Opinion
Civil Action 00-0304-AH-M.
October 30, 2000.
REPORT AND RECOMMENDATION
This is an action under 28 U.S.C. § 2254 by an Alabama inmate which was referred for report and recommendation pursuant to 28 U.S.C. § 636 (b)(1)(B), Local Rule 72.2(c)(4), and Rule 8 of the Rules Governing Section 2254 Cases. This action is now ready for consideration. The state record is adequate to determine Petitioner's claims; no federal evidentiary hearing is required. It is recommended that the habeas petition be denied, that this action be dismissed, and that judgment be entered in favor of Respondent Ralph Hooks and against Petitioner Melvin Allen, Sr. on all claims.
Petitioner was convicted of third degree robbery and attempted first degree theft in the Circuit Court of Mobile County on November 28, 1994 for which he received sentences of ninety-nine years and ten years, respectively, in the state penitentiary (Doc. 1). Appeal was made to the Court of Criminal Appeals of Alabama which affirmed the conviction and sentence by memorandum (Doc. 12, Exhibit D). Allen also petitioned for certiorari, but it was denied (Doc. 12, Exhibits G, H; see Doc. 12, p. 3). Allen filed a complaint with this Court on April 5, 2000, raising the following claims: (1) The jury venire panel was unconstitutionally empaneled in that they did not represent a fair cross section of the community; (2) the jury was unconstitutionally selected under Batson; (3) he was denied the effective assistance of trial counsel; and (4) he was denied the effective assistance of appellate counsel (Doc. 1).
Batson v. Kentucky, 476 U.S. 79 (1986), overruled in part, Powers v. Ohio, 499 U.S. 400 (1991).
Respondent claims that Petitioner has procedurally defaulted on each of the claims raised in this Court. A United States Supreme Court decision, Harris v. Reed, 489 U.S. 255 (1989), has discussed procedural default and stated that "a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case `clearly and expressly' states that its judgment rests on a state procedural bar." Harris, 489 U.S. at 263, citing Caldwell v. Mississippi, 472 U.S. 320, 327 (1985), quoting Michigan v. Long, 463 U.S. 1032, 1041 (1983).
The evidence of record demonstrates that Petitioner's first claim, that the jury venire panel was unconstitutionally empaneled in that they did not represent a fair cross section of the community, was found to be procedurally defaulted by the Alabama Court of Criminal Appeals on the direct appeal of his conviction (Doc. 12, Exhibit D). This claim is procedurally defaulted under Harris.
Petitioner's second claim, that the jury was unconstitutionally selected under Batson, was raised on the direct appeal of his conviction and then again in the brief supporting his petition for certiorari but was not raised specifically as an issue in the petition itself (Doc. 12, Exhibits D, G). Because this claim was not properly listed as an issue in the petition for certiorari, it was not properly raised before the Alabama Supreme Court. Ex parte Franklin, 502 So.2d 828 n. 1 (Ala. 1987). Because Allen did not seek review of this claim in the state's highest court in a proper, timely manner, it is procedurally defaulted under O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) ("[W]e conclude that state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process").
Petitioner raised both of his ineffective assistance of counsel claims in his Rule 32 petition and in the appeal (Doc. 12, Exhibits I, J). However, Allen did not petition for certiorari following the Alabama Court of Criminal Appeals' denial of his appeal (see Doc. 12, p. 6). Therefore, his third and fourth claims are procedurally defaulted under O'Sullivan.
Respondent's assertion is true: all four claims raised in this habeas petition are procedurally defaulted. However, before proceeding further, the Court notes that Allen has challenged the use of O'Sullivan, arguing that it is a new rule of law which should not be applied retroactively (Doc. 17). Petitioner specifically points to Smith v. White, 719 F.2d 390 (11th Cir. 1983), a case in which the Eleventh Circuit Court of Appeals held that a federal habeas petitioner did not have to seek certiorari in the Alabama Supreme Court to exhaust his state remedies for purposes of seeking relief in federal court.
The Court has reread O'Sullivan, however, and finds language which indicates that its decision is not a new rule of law. Specifically, the opinion states that "[t]he exhaustion doctrine, first announced in Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed.2d 868 (1886), is now codified at 28 U.S.C. § 2254 (b)(1) (1994 ed., Supp. III)." O'Sullivan, 526 U.S. at 842. The Court finds that O'Sullivan is not a new rule of law, so there is no need to enter into a discussion of its retroactivity. Allen's four claims are procedurally defaulted.
Where the state courts have found claims of a petitioner to be procedurally defaulted and those courts have refused to address the merit of those claims, federal review is not necessarily precluded. The Eleventh Circuit Court of Appeals, in addressing the review of these claims, has stated the following:
Under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) and its progeny, noncompliance with a state procedural rule generally precludes federal habeas corpus review of all claims as to which noncompliance with the procedural rule is an adequate ground under state law to deny review. If a petitioner can demonstrate both cause for his noncompliance and actual prejudice resulting therefrom, however, a federal court can review his claims.Booker v. Wainwright, 764 F.2d 1371, 1376 (11th Cir.) (citations omitted), cert. denied, 474 U.S. 975 (1985). A claimant can also avoid the procedural default bar if it can be shown that a failure to consider the claims will result in a fundamental miscarriage of justice. Engle v. Isaac, 456 U.S. 107, 135 (1982); see also Murray v. Carrier, 477 U.S. 478, 496 (1986).
Allen has generally asserted that the reason for his default was that he had ineffective assistance of counsel (Doc. 17). The Court has reviewed the first two claims and finds that Petitioner has not shown that he was actually prejudiced. With regard to Petitioner's third and fourth claims, the Court notes that there is no constitutional right to counsel on collateral review of a conviction, Pennsylvania v. Finley, 481 U.S. 551, 555 (1987), 50 there is no right to effective assistance of counsel on collateral review, Wainwright v. Torna, 455 U.S. 586, 587-88 (1982), and such ineffective assistance does not excuse procedural default. Toles v. Jones, 888 F.2d 95, 99-100 (11th Cir. 1989), cert. denied, 506 U.S. 834 (1992); Coleman v. Thompson, 501 U.S. 722, 752 (1991).
In this action, Petitioner has failed to demonstrate that he has been actually prejudiced in failing to raise these four claims in a timely manner in the State courts. Furthermore, Allen has not shown that this Court's failure to discuss the merit of these four claims will result in a fundamental miscarriage of justice being visited upon him. Therefore, the Court considers all four claims in this Court to be procedurally defaulted.
Petitioner has raised four claims in this action. All are procedurally defaulted. Therefore, it is recommended that this petition be denied, that this action be dismissed, and that judgment be entered in favor of Respondent Ralph Hooks and against Petitioner Melvin Allen, Sr. on all claims.