only five specific claims that may be heard here at the trial on the merits, all others having been procedurally defaulted.

The history of the petitioner's ineffective assistance of counsel claims in trial court is as follows. In his first post-conviction proceeding, based upon an amended petition for writ of error coram nobis that was heard by the state trial judge, the petitioner raised seven claims, two of which were withdrawn in open court at the hearing. The five surviving claims concerned trial counsel's alleged ineffectiveness in: (1) failing to provide the court with proper jury instructions on the law regarding accomplices; (2) failing to object properly to statements allegedly made by the victim (and raise this issue on appeal); (3) failing to prepare any evidence for submission at the sentencing hearing; (4) failing to object to the trial judge's failure to weigh adequately the aggravating and mitigating circumstances during sentencing; and (5) failing to raise at trial or any post-trial proceeding (a) that under the factual circumstance of the case death penalty is disproportionately cruel and unusual punishment; (b) that the Alabama death penalty statute, historically and in this case, has been applied in an arbitrary, capricious, and freakish fashion; (c) that the death penalty was discriminatorily applied to the petitioner because of his and the victim's race and economic status; (d) that Alabama's appellate review of death sentences is inadequate; (e) that electrocution is excessively cruel; that the death penalty is excessive; and (f) that the imposition of the death penalty in this case would violate the petitioner's constitutional rights because of the systematic exclusion from the jury of all citizens with religious or moral scruples against capital punishment.

At the next post-conviction state proceeding, based upon the petitioner's claim of newly-discovered evidence, no new claims of ineffective assistance of counsel were raised. Nor were any such claims alleged at the third, and final, state proceeding.

Thus, the respondents are correct in observing that only five claims of ineffective assistance were actually considered by the state courts in the course of the petitioner's post-conviction proceedings. As is true regarding all of the petitioner's habeas claims, the ineffectiveness claims are procedurally defaulted if they were not raised in the state collateral proceedings, absent a showing of cause and prejudice. See Weeks v. Jones, 26 F.3d 1030, 1046 (11th Cir. 1994) (holding that presentation of some ineffective instances in state court does not preserve in federal court other or all instances of ineffective assistance that were not presented in state court claims); Footman v. Singletary, 978 F.2d 1207, 1210-11 (11th Cir. 1992) (holding that a habeas petitioner may not present instances of ineffective assistance of counsel in his federal petition that the state court has not evaluated).

The petitioner seeks to avoid this harsh consequence by arguing that all of his claims may be heard on the merits by this court because the state courts, in addressing his claims of ineffective assistance raised in the error coram nobis proceeding, evaluated the totality of trial counsel's conduct based upon the entire record. In proffering this argument, the petitioner relies upon a doctrine first enunciated by the Fifth Circuit Court of Appeals in Vela v. Estelle, 708 F.2d 954 (5th Cir. 1983), cert. denied sub nom. McKaskle v. Vela, 464 U.S. 1053, 104 S.Ct. 736 (1984). According to the Vela doctrine, if it has been established that the state courts that reviewed a petitioner's ineffective assistance claims considered counsel's conduct as a whole, on the basis of the entire record, and if the new claims alleged in the petitioner's habeas petition stem from conduct that appears in that record, those new claims may be heard by the habeas court despite not having been specifically raised in state court. See id. at 959-960.

Although the Eleventh Circuit has never directly applied this doctrine to permit a petitioner to pursue claims in federal court that were not explicitly raised in state proceedings, it has expressed its approval of the rationale underlying the doctrine. See Francis v. Spraggins, 720 F.2d 1190, 1193 n. 6 (11th Cir. 1983), cert. denied, 470 U.S. 1059, 105 S.Ct. 1776 (1985). More recently, however, in Footman, supra, the court expressly declined to address the doctrine's continuing vitality. The Footman court found that even if the doctrine were still viable, it does not apply where the state court had summarily denied the petitioner's motion without necessarily having evaluated the entire record, and where an inference that such a review occurred is not warranted because the applicable state law does not mandate that the entire record be considered if an ineffective assistance claim is deemed insufficient. 978 F.2d at 1211 n. 4. The court also observed that the federal requirement that a court consider the record in its totality when evaluating an ineffective assistance of counsel claim is unavailing in this situation, because it does not apply to state court review. Id.

Despite the Eleventh Circuit's silence in Footman regarding the continued viability of the Vela doctrine, in light of that court's express approval of the doctrine in Francis, which has not subsequently been called into question or overruled, this court will apply the doctrine to the petitioner's claims of ineffective assistance.

The cases cited above establish that the fundamental rationale underlying the Vela doctrine is that a finding of procedural default is inappropriate where the state courts actually conducted their own independent review of the particular conduct on which the newly-raised ineffective assistance of counsel claims rest, even if the new claims were not specifically raised in the state court proceedings. For instance, in Francis the ineffective assistance claim at issue concerned the trial counsel's statements during closing argument. The Eleventh Circuit held that, although the petitioner had not cited this particular ground in support of his claim in state court, that court had nonetheless reviewed the totality of counsel's representation at trial, and had in fact specifically noted that counsel had made the contested closing argument. See Francis, 720 F.2d at 1192. Thus, the Eleventh Circuit concluded that the state habeas court had "reviewed the particular conduct on which the claim rest[ed]," and therefore that the petitioner was not in default of the state procedural rule. Id. at 1193. Similarly, in Vela, the court's holding depended critically on the fact that

"all the instances of ineffective assistance alleged in [petitioner's] supplemental brief to this Court were contained in the trial record reviewed by the state habeas court when it denied [petitioner's] original petition. This petition argued ineffective assistance of counsel on the basis of counsel's entire performance. . . . In denying [petitioner's] petition, the state habeas court cited a number of instances in which counsel performed his duties well, examples never mentioned in [petitioner's] petition. The state court's findings therefore indicate that the court carried out its own independent analysis of counsel's performance."

In applying this doctrine to the facts of the instant habeas petition, this court must carefully examine the record of state proceedings to ascertain whether the state courts actually reviewed the trial counsel's conduct implicated by the petitioner's new claims of ineffective assistance of counsel. Only those new claims targeting conduct that the court concludes was subject to the state courts' independent review will be found not to be barred by a procedural default. For those newly-raised claims that allege facts or concern conduct that the state courts did not consider during the error coram nobis proceeding, a procedural default will apply, unless the petitioner has established cause and actual prejudice, as described above.

The starting point for this analysis is the memorandum opinion that sets forth the state court's findings of fact and conclusions of law reached after the error coram nobis hearing. The petitioner properly directs the court's attention to a portion of this opinion referred to as "facts concerning [counsel's] representation as a whole." The state court's analysis of the trial counsel's preparation for trial found in this section of the opinion, although brief, belies any claim by the respondents that the state court did not consider any portions of the record or other evidence pertaining to aspects of trial counsel's performance not specifically alleged to be deficient in the petitioner's petition for writ of error coram nobis. Rather, this section of the opinion establishes that the state court, while it may not have comprehensively evaluated trial counsel's conduct in its entirety, did review certain elements of his performance unrelated to the five claims of ineffective assistance of counsel described above.

Specifically, this portion of the state court's opinion indicates that it examined trial counsel's handling of: (1) the filing of pre-trial motions, including discovery motions; (2) negotiations with the State over a potential plea bargain; (3) investigations concerning the State's investigators involved in the case; and (4) the pre-trial investigation of witnesses for both the State and the defense.

This court's examination of the state court record, as well as the new claims of ineffective assistance of counsel that the petitioner intends to pursue in the instant habeas action, establishes that the claims concerning trial counsel's failure to investigate or develop exculpatory or mitigating evidence, including his failure to meet with state investigators and take appropriate steps to learn the identity, and probe the knowledge, of potential government or defense witnesses, are not procedurally defaulted. The court reaches this decision because the state courts reviewed the portions of the trial record pertaining to the conduct of trial counsel contested in these particular claims.

Additionally, the court finds on the basis of its examination of the record that all allegations of ineffective assistance of counsel set forth in ¶¶ 77-112, 114-19, 121-22, 124-57, 159-193 of the petition for writ of habeas corpus have been procedurally defaulted because they were not exhausted in the state court proceedings. The record provides no reasonable grounds for a conclusion that the state courts actually evaluated trial counsel's handling of the issues implicated by these claims. As a result, absent a showing of cause and prejudice, the court will not hear these claims at the Stage II trial on the merits. Because the parties have not yet had occasion to address this specific issue, the court will order that they submit briefs regarding the question of whether the procedural default of these claims should be excused on the basis of cause and prejudice.

Thus, the court will hear on the merits the five. allegations of ineffective assistance of counsel that the parties agree may be so heard, as well as those claims set forth in at ¶¶ 75-76, 113, 120, 123, and 158 of the petition for writ of habeas corpus, which have not been procedurally defaulted. The court will determine which, if any, of the remaining claims of ineffective assistance of counsel set forth in the habeas corpus petition will be heard on the merits after it considers the parties' briefs regarding whether cause and prejudice has been established for those claims.

Claim F

In the petitioner's ninth claim, originally part (i) of claim F, he alleges that his constitutional rights were violated by the prosecution's discriminatory use of peremptory challenges to exclude black jurors. In their joint statement regarding procedural default issues, filed before the magistrate judge produced his recommendation, the parties stipulated that this claim is to be reached on the merits in the Stage II trial. Now, however, the respondents assert that this challenge, framed and argued by the petitioner as arising under Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824 (1965), is not properly before the court, having been raised for the first time in argument. In support of this assertion, the respondents construe the discriminatory-peremptory-challenge claim raised in the petition for writ of habeas corpus as one based not upon Swain, but rather upon the more recent — and permissive — standard introduced by the Supreme Court in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986).

The court disagrees with the respondents' reading of this claim, and concludes that the petitioner has consistently asserted a Swain challenge throughout the pendency of the instant proceeding. In his petition for writ of habeas corpus, the petitioner included a specific allegation, ¶ 217, that sets forth a Swain claim in unmistakable terms:

"Upon information and belief, Petitioner contends that the State, through its prosecutor, had consistently used its peremptory strikes in a racially discriminatory manner in prior criminal cases involving black defendants."

While other allegations in the petition, if proved, certainly also could lend support to a Batson claim, the explicit reference to historical discrimination in ¶ 217 belies any contention by the respondents that the petitioner failed to assert a challenge to his conviction grounded on Swain. Moreover, during the instant habeas proceeding the petitioner has never strayed from arguing this claim on the basis of Swain. As the petitioner correctly points out, his response to the respondents' assertions concerning this claim in their procedural-default brief was based wholly and explicitly on Swain, as are the corresponding arguments in the petitioner's two recently-filed trial briefs.

Accordingly, the court will hear the petitioner's claim of discriminatory peremptory challenges, based upon the standards articulated in Swain, on the merits in the Stage II trial.

Claim N

The next claim, which was the first of the amended petition filed on July 10, 1996, and there numbered `N', concerns newly discovered evidence about the testimony of Joe Austin, Jr. Austin testified at trial that the petitioner told him the very night of the victim's disappearance that he and Hubbard had robbed him. Now a statement given by Austin to police months before trial has come to light, wherein Austin says that several days after the disappearance, the petitioner told him that he and Hubbard had robbed and killed the victim, and that Hubbard had fired the first shot, albeit at the petitioner's direction.

These could be accurate and non-conflicting statements. The evidence is as yet insufficiently developed to determine whether or not Austin's story changed in order to `boost' the prosecution account of events, or whether in fact he was averring that the petitioner spoke to him on both occasions, only the first occasion of which was brought out at trial. There is also new evidence showing that Austin was targeted in a sting operation that had the specific purpose of pressuring him to produce testimony inculpating the petitioner, and though due to be tried the same day as the petitioners s trial on the felony charges that followed from this operation, the charges were not pursued. Beyond that, a state police official wrote a letter to the district attorney in another jurisdiction asking for lenient treatment for Austin in another criminal matter as reward for his help with the petitioner's prosecution. This letter, too, has only recently been turned over to the petitioner.

The magistrate judge's recommendation found that this material falls squarely within the rules of Brady and Giglio and that cause for default was established. In its objections to the recommendation, the respondents argue that this conclusion is erroneous because the petitioner's post-conviction counsel was given information that would have enabled him to discover the evidence and raise this claim in state court. Specifically, the respondents assert that after the hearing in the first post-conviction state court proceeding, the petitioner's counsel was informed by the State that it had information indicating that Hubbard had admitted shooting Charles Mims, and counsel moved for a supplemental hearing based on this newly-discovered evidence. The respondents note that this motion was granted, and the petitioner was given time to conduct an investigation into this evidence prior to the supplemental hearing. The record establishes that no such action was actually taken by the petitioner's counsel, the respondents contend, despite his alleged knowledge regarding the identity of the state investigator who was the source of the newly-disclosed evidence. Additionally, the respondents argue that this same state investigator also authored the letter requesting leniency regarding Austin's pending criminal prosecution, and so a reasonable investigation by the petitioner's post-conviction counsel would have led him to that letter prior to the supplemental state court hearing.

The respondents' argument collapses of its own weight, however, given the meager support provided by the layers of unsubstantiated conjecture and inference that underlie it. The record does not provide an adequate basis to conclude that the information alluded to by the petitioner in his motion for a supplemental hearing in state court was in fact the pre-trial statement that Austin gave the police regarding Hubbard's role in Mims's murder. The respondents assert that discovery in the instant habeas action has established that the only reference to Hubbard having shot Mims was the Austin pretrial statement, and thus the respondents infer that the petitioner must have been describing this statement when he moved for a supplemental hearing after the first post-conviction hearing. However, the respondents have misread or ignored the actual record, which in fact shows that the newly-discovered evidence concerned a statement allegedly made by Hubbard to one Ronnie Wadsworth, not to Joe Austin, Jr., regarding Hubbard's involvement in the murder. Thus, the information obtained by the petitioner's post-conviction counsel had nothing whatsoever to do with Austin, and the magistrate judge's conclusion that counsel had absolutely no way of knowing about the Austin statement still stands.

The respondents exacerbate the ill effects of their misreading of the record by further asserting that the petitioner learned, or should have learned, during the state proceedings the identity of the author of the letter requesting lenient treatment for Austin, since the author was also the state investigator to whom Austin's statement was made. Obviously, not having obtained any information at all regarding the Austin statement, the petitioner's counsel could hardly have further uncovered the fact that the investigator to whom the statement was made and the author of the letter were one and the same man.

Thus, the court rejects the respondents' arguments, and instead agrees with the magistrate judge's conclusion that cause for default has been established regarding the Austin evidence. Now the court goes further and finds that the possibility of prejudice to the petitioner warrants trying this claim at the Stage II trial. Specifically, and in brief, the court notes that Hubbard's testimony was crucial to the State's case, and the judge's ruling that Hubbard was a participant but not an accomplice was itself crucial to the weight accorded his testimony. It is by no means certain that Austin's statement, to the degree that it could impeach Hubbard, would have earthshattering impact on the petitioner's case. But the parties have already agreed that the claim concerning the judge's instruction on accomplice liability was not defaulted and should go forward, and the sufficiency of the evidence claim should go forward. This Austin evidence is intimately linked to both those claims as well, and so it only makes sense to allow it to go forward, both for the sake of consistency and for its cumulative value. It is also not fanciful to think that a jury would believe both that Hubbard lied about his role to save himself and that Austin lied about the petitioner's admissions to him to buy his way out of jail.

The respondents disagree that the petitioner has established the requisite prejudice to permit the court to hear this claim on the merits. Citing Demarco v. United States, 415 U.S. 449, 94 S.Ct. 1185 (1974), they assert that the critical question is whether an agreement for lenient treatment was entered into between the prosecutorial authorities and Austin before the petitioner's trial. Because the record is devoid of any evidence establishing that such an agreement was made prior to trial, the respondents argue, the petitioner has suffered no prejudice due to the late disclosure of the Austin evidence.

The record contradicts the respondents' arguments, however. In contrast to the sparse evidence proffered by the petitioner concerning his claim that a deal had been struck between Hubbard and the State in exchange for Hubbard's trial testimony, the newly-disclosed Austin evidence provides substantial support for the petitioner's assertion that Austin testified pursuant to an agreement with the State.

Additionally, the nature of Austin's pretrial statement casts it in a different, more prejudicial, light than the recently-disclosed Hubbard pretrial statement. As noted above, the Hubbard statement was a categorical denial of any involvement in the Mims murder, which was subsequently contradicted by other pre-trial statements, as well as Hubbard's testimony at trial. The petitioner sought to convince this court that the mere inconsistency of the statement and the trial testimony establishes a reasonable probability that the jury, had it learned of the inconsistency, would have entertained a reasonable doubt as to the petitioner's guilt. By contrast, here the petitioner does not rely upon the mere inconsistency of Austin's pre-trial statement and trial testimony to demonstrate prejudice, but rather upon the fact that they differed critically in content.

Essentially, the petitioner urges the court to conclude that a jury could have construed the evidence as follows: in his pre-trial statement, made before any deal had been struck with the state, Austin accurately and completely described to investigators Hubbard's admission to him that he had fired the first shot; later, after having been pressured by the State to provide testimony inculpating the petitioner, and having entered into an agreement in which he was promised lenient treatment for such testimony, Austin changed his story both to make it appear more reliable (changing the timing of Hubbard's statement to the very night of the victim's disappearance), as well as more consistent with Hubbard's trial testimony and damaging to the petitioner (omitting the fact that Hubbard was in fact the first to fire a shot). Thus, here the petitioner asserts that the previously-undisclosed pretrial statement by Austin, had it come to light at trial, would not only have provided ammunition for the impeachment of both Hubbard's and Austin's critical trial testimony due to the presence of important inconsistencies, but also that there are reasons for the jury to credit the pretrial statement, which inculpates Hubbard but could be understood to exculpate the petitioner, as being more accurate and truthful than the trial testimony.

For the foregoing reasons, claim N will be adjudicated on the merits in the Stage II trial.

Claim O

The last (and 22nd) claim brought by the petitioner, claim O of the amended petition, is one of judicial misconduct by the state trial judge, Walter Hayden. The magistrate judge concluded, for the same reasons as in the previous amended claim concerning the Austin testimony, that cause for default was established, and that this court should thus decide whether prejudice was also established and the claim should be considered on the merits in the Stage II trial. The respondents objected to this conclusion on the grounds that this material, like the Joe Austin material, was not discovered earlier primarily due to the neglect of post-conviction counsel for the petitioner, who failed to conduct timely discovery to obtain this material. But, like the Austin material, this information was in the exclusive control of the State all these years, and the petitioner had no reason or means to know that it even existed, and certainly had no way to obtain it other than to rely on the State to disclose it in a timely fashion.

The court agrees with the petitioner and the magistrate judge that the confidential memo from the Alabama Department of Public Safety, dated April 22, 1982, concerning the investigation of the disappearance of Charles Mims, disclosed only with great reluctance in April 1996 after service of a subpoena upon the Chilton County District Attorney's office in November 1995, falls within the scope of exculpatory material originally sought at trial in 1983. This material is defaulted for cause, like the Austin material, discussed above, even though counsel could conceivably have uncovered it during state post-conviction proceedings. The petitioner may "rely on a belief that the prosecutors will comply with the Constitution and will produce Brady material on request." Julius, 875 F.2d at 1525; Hollis v. Davis, supra. It is an entirely unreasonable assertion that post-conviction counsel for the petitioner should have sought discovery of materials specifically implicating the trial judge's complicity with the prosecution. It is merely fortuitous, or non-fortuitous, that an offhand reference to such involvement exists within a report turned over as part of general discovery of potentially exculpatory material. It is doubtful that the State itself would have uncovered this material upon direct request for material calling the impartiality of the. judge into question, so the respondents will. not be heard to complain that the petitioner should have speculated about such material at an earlier stage of appeal.

It remains, then, for this court to address the question of prejudice. The standard of prejudice is, as above, that there must be "a reasonable probability that had the evidence been disclosed to the defense, the result of the proceeding would have been different. A `reasonable probability' is a probability sufficient to undermine confidence in the outcome." Bagley, 473 U.S. at 682, 105 S.Ct. at 3382.

Thus, one approach to the question of prejudice would be to examine whether the trial judge handled the trial in a manner strongly suggesting that the results would have been different had another, impartial judge been on the bench. This is a strict approach, because

"Disqualification of a judge for actual bias or prejudice is a serious matter and should only be required when the evidence is compelling. United States v. Balistrieri, 779 F.2d 1191, 1202 (7th Cir. 1985), cert. denied sub nom. DiSalvo v. United States, 475 U.S. 1095, 106 S.Ct. 1490 (1986) [J]udges for the most part are presumptively capable of overcoming [biasing] influences and rendering evenhanded justice; and only a strong, direct interest in the outcome of a case is sufficient to overcome that presumption."

But when the impartiality of a trial judge is at issue, the prejudice standard for habeas review of a defaulted claim must also assimilate tests for compliance with due process. For some defects or errors at trial are so basic as to be "`structural defects in the constitution of the trial mechanism,'" Sherman v. Smith, 89 F.3d 1134, 1138 (4th Cir. 1996) (quoting Arizona v. Fulminante, 499 U.S. 279, 309-10, 111 S.Ct. 1246, 1264-65 (1991)), such that "`without these basic protections, a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair.'" Id.; see also Thompson v. Borg, 74 F.3d 1571 (9th Cir.), cert. denied, ___U.S.___, 117 S.Ct. 227 (1996). "Judicial bias is one of those `structural defects' that automatically entitles a petitioner for habeas corpus to a new trial." Brecht v. Abrahamson, 507 U.S. 619, 629-30, 113 S.Ct. 1710, 1717 (1993); see also Tumey v. Ohio, 273 U.S. 510, 534, 47 S.Ct. 437, 445 (1927); Bracy v. Gramley, 81 F.3d 684, 688 (7th Cir. 1996); Walker v. Lockhart, 763 F.2d 942, 962 (8th Cir. 1985), cert. denied, 478 U.S. 1020, 106 S.Ct. 3332 (1986).

Unlike the first approach, which is focused more on the degree of the judge's bias and the degree to which it can be proved, this approach concentrates more on constitutional requirements for fair trial procedure, and does not gauge fairness exclusively by outcome:

"Although most cases of bias by trial judges have involved the question whether the judge's bias was likely to influence the jury, that is not an essential element. Even when the biased judge neither is the trier of fact nor is shown to have conveyed his bias to the jury that is the trier of fact, there can be a violation of due process which requires a reversal of the conviction. United States v. Holland, 655 F.2d 44, 47 and n. 5 (5th Cir. 1981) (per curiam); United States v. Brown, 539 F.2d 467, 468-70 (5th Cir. 1976) (per curiam)."

When examining judicial bias, federal courts have looked freely to federal and state common law, statutes, and ethical canons, which tend to substantially overlap. See, e.g., Tumey, supra (looking to state cases and laws on judicial conflict of interest, and to English origins of common law); Robertson v. California, 498 U.S. 1004, 111 S.Ct. 568 (1990) (Blackmun, J., dissenting from denial of certiorari) (looking to federal cases, Title 28 of the United States Code, and California statutes);Partington v. Gedan, 880 F.2d 116 (9th Cir. 1989) (looking to Hawaii statutes, judicial ethical canons and state supreme court rules), vacated on other grounds, 497 U.S. 1020, 110 S.Ct. 3265 (1990).

Canon 3 A. (4) of the Alabama Canons of Judicial Ethics says that a judge should neither initiate nor consider ex parte communications concerning a pending or impending proceeding. Similarly, finding as a matter of federal law that ex parte communications between a judge and a prosecutor could have improperly influenced the judge, the Ninth Circuit Court of Appeals overturned summary dismissal of a habeas petition and remanded for an evidentiary hearing. See McKenzie v. Risley, 915 F.2d 1396 (9th Cir. 1990). In Alabama, Canon 3 C. (1)(a) says that "a judge should disqualify himself in a proceeding in which his . . . impartiality might reasonably be questioned, including . . . instances where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding," which tracks identical language in federal judiciary law at 28 U.S.C. § 455 (a) (b)(1). of course, state canons and codes of judicial conduct merely inform as to conduct that may violate federal due process; the tests for disqualification should not substitute for or be conflated with a showing of impermissible bias under due process standards. See Fero v. Kerby, 39 F.3d 1462, 1479-80 (10th Cir. 1994).

Federal cases have elaborated that judicial bias or prejudice rising to a level that violates due process must stem from a predisposition against the defendant that is actual, see Nichols v. Sullivan, 867 F.2d 1250, 1254 (10th Cir.), cert. denied, 490 U.S. 1112, 109 S.Ct. 3169 (1989);Dyas v. Lockhart, 705 F.2d 993, 996 (8th Cir.), cert. denied, 464 U.S. 982, 104 S.Ct. 424 (1983), or that is readily presumed from a judge's conduct or comments, or connection to one of the participants, see Bracey, supra DelVecchio v. Illinois Dept. of Corrections, 31 F.3d 1363, 1380 (7th Cir. 1994) (en banc) (Noting, however, that the "bad appearances" alone do not rise to the level of a due process violation; instead the judge must be faced "with circumstances that present `some [actual] incentive to find one way or the other' or `a real possibility of bias.'"), cert. denied, 514 U.S. 1037, 115 S.Ct. 1404 (1995); Nichols, 867 F.2d at 1254 ("the likelihood of bias or appearance of bias can, in certain circumstances, be so substantial as to create a conclusive presumption of actual bias"); see also Wiley v. Wainright, 793 F.2d 1190, 1193 (11th Cir. 1986); United States v. Meester, 762 F.2d 867, 885 (11th Cir.),cert. denied, 474 U.S. 1024, 106 S.Ct. 579 (1985); Texaco, Inc. v. Federal Trade Commission, 336 F.2d 754, 760 (D.C. Cir. 1964) (speech by judge plainly revealed prejudgment constituting due process violation),vacated on other grounds, 381 U.S. 739, 85 S.Ct. 1798 (1965); Walker v. Lockhart, supra (judge told deputy to shoot defendant down if he makes a move because he intends to burn the S.0.B. anyway). The bias must be personal as opposed to judicial in nature, see United States v. Carmichael, 726 F.2d 158, 160 (4th Cir. 1984); United States v. Carignan, 600 F.2d 762, 763 (9th Cir, 1979), derived from extrajudicial sources and not merely from the evidence or record before the judge, see United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 1710 (1966); Sine v. Local No. 992 Int'l Bhd. of Teamsters, 882 F.2d 913, 914 (1989), and beyond what the balanced judgment of a reasonable person could be expected to overcome. See In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625 (1955); Fero v. Kerby, 39 F.3d at 1478-79; Partington v. Gedan, 880 F.2d at 132; United States v. Conforte, 624 F.2d 869, 881 (9th Cir.), cert. denied, 449 U.S. 1012, 101 S.Ct. 568 (1980).

Case law in Alabama on judicial bias and prejudice is consonant with these federal cases, and thus any evidence that a judge's attitude or conduct falls foul of state law should also be relevant to due process and prove useful for an analysis of prejudice under federal habeas law.

Interest, bias, or prejudice is a potential ground for recusal or disqualification of a judge in Alabama. See Shell v. Shell, 267 So.2d 461 (Ala.Crim.App.), cert. denied, 267 So.2d 467 (Ala. 1972); Ex Parte White, 300 So.2d 420, 429 (Ala.Crim.App.) (bias as predisposition to decide a certain way), cert. denied, 300 So.2d 439 (1974); Morgan County Comm'n v. Powell, 293 So.2d 830, 839 (Ala. 1974). However, "A mere accusation of bias unsupported by substantial fact does not require disqualification of a judge." Ross v. Luton, 456 So.2d 249, 254 (Ala. 1984). "In [Alabama], the general rule is that a judge is presumed to be qualified and unbiased, McMurphy v. State, 455 So.2d 924, 929 (Ala.Crim.App. 1984), and the movant has a substantial burden in proving otherwise." Irby v. State, 429 So.2d 1179 (Ala.Crim.App. 1983).

"Evidence must be presented to prove the judge possesses a personal bias as opposed to one that is judicial in nature. Personal as opposed to judicial bias is characterized by an attitude of extrajudicial origin derived non coram judice." Moreland v. State, 469 So.2d 1305, 1307 (Ala.Crim.App. 1985). Moreover, "Bias and prejudice must be shown by the conduct of the trial judge and may not be presumed or inferred by his subjective views." Hartman v. Board of Trustees of the University of Alabama, 436 So.2d 837, 841 (Ala. 1983). "The appellant must present evidence to prove the personal bias of a judge, or else [he] cannot prevail." Slinker v. State, 344 So.2d 1264, 1268 (Ala.Crim.App. 1977);Walker v. State, 358 So.2d 800, 804 (Ala.Crim.App. 1978). In McMurphy, the court observed,

"As stated by the Alabama Supreme Court in the case of In re Raines [Raines v. State], 294 Ala. 360, 317 So.2d 559 (1975), `pretrial involvement or knowledge on the part of a trial judge does not necessarily create an unconstitutional risk [of] bias'. Id., at 366, 317 So.2d 559 . . . ."

The material that the petitioner has recently uncovered shows that the investigating police officers obtained the opinion of Judge Hayden, in conjunction with that of the assistant district attorney, that the body of the victim must be located before the petitioner could be prosecuted. It cannot be ascertained from the terse reference to the judge's opinion in the memorandum itself what degree of involvement the judge, who later presided at trial, had with the investigation, or at whose behest or instigation.

Testimony obtained by the petitioner in recent depositions of three participants in the investigation of the Mims murder has shed little additional light on the trial judge's possible role in the investigation, but does tend to establish that the conversation alluded to in the memorandum was an isolated event, and not suggestive of a larger role for the judge in the investigation. Captain (Corporal in 1982) Jack Purdue, one of the state investigators, testified that he recalls a "brief conversation" with Judge Hayden in which the two men, and possibly a second investigator, Benny Mims, discussed the ongoing Mims murder investigation in "general terms." Purdue stated that he did not know at the time of this conversation that Judge Hayden would eventually preside at the petitioner's trial. According to Purdue's testimony, the judge, after having been briefed on the progress of the investigation, advised Purdue that he should "keep looking" for the victim's body, stating that "you really need to have a body before you go into court." Purdue testified that this conversation was the only time he discussed the Mims case with Judge Hayden prior to the trial.

Benny Mims, the second investigator involved in the Mims case, testified during his recent deposition that he did not recall participating in any discussions with Judge Hayden about the Mims murder investigation prior to trial. He also stated that it was not his practice to discuss ongoing investigations with Judge Hayden when he knew that the judge would preside at trial.

In her deposition, Janice Clardy, the assistant district attorney who tried the petitioner's case, testified that she could not recall having discussed the ongoing investigation with Judge Hayden before the trial, but that she was not in the habit of having such discussions with the judge. She did, however, describe the close personal relationship she had with Judge Hayden at that time.

Despite the fact that the petitioner so far has been unable to obtain evidence from participants in the State's investigation of the Mims murder establishing that Judge Hayden played a significant role in that investigation, the overall record before the court provides a fair inference that the judge in fact did take personal, as opposed to merely judicial, interest in the investigation and prosecution. This conclusion is significantly bolstered by a review of the trial transcript, which reveals a clear statement by Judge Hayden declaring his sympathy with the "strong feelings" in the community about the case, due to his own personal knowledge of the families involved for "twenty-five years, probably."

Thus, while the court will not go so far as to agree with the petitioner that Judge Hayden "immersed the judiciary into the investigation . . . making his judicial role in the trial a fallacy," it does find that the petitioner has proffered sufficient evidence to convince the court that it should hear the judicial bias claim at the Stage II trial on the merits. Several considerations motivate this conclusion. First, the alleged bias or prejudice on the part of Judge Hayden may be inferred from both the judge's comments at trial and his connection to one or more of the participants in the case, including the State's investigators and the victim and his family. Second, it is beyond dispute that the alleged bias or prejudice stemming from the judge's longstanding relationship with the victim's family is personal, derived from extra-judicial sources and not merely from what the judge saw and heard on the record. Finally, the bias or prejudiced alleged here constitutes "an aversion or hostility of a kind or degree that a fair-minded person could not entirely set aside when judging" the petitioner, "an animus more active and deep-rooted than an attitude of disapproval toward certain persons because of their known conduct." See Conforte, 624 F.2d at 881.

As additional evidence of the trial judge's bias and prejudice, the petitioner points to Judge Hayden's conduct during the error coram nobis proceeding that followed the original trial. Specifically, the petitioner directs the court's attention to the fact that during this proceeding the judge adopted verbatim the findings of fact and conclusions of law submitted by the State.

It is appropriate for this court to re-examine the trial judge's rulings on motions before and at trial to discover whether they were of questionable judgment, and thus might have been motivated by bias against defendant. See Balistrieri, 779 F.2d at 1204. Because Judge Hayden presided at the error coram nobis proceeding, it is likewise appropriate for this court to assess whether his rulings there evince prejudice or bias on his part. The court cannot conclude, though, that the judge's wholesale adoption of the State's findings, standing alone, was a symptom of judicial bias or prejudice, without the existence of additional evidence that he did not have or neglected to obtain "command of the legal issues and the evidentiary proceedings," and that his bias or prejudice caused him to "abdicate his adjudicative role." See Fields v. City of Tarpon Springs, 721 F.2d 318, 320-21 (11th Cir. 1983) (affirming trial court's verbatim adoption of party's factual findings on these bases); see also In re Colony Square Co., 819 F.2d 272, 276-77 (11th Cir. 1987). However, in light of the fair inference established by the evidence before the court that Judge Hayden was motivated in this case by a personal interest in its outcome, the court does find that the verbatim adoption of the State's findings is a factor that it should consider in adjudicating the issue of judicial bias on the merits.

This case, like so many habeas petitions, has had a tortuous and protracted journey through the court system. The trial judge has long since passed away. It may be that the trial of evidence the petitioner would have to retrace to establish the degree of personal prejudice towards him that would be sufficient for him to prevail on the merits of this claim, if it even exists, is too cold and attenuated to follow. But given the reasonable inference of judicial bias created by the recently uncovered evidence of the judge's involvement in the Mims murder investigation, and the on-the-record statements of the judge at trial, the petitioner should be afforded a chance to argue this claim on the merits at the Stage II trial, consistent with the legal and evidentiary standards presented herein.

Accordingly, for the reasons stated above, it is

ORDERED:

(1) That the recommendation of the United States Magistrate Judge entered on September 9, 1996, is adopted, as modified herein;

(2) That the objections to the recommendation filed by the petitioner on September 23, 1996, are overruled;

(3) That the objections to the recommendation filed by the respondents on September 23, 1996, are overruled; and

(4) That claims numbered A, N and O of the petition and the amended petition shall be heard at the Stage II trial on the merits along with the claims earlier agreed upon by both parties.