Opinion
Civil Action 98-1256-RV-M
May 4, 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 Steve Dees and against Petitioner Tracy Lavell Hughes on all claims.
Petitioner was convicted of first degree assault in the Circuit Court of Mobile County on March 22, 1996 for which she received a sentence of twenty years in the state penitentiary. Hughes did not appeal the conviction or sentence (Doc. 4, p. 3; Doc. 11, p. 3) Petitioner filed a complaint with this Court on December 16, 1998, raising the following claims: (1) Her confession was coerced; (2) she did not enter into her plea agreement knowingly and voluntarily; (3) her trial attorneys rendered ineffective assistance of counsel; (4) the attorney representing her on the appeal of her Rule 32 petition rendered ineffective assistance; (5) she is actually innocent of the crime for which she was convicted; and (6) the sentence is unreasonably long (Docs. 1, 4)
Respondent claims that Petitioner has procedurally defaulted on three of the claims raised in this Court. It is noted that a United States Supreme Court decision, Harris v. Reed, 489 U.S. 255 (1989), 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). However, in Teague v. Lane, 489 U.S. 288 (1989), the U.S. Supreme Court stated that the rule of Harris is inapplicable where a habeas petitioner did not raise a particular claim in state courts so that they never had the opportunity to address the claim.
The evidence of record demonstrates the following. It is noted initially that Hughes did not appeal her conviction or sentence (Doc. 4, p. 3; Doc. 11, p. 3). Petitioner filed a State Rule 32 petition, raising the first, second, third, fifth, and sixth claims raised in this action (Doc. 11, Exhibit App. 21-30). Following an evidentiary hearing, the trial judge denied the petition, finding that the claims were procedurally defaulted as they could have been raised on direct appeal but were not ( id. at p. 33). Hughes appealed the decision, raising only the claim that she had been denied her right to appeal because of her attorney's failure to perfect an appeal (Doc. 11, Exhibit B). The Alabama Court of Criminal Appeals affirmed the lower court opinion, finding that Petitioner was procedurally defaulted from bringing that claim (Doc. 11, Exhibit C).
Petitioner failed to raise any of the claims raised in this petition in the appeal of the Rule 32 petition. Therefore, claims one, two, three, five, and six are all procedurally defaulted under Teague as Hughes did not give the Alabama Court of Criminal Appeals the opportunity to address those claims.
However, where the state courts have found claims of a petitioner to be procedurally defaulted and those courts have refused to address the merits of those claims, as is the case here, all chance of federal review is not 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).
In this action, Petitioner has demonstrated neither cause nor prejudice for failing to raise these five claims in a timely manner in the State courts. Hughes has argued, however, that she is actually innocent of the crime, a claim this Court understands to suggest that a fundamental miscarriage of justice would be visited upon her if the claims are not considered. Therefore, the Court will consider Petitioner' s innocence.
Hughes was convicted of first degree assault which is defined as follows:
(a) A person commits the crime of assault in the first degree if: (1) With intent to cause serious physical injury to another person, he causes serious physical injury to any person by means of a deadly weapon or a dangerous instrument; or (2) With intent to disfigure another person seriously and permanently, or to destroy, amputate or disable permanently a member or organ of his body, he causes such an injury to any person; or (3) Under circumstances manifesting extreme indifference to the value of human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes serious physical injury to any person; or (4) In the course of and in furtherance of the commission or attempted commission of arson in the first degree, burglary in the first or second degree, escape in the first degree, kidnapping in the first degree, rape in the first degree, robbery in any degree, sodomy in the first degree or any other felony clearly dangerous to human life, or of immediate flight therefrom, he causes a serious physical injury to another person; or (5) While driving under the influence of alcohol or a controlled substance or any combination thereof in violation of Section 32-5A-191 he causes serious bodily injury to the person of another with a motor vehicle.
Ala. Code § 13A-6-20 (1994).
In her complaint, Hughes sets out the facts of her case. In summary, those facts are as follows: On February 1, 1995, she was sitting on the front porch of a friend's house along with some others (Doc. 1, supplemental pages). A woman who lived in that neighborhood came by and she and Petitioner got into a verbal altercation. The other woman stated that she was not going to argue with Hughes and that she had something for her; the other woman left. Petitioner knew the other woman carried a gun, so she went and borrowed a gun and came back to the porch and waited for the other woman to return. When she did return, the two women began quarreling and Hughes pulled out the gun and shot it toward the ground. The bullet hit a six-year-old child in the side.
After reviewing the facts as Petitioner has presented them, the Court finds that she is not innocent of assault first degree. Though she may not have intended to hurt anybody (as required in subsection (a)(1)), it is without doubt that she, at least, engaged in reckless behavior which resulted in someone being hurt (as set out in subsection(a)(3)). Therefore, this Court finds that Hughes has not shown that a fundamental miscarriage of justice will be visited upon her if this Court does not consider these claims. Therefore, the Court considers the first, second, third, fifth, and sixth claims in this Court to be procedurally defaulted and the Court will not address their merit.
The only remaining claim is that the attorney representing Hughes on the appeal of her Rule 32 petition rendered ineffective assistance. 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). Therefore, there is no right to effective assistance of counsel on collateral review. Wainwright v. Torna, 455 U.S. 586, 587-88 (1982); Coleman v. Thompson, 501 U.S. 722, 752 (1991). This claim is of no merit.
Petitioner has raised six different claims in this action. Five of those claims are procedurally defaulted; the sixth has no merit. Therefore, it is recommended that the habeas petition be denied, that this action be dismissed, and that judgment be entered in favor of Respondent Steve Dees and against Petitioner Tracy Lavell Hughes on all claims.