CASE NO. 3:04-cv-595-TH (WO).
January 23, 2007
MEMORANDUM OPINION AND ORDER
TRUMAN HOBBS, Senior District Judge
This cause is before the Court on the Petition for Writ of Habeas Corpus (Doc. # 1) filed on June 16, 2004. The Court has carefully reviewed the Petition (Doc. # 1), the Petitioner's Brief in Support of the Petition for Writ of Habeas Corpus (Doc. # 2), the Recommendation of the Magistrate Judge (Doc. # 26), and the Objections to the Recommendation of the Magistrate Judge (Doc. # 27). For the reasons set forth below, it is the judgment of the Court that the Petition for Writ of Habeas Corpus is due to be DENIED, the Recommendation of the Magistrate Judge is due to be ADOPTED, and the Objections to the Recommendation are due to be OVERRULED.
The sole basis for Pitts's habeas petition is that he was denied the right to effective assistance of counsel when his appellate attorney failed to appeal the denial of his motion to suppress. It is Pitts's contention that no probable cause existed for his arrest because his arrest hinged on the uncorroborated confession of an accomplice. Therefore, Pitts claims that because his arrest was unlawful, and his unlawful arrest was the cause of his confession, his confession should not have been admitted.
What Pitts fails to show here in either his habeas petition or in his objections to the Magistrate Judge's recommendations, is on what basis he arrives at the conclusion that probable cause for an arrest cannot be based on the uncorroborated confession of an accomplice. Pitts attempts to cite a state statute for the proposition that a conviction cannot stand solely on a co-defendant's statement. While the code section Pitts cites here does not address that statement, it is, in any case, irrelevant. Whether or not a conviction can stand based on the uncorroborated statement of a co-defendant is not at issue. Instead, what Pitts's habeas petition focuses on is whether such a statement could form the basis of probable cause for an arrest. Indeed, while under certain circumstances, a confession of an accomplice might not establish probable cause for an arrest under the "totality of the circumstances" test derived from Illinois v. Gates, 462 U.S. 213 (1983), there is no per se rule against using such uncorroborated confessions as the basis of probable cause in either federal court or in Alabama state court. See, e.g., Craig v. Singletary, 127 F.3d 1030, 1045 (11th Cir. 1997) (en banc); Acres v. State, 548 So. 2d 459 (Ala.Cr.App. 1987) (holding that the confession of an accomplice was "sufficiently reliable to furnish the officers with probable cause to arrest appellant").
Pitts cites Ala. Code § 12-21-220 (1975). This section deals with a defendant choosing to testify on his own behalf and how failing to do so shall not create any presumptions against said defendant. Pitts likely intended to cite Ala. Code § 12-21-222 (1975) which states that "[a] conviction of felony cannot be had on the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense."
In Pitts's objections, he also points to United States Supreme Court cases involving the fruit of the poisonous tree doctrine. See, e.g., Wong Sun v. United States, 371 U.S. 471, 487-488 (1963) (excluding evidence where such evidence was obtained by exploitation of an illegal or unlawful action); Brown v. Illinois, 422 U.S. 590 (1975) (holding that Miranda warnings cannot, by themselves, "attenuate the taint of an unconstitutional arrest"). While this doctrine might be applicable under certain circumstances, Pitts fails to demonstrate that there was an original unlawful action. Despite his best efforts, Pitts cannot point to a poisonous tree from which the fruit (his confession) flowed. Therefore, the fruit of the poisonous tree doctrine is inapplicable.
Pitts is incorrect in claiming that the confession of a co-defendant or accomplice cannot establish probable cause for an arrest, and, therefore, Pitts cannot succeed on a claim of ineffective assistance of appellate counsel. See Strickland v. Washington, 466 U.S. 668, 688 (1984) (holding that such a claim requires a showing that the appellate attorney's performance "fell below an objective standard of reasonableness"). Given that there is no merit to Pitts's claim that the denial of his motion to suppress was incorrectly decided and any appeal of this denial would have been frivolous, it follows that Pitts has not demonstrated that his attorney's performance fell below an objective standard of reasonableness. Because Pitts does not even meet this threshold standard, it is unnecessary to discuss whether Pitts was prejudiced by the performance of his appellate counsel.
Accordingly, it is hereby ORDERED as follows:
(1) The Objections to the Recommendation of the Magistrate Judge (Doc. # 27) are OVERRULED.
(2) The Recommendation of the Magistrate Judge (Doc. # 26) is ADOPTED.
(3) The Petition for Writ of Habeas Corpus (Doc. # 1) is DENIED.
CIVIL APPEALS JURISDICTION CHECKLIST
1. Appealable Orders : Appeals from final orders pursuant to 28 U.S.C. § 1291: 28 U.S.C. § 158Pitney Bowes, Inc. v. Mestre 701 F.2d 1 365 1 28 U.S.C. § 636 In cases involving multiple parties or multiple claims, 54Williams v. Bishop 732 F.2d 885 885-86 Budinich v. Becton Dickinson Co. 486 U.S. 196 201 108 S.Ct. 1717 1721-22 100 L.Ed.2d 178LaChance v. Duffy's Draft House, Inc. 146 F.3d 832 837 Appeals pursuant to 28 U.S.C. § 1292(a): Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: 28 U.S.C. § 1292 Appeals pursuant to judicially created exceptions to the finality rule: Cohen v. Beneficial Indus. Loan Corp. 337 U.S. 541 546 93 L.Ed. 1528Atlantic Fed. Sav. Loan Ass'n v. Blythe Eastman Paine Webber, Inc. 890 F.2d 371 376 Gillespie v. United States Steel Corp. 379 U.S. 148 157 85 S.Ct. 308 312 13 L.Ed.2d 199 2. Time for Filing Rinaldo v. Corbett 256 F.3d 1276 1278 4 Fed.R.App.P. 4(a)(1): 3 THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Fed.R.App.P. 4(a)(3): Fed.R.App.P. 4(a)(4): Fed.R.App.P. 4(a)(5) and 4(a)(6): Fed.R.App.P. 4(c): 28 U.S.C. § 1746 3. Format of the notice of appeal : See also 3pro se 4. Effect of a notice of appeal : 4 Courts of Appeals have jurisdiction conferred and strictly limited by statute: (a) Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under , generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." , , 368 (11th Ci r. 1 983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. (c). (b) a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. (b). , , (11th Cir. 1984). A judgment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. , , , , , (1988); , , (11th Cir. 1998). (c) Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and from "[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." Interlocutory appeals from orders denying temporary restraining orders are not permitted. (d) The certification specified in (b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable. (e) Limited exceptions are discussed in cases including, but not limited to: , , , 69S.Ct. 1221, 1225-26, (1949); , , (11th Cir. 1989); , , , , , (1964). : The timely filing of a notice of appeal is mandatory and jurisdictional. , , (11th Cir. 2001). In civil cases, Fed.R.App.P. (a) and (c) set the following time limits: (a) A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. Special filing provisions for inmates are discussed below. (b) "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later." (c) If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion. (d) Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension. (e) If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid. Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. Fed.R.App.P. (c). A notice of appeal must be signed by the appellant. A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. (a)(4).