Opinion
Civil Action No. 98-0539-CB-L
March 27, 2001
REPORT AND RECOMMENDATION
Vernon B. Jones, a state prisoner currently on supervised release, filed his complaint for habeas corpus relief pursuant to 28 U.S.C. § 2254 on May 26, 1998 (Doc. 1). The petitioner challenges his May 10, 1994, conviction in the Circuit Court of Mobile County for receiving stolen property in the second degree. Petitioner's original complaint was filed on an outdated form, and pursuant to the Court's order, petitioner filed an amended complaint on July 2, 1998. (Doc. 4.) After service of the amended complaint, the respondent filed an answer on July 27, 1998. (Doc. 9.) Thereafter, the case was transferred to the undersigned on January 5, 2000.
This action has been referred to the undersigned for entry of proposed findings of fact and a recommendation as to the appropriate disposition of the issues in the complaint; 28 U.S.C. § 636 (b)(1)(B); 28 U.S.C. foil. § 2254, Rule 8(b)(1). The undersigned finds that a hearing is not necessary. L.R. 72.1(c). After a complete review of this action, the undersigned determines that the petition should be denied.
FINDINGS OF FACT
1. The petitioner was convicted on May 10, 1994, of receiving stolen property in the second degree in the Circuit Court of Mobile County, Alabama. (CC-94-00 12.)
2. The petitioner was represented at trial by appointed counsel Arthur Clarke and on appeal by Dom Soto.
3. The petitioner was sentenced to 15 years, split with three years to serve in prison, consecutive to any other sentence petitioner was serving. Jones was also ordered to pay $992.38 in restitution, a $50 assessment for the Victim Compensation fund, and $650 in reimbursement for his trial counsel's services. (Tr. 107-08.)
4. Immediately after sentencing on May 12, 1994, the petitioner filed a pro se motion for new trial. (Tr. 108.) The motion was heard on June 17, 1994, and denied by the Circuit Court on that date. (Doc. 9, Exhibit A-1, at 5.)
5. On direct appeal to the Alabama Court of Criminal Appeals, the petitioner presented a single issue: whether defendant's pro se motion for new trial, which was filed at sentencing and which alleged ineffective assistance of trial counsel, should have been treated by the trial court as a Rule 32 petition. (Doc. 9, Exhibit B.)
6. The Alabama Court of Criminal appeals rejected the issue and affirmed petitioner's conviction in a memorandum opinion issued November 10, 1994. The opinion stated in relevant part,
As his sole issue, Jones's appellate counsel contends that the trial court should have treated Jones's pro se motion which is styled as a motion for new trial and was filed immediately after his sentencing on May 12, 1994, as a Rule 32 petition. In that motion, which was not sworn to or verified, Jones asserts that his trial counsel was ineffective. Immediately after filing this motion, Jones was appointed new counsel for his appeal. The state responds that this issue was not raised in the trial court. A review of the record shows that this is so. Moreover, [Alabama] Rule [of Criminal Procedure] 32.4 states: "A proceeding under this rule displaces all post-trial remedies except post-trial motions under Rule 24 [motion for new trial and motion in arrest of judgment] and appeal. Any other post-conviction petition seeking relief from a conviction or sentence shall be treated as a proceeding under this rule." (Emphasis added.) In addition, Rule 32.2(a)(1) clearly indicates that a post-trial motion filed within the time period for a Rule 24 motion is more appropriately treated as a motion for new trial rather than a Rule 32 petition. Rule 32.2(a)(1) states, "A petitioner will not be given relief under this rule based upon any ground . . . [w]hich may still be raised by post-trial motion under rule 24." In consideration of these rules and Jones's counsel's failure to alert the trial court of Jones's desire that the pro se motion be treated as a Rule 32 petition, we find that the trial court did not err in treating Jones's motion as a motion for new trial. Finally, Jones's new counsel appointed for the appeal could have followed the procedure set forth in Ex parte Jackson, 598 So.2d 895 (Ala. 1992), which provides for new counsel to file an "out-of-time" motion for a new trial after receiving a transcript of the trial proceedings. See also Gibson v. State, 628 So.2d 1043 (Ala.Cr.App. 1993) (where the court held that newly appointed appellate counsel has a right to file a motion for new trial even if the trial court has already denied a motion for new trial filed by trial counsel).
(Doc. 9, Exhibit D (emphasis in original).)
7. The Court of Criminal Appeals denied rehearing on January 13, 1995, and the Alabama Supreme Court denied the petition for certiorari on March 13, 1995. (Doc. 9, Exhibit E.)
The respondent has submitted what appears to be an Attorney General's office internal docket sheet, which indicates that certiorari was denied on March 3, 1995; the petitioner lists the date in his amended petition as March 13, 1995. (See Doc. 9, Exhibit B; Doc. 4, at 4.) However, the discrepancy has no bearing on the outcome of this case.
8. Petitioner filed a Rule 32 petition for post conviction relief with the Circuit Court of Mobile County on May 22, 1995. In his pro se petition, the petitioner raised the following grounds:
i. Ineffective assistance of trial counsel. Petitioner alleged that his counsel failed to call exculpatory witnesses, to investigate facts, and to object to hearsay testimony. Petitioner also alleged that his trial counsel "failed to investigate and subpoena an Alabama Power Company investigator, John Greaves, that was responsible for the
operation of a tape recorder that was used in petitioner's interview and that wa§ not subpoenaed to trial."
ii. Ineffective assistance of appellate counsel. Jones alleged that his appellate counsel failed to properly file a motion for new trial.
(Doc. 9, Exhibit F-1, at 24-31.)
9. The Court appointed Debbie McGowin to represent Jones on his Rule 32 petition. The Court held an evidentiary hearing on September 15, 1995. The petitioner, trial counsel Clarke, and appellate counsel Soto testified at the hearing. (Doc. 9 Exhibit F-1, transcript at 32.)
10. On September 29, 1995, the Circuit Court denied Jones's Rule 32 petition, with an entry on the docket sheet "Defendant's petition is denied." (Doc. 9, Exhibit F-1, at 8.)
11. Petitioner appealed the denial through his appointed counsel. On appeal, petitioner dropped the ineffective assistance of appellate counsel claim and raised only one issue: "whether failure of defense [trial] counsel to investigate and failure to put on witnesses resulted in ineffectiveness of counsel." (Doc. 9, Exhibit G, at 4.)
12. On appeal, the Alabama Court of Criminal Appeals remanded with the following statement:
On appeal, the appellant states a single claim: that his trial counsel was ineffective for failing to investigate the testimony of his brother Reginald Jones and James Jones and for failing to subpoena them to testify in his behalf at trial. However, this Court is unable to make a determination with regard to this claim because the order issued by the trial court did not set forth findings of fact or state the basis on which the appellant's petition was denied. Rule 32.9 (d) requires the trial court to make specific findings of fact relating to each material issue of fact present to the trial court. In addition, the basis of the trial court's ruling, whether procedural or on the merits, must be clear. Henderson v. State, 570 So.2d 879 (Ala.Cr.App. 1990). Therefore this cause is due to be remanded to the trial court for the entry of written findings of fact and for a specific statement as to the basis and reasons for the denial of the appellant's petition. Jones v. State, 709 So.2d 498, 499 (Ala.Cr.App. 1996).
13. On remand, the Circuit Court issued an order on August 23, 1996, articulating its reasons for denying Jones's Rule 32 petition. After recounting relevant dates in the case from arrest through the remand order, the Court stated,
The Court specifically sets out as the basis and reason for the denial of the Petitioner's Rule 32 petition that the issues raised by the Petitioner are precluded under 32.2(a)(5) of the Alabama Rules of Criminal Procedure, in that those issues could have been, but were not raised on appeal, and are not grounds for relief under Rule 32.1(b) of the Alabama Rules of Criminal Procedure, relating to the jurisdiction of the court.
(Doc. 9, Exhibit F-2 at 12.)
14. On November 1, 1996, on return to remand, the Court of Criminal Appeals affirmed the denial of Jones's Rule 32 petition, recounting the Circuit Court's order on remand, and concluding that the Circuit Court's "findings and reason are supported by the record on remand." Jones, 709 So.2d, at 499.
15. Petitioner filed an application for rehearing on November 14, 1996, which presented the original issue briefed on direct appeal (ineffective assistance of trial counsel) and a second issue: ineffective assistance of appellate counsel. (Doc. 10.)
16. The Court of Criminal Appeals denied rehearing on June 20, 1997, and the Alabama Supreme Court dismissed petitioner's petition for writ of certiorari on August 5, 1997, as untimely filed. ( Jones, 709 So.2d, at 499; Doc. 9, Exhibit K.)
17. Jones timely filed this federal habeas petition on May 26, 1998. He filed an amended complaint on July 2, 1998.
"For prisoners whose convictions became final prior to the effective date of the AEDPA, the one-year statute of limitations instituted by AEDPA began to run on its effective date, i.e., April 24, 1996." Guenther v. Holt, 173 F.3d 1328, 1211 n. 4 (11th Cir. 1999). Petitioner's conviction became final on the conclusion of his direct appeal on March 3, 1995. The petitioner filed a rule 32 petition on May 22, 1995. The statute of limitations period was tolled for the "time during which a properly filed application for State post-conviction or other collateral review . . . [was] pending." Id.. 28 U.S.C. § 2244 (d)(2). Petitioner's Rule 32 petition became final fourteen days after the application for rehearing was denied by the Alabama Court of Criminal Appeals, that is, July 3, 1997. ( See Ala.R.App.Pr. 39(b), providing for two weeks in which to file appeal of Court of Criminal Appeals' decision.) The one year statute of limitations therefore began to run on July 3, 1997, and this action was filed just under eleven months later.
18. The case was transferred to the undersigned on January 5, 2000.
19. On February 24, 2000, petitioner served notice on this Court that he has been released from prison, providing the Court with a "free world" address in Prichard, Alabama. (Doc. 16.) As a parolee, petitioner "remains in the legal custody of the warden of the prison from which he is paroled until the expiration of the maximum term specified in his sentence or until he is pardoned." ALA. CODE § 15-22-26. Jones's habeas petition is not moot, because there remains a "possibility for the imposition of collateral legal consequences on the basis of the challenged conviction." Minor v. Dugger, 864 F.2d 124, 125 (11th Cir. 1989). See Carafas v. LaValle, 391 U.S. 234 (1968).
20. Plaintiff's amended habeas petition presents the following three grounds:
The court notes that the petitioner raised additional grounds in his original habeas petition. (Doc. 1). However, the court ordered the petitioner to file an amended petition and specifically stated that the amended petition would supersede the prior filing. (Doc. 3). The amended petition was limited the three grounds discussed in this report.
i. Insufficient evidence. My conviction violates the Constitution by reason of the evidence adduced at trial were not substantiate a conviction of receiving property 2nd degree [sic]. Petitioner was hired by his brother [name omitted] to help unload some material on three occasions at A.S.M. Scrap Yard and was given $30.00 to do so. ii. Ineffective assistance of trial counsel. Had petitioner's trial counsel subpoenaed requested witnesses to trial, the outcome would have been different."
iii. Ineffective assistance of trial counsel. Trial counsel failure to investigate prosecution witnesses and seek Brady material. Trial counsel failed to subpoena John Greaves — an investigator for the Alabama Power Company who were responsible for the operation of a tape recorder.
(Doc. 4, at 7-8.)
CONCLUSIONS OF LAW
The court has reviewed petitioner's habeas claims. For the reasons stated more fully herein, the court recommends that petitioner's claim of insufficient evidence (ground one) is unexhausted and therefore procedurally defaulted because the issue has never been presented to the state supreme court on direct appeal or collateral attack. Moreover, petitioner has not established cause and prejudice for the procedural default. The court concludes that habeas grounds two and three, which both allege ineffective assistance of trial counsel, are also procedurally defaulted because they were not properly presented to the state court and were dismissed by the state court on procedural grounds. Petitioner has not established cause and prejudice to overcome the procedural default as to habeas grounds two and three.
A. Procedural Default Doctrine.
In Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), the Supreme Court stated that it would "not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Id.at 729, 111 S.Ct. at 2553-2554. This rule applies whether the state law ground is procedural or substantive. Id.. at 729, 111 S.Ct. at 2554. The doctrine applies to bar federal habeas review when a state court declines to address a petitione's federal claims because the petitioner fails to meet a state procedural requirement. Id.. at 729-730, 111 S.Ct. at 2554; see also Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (federal courts must honor legitimate state trial and appellate procedural rules when enforced by state courts and must decline to review on the merits claims that the state treats as barred absent a showing of cause for non-compliance with such rules and resulting prejudice); Alderman v. Zant, 22 F.3d 1541, 1549 (11th Cir. 1994) ("Pursuant to the doctrine of procedural default, a state prisoner seeking federal habeas corpus relief, who fails to raise his federal constitution[al] claim in state court, or who attempts 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 from the default."), cert. denied sub nom. Alderman v. Thomas, 513 U.S.1061, 115 S.Ct. 673, 130 L.Ed.2d 606 (1994). "In these cases, the state judgment rests on independent and adequate state procedural grounds." Coleman, 501 U.S. at 730, 111 S.Ct. at 2554 (citations omitted).
The application of the independent and adequate state ground doctrine in the habeas context is grounded in concerns of federalism and comity. Id.
Without the rule, a federal district court would be able to do in habeas what this Court could not do on direct review; habeas would offer state prisoners whose custody was supported by independent and adequate state grounds an end run around the limits of this Court's jurisdiction and a means to undermine the State's interest in enforcing its laws.Id.. at 730-731, 111 S.Ct.at 2554.
An additional consideration comes to the fore when the independent and adequate state ground supporting a petitioner's custody is a state procedural default. The Supreme Court has long held,
that a state prisoner's federal habeas petition should be dismissed if the prisoner has not exhausted available state remedies as to any of his federal claims. (citations omitted) This exhaustion requirement is also grounded in principles of comity; in a federal system, the States should have the opportunity to address and correct alleged violations of state prisoners' federal rights.
[A] habeas petitioner who has failed to meet the State's procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance.Id.. at 731, 111 S.Ct.at 2554.
In the habeas context, federal courts are to "presume that there is no independent and adequate state ground for a state court decision when the decision "fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion.'" Id.. at 735, 111 S.Ct. at 2557 (quoting Michigan v. Long, 463 U.S. 1032, 1040-1041, 103 S.Ct. 3469, 3476-3477, 77 L.Ed.2d 1201 (1983)); see Harris v. Reed, 489 U.S. 255, 263, 109 S.Ct. 1038, 1043, 103 L.Bd.2d 308 (1989) ("[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.").
However, the presumption against a state procedural default is not always applicable. In Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), the Supreme Court held that the requirement that the state court expressly state that its judgment rest on a state procedural bar is inapplicable to a claim that is never presented to the state courts. Id.. at 299, 109 S.Ct. at 1069 ("The rule announced in Harris v. Reed assumes that a state court has had the opportunity to address a claim that is later raised in a federal habeas proceeding."). Also, the presumption against state procedural default may not be applied in cases in which the state court opinion did not, at a minimum, discuss the federal grounds at issue." Tower v. Phillips, 7 F.3d 206, 211 (11th Cir. 1993) (" Coleman and Ylst lead us to conclude that we may not assume that had the state court issued an opinion, it would have ignored its own procedural rules and reached the merits of this case. In fact, the most reasonable assumption is that had the state court ruled, it would have enforced the procedural bar."). Finally, "where 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." Alderman v. Zant, supra, 22 F.3d at 1549.
Moreover, a court should look through unexplained orders to the last reasoned decision in order to determine on what grounds the state court's judgment rest. Ylst v. Nunnemaker, 501 U.S. 797, 804, 111 S.Ct. 2590, 2595, 115 L.Ed.2d 706 (1991).
Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground. If an earlier opinion "fairly appear[s] to rest primarily upon federal law, " Coleman, 501 U.S., at 740, we will presume that no procedural default has been invoked by a subsequent unexplained order that leaves the judgment or its consequences in place. Similarly where. the last reasoned opinion on the claim explicitly imposes a procedural default, we will presume that a later decision rejecting the claim did not silently disregard that bar and consider the merits.Ylst, 501 U.S. at 803, 111 S.Ct. at 2594.
When a petitioner has procedurally defaulted a claim, a federal court is barred from reaching the merits of that claim unless the petitioner "can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claim will result in a fundamental miscarriage of justice." man, supra U.S. at 750, 111 S.Ct. at 2565. The cause and prejudice standard applies "uniformly to all independent and adequate state procedural defaults." Id. 111 S.Ct. at 2565.
In procedural default cases, the cause standard requires the pitioner to show that "some objective factor external to the dense impeded counsel's efforts" to raise the claim in state court. (citation omitted). Objective factors that constitute cause include "interference by officials"' that makes compliance with the state's procedural rule impracticable, and "a showing that the factual or legal basis for a claim was not reasonably available to counsel." (citation omitted). In addition, constitutionally "[i]neffective assistance of counsel . . . is cause." (citation omitted). Attorney error short of ineffective assistance of counsel, however, does not constitute cause and will not excuse a procedural default. (citation omitted). Once the petitioner has established cause, he must show "`actual prejudice' resulting from the errors of which he complains." (citation omitted).
Federal courts retain the authority to issue the writ of habeas corpus in a further, narrow class of cases despite a petitioner's failure to show cause for a procedural default. These are extraordinary instances when a constitutional violation probably has caused the conviction of one innocent of the crime. We have described this class of cases as implicating a fundamental miscarriage of justice. (citation omitted).McCleskey v. Zant, 499 U.S. 467, 493-494, 111 S.Ct. 1454, 1470, 113 L.Ed.2d 517 (1991).
The court now turns to the issues raised in this habeas petition.
1. Sufficiency of the Evidence.
Petitioner alleges in habeas ground one that the evidence was insufficient to support his conviction for receiving stolen property in the second degree. In support, he alleges that "petitioner was hired by his brother to help unload some material on three occasion at A.S.M. scrap yard and was given $30.00 to do so." (Doc. 4, at 7.) A review of the record shows that petitioner's's sufficiency of the evidence claim has never been presented to a state appellate court for review and is therefore unexhausted.
This court cannot grant a writ of habeas corpus to petitioner "unless it appears that the [petitioner] has exhausted the remedies available in the courts of the State . . . ." 28 U.S.C. § 2254 (b)(1)(A) (1996). In O'Sullivan v. Boerckel, 526 U.S. 838 (1999), the Supreme Court held that in order to satisfy the exhaustion requirement, a state prisoner must present his claims to a state supreme court in a petition for discretionary review when that review is part of the state's ordinary appellate review procedure. Moreover, failure to present claims to the state supreme court in a timely manner results in a procedural default of the claims. Id.at 848. The Court further determined that the purpose of exhaustion would be defeated if the petitioner could obtain habeas review by "`letting the time run' so that state remedies were no longer available." Id; see also Edwards v. Carpenter, 529 U.S. 446, 450 (2000). Hence, a "state habeas corpus petitioner who fails to raise his federal claims properly in state court is procedurally barred from pursuing the same claim in federal court absent a showing of cause for and actual prejudice from the default" Bailey v. Nagle, 172 F.3d 1299, 1302 (11th Cir. 1999) (citing Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), or establishing a "fundamental miscarriage of justice," Schlup v. Delo, 513 U.S. 298, 324-27, 115 S.Ct. 851 (1995). "[I]f the petitioner simply never raised a claim in state court, and it is obvious that the unexhausted claim would now be procedurally barred due to a state-law procedural default, the federal court may foreclose the petitioner's filing in state court; the exhaustion requirement and procedural default principles combine to mandate dismissal." Bailey at 172 F.3d, at 1303 (citing Snowden v. Singletary, 135 F.3d 732, 737 (11th Cir.), cert. denied, 525 U.S. 963, 119 S.Ct. 405, 142 L.Ed.2d 329 (1998).
Petitioner has never presented the issue of sufficiency of the evidence to a state appellate court for review. Accordingly, habeas ground one is unexhausted and therefore procedurally defaulted. O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999). The burden is on the petitioner to establish cause and prejudice for the procedural default. Gordon v. Nagle, 2 F.3d 385, 387 n. 4 (11th Cir. 1993). citing Nichols v. Wainwright, 783 F.2d 1540, 1542 (11th Cir.), cert. denied, 479 U.S. 840, 107 S.Ct. 145, 93 L.Ed.2d 87 (1986).
To reiterate, petitioner's pro se motion for new trial alleged insufficiency of the evidence. (Doc. 9, Exhibit B., at 18.) However, petitioner's direct appeal presented only one issue, a procedural question: whether his motion for new trial should have been treated as a Rule 32 petition. (Doc. 9, Exhibit B, at 2.) Petitioner's pro se Rule 32 petition alleged ineffective assistance of trial and appellate counsel, and petitioner only appealed the issue of ineffective assistance of trial counsel to the Alabama Court of Criminal Appeals. (Doc. 9, Exhibit F-1, at 13-33; Exhibit G.)
In his answer to the respondent's argument that sufficiency of the evidence is unexhausted and procedurally defaulted, petitioner raises two arguments. First, petitioner states that "petitioner has raised these claims either in a motion for new trial or in a rule 32 petition." (Doc. 11 at 3.) The undersigned has reviewed the pro se motion for new trial. (Doc. 9, Exhibit A-1, at 17-19.) Ground seven of the motion states, "Evidence adduced at trial was insufficient to the states statute for conviction of 2nd RSP [receiving stolen property in the second degree] and all of the essential element was not established [sic]." Id., at 18. Plainly, the motion alleged insufficient evidence. However, the substance of petitioner's motion concerning sufficiency of the evidence was not presented in any appellate proceeding. Rather, the direct appeal focused on a procedural question: whether the motion for new trial should have been treated as a Rule 32 petition. (Doc. 9, Exhibit B.) Likewise, a review of petitioner's Rule 32 petition shows that he only alleged ineffective assistance of counsel. (Doc. 9, Exhibit F-1 at 17.)
Petitioner does make passing reference to insufficient evidence. However, the reference is not raised as a ground for postconviction relief. Rather, petitioner cites insufficient evidence in the context of ineffective assistance of trial counsel. See petitioner's Rule 32 petition, Doc. 9, Exhibit F-1, at 28. In order to be considered, the claim must have been "fairly presented" for adjudication by the state court. Cf Castille v. Peoples, 489 U.S. 346, 351 (1989) (discussing fair presentation of issues in the exhaustion context).
Petitioner argues in the alternative that "petitioner's counsel was responsible for the default, but petitioner cannot be required to bear the risk of attorney error that resulted in the procedural default because counsel was not acting as petitioner's agent with regard to the default." (Doc. 11, at 4.) In some circumstances, ineffective assistance of counsel may establish cause for a procedural default. As the Supreme Court has stated, "constitutionally "[i]neffective assistance of counsel . . . is cause." Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645 (1986). "Attorney error short of ineffective assistance of counsel, however, does not constitute cause and will not excuse a procedural default." McCleskey v. Zant, 499 U.S. 467, 494, 111 S.Ct. 1454, 1470, 113, L.Ed.2d 517 (1991).
Where the petitioner presents a procedurally defaulted ineffective assistance of counsel as an independent ground for habeas corpus relief, the petitioner must first establish cause and prejudice for the default of the ineffective assistance of counsel claim before ineffective assistance of counsel may be asserted as cause and prejudice for the procedural default of another claim. Edwards v. Carpenter, 529 U.S. 446, 454 (2000). Those circumstances are not present here, for the petitioner's amended habeas corpus petition does not present an issue of ineffective assistance of appellate counsel. See Doc. 4. The Court therefore examines petitioner's statement of cause and prejudice under a straightforward Murray analysis.
This Court is guided by the Supreme Court's discussion of ineffective assistance of counsel as cause for a procedural default in Murray v. Carrier:
So long as a defendant is represented by counsel whose performance is not constitutionally ineffective under the standard established in Strickland v. Washington, we discern no inequity in requiring him to bear the risk of attorney error that results in a procedural default. Instead, we think that the existence of cause for a procedural default must ordinarily turn on 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. Without attempting an exhaustive catalog of such objective impediments to compliance with a procedural rule, we note that a showing that the factual or legal basis for a claim was not reasonably available to counsel, or that "some interference by officials' made compliance impracticable, would constitute cause under this standard.Murray, 477 U.S. at 488. However, raising ineffective assistance of counsel as cause and prejudice for a procedurally defaulted habeas claim does not allow this Court to "end run" the state courts and adjudicate a claim of ineffective assistance of counsel which was not properly presented to the state courts:
The question whether there is cause for a procedural default does not pose any occasion for applying the exhaustion doctrine when the federal habeas court can adjudicate the question of cause — a question of federal law — without deciding an independent and unexhausted constitutional claim on the merits. But if a petitioner could raise his ineffective assistance claim for the first time on federal habeas in order to show cause for a procedural default, the federal habeas court would find itself in the anomalous position of adjudicating an unexhausted constitutional claim for which state court review might still be available. The principle of comity that underlies the exhaustion doctrine would be ill served by a rule that allowed a federal district court "to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation."Id.., at 489, quoting Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct 587, 590, 94 L.Ed. 761 (1950).
The Supreme Court's discussion in Murray describes similar circumstances which this habeas court confronts. In the present case, the petitioner's ineffective assistance of appellate counsel claim is unexhausted because it was never presented to the Alabama Court of Criminal Appeals or the Alabama Supreme Court following the circuit court's denial of the Rule 32 petition. (Doc. 9, Exhibit G; see also Jones v. State, 709 So.2d 498 (Ala.Cr.App. 1996).) This Court can addresses the ineffective assistance of appellate counsel, in analyzing whether cause exists to excuse procedural default on the insufficiency of the evidence claim, only if cause is established for the procedural default of the claim of ineffective assistance of appellate counsel.
The Court has reviewed petitioner's amended habeas petition as well as the entire record and finds that, other than petitioner's mere assertion that his Rule 32 appellate counsel was responsible for failing to raise ineffective assistance of appellate counsel on direct appeal, petitioner has offered no facts to prove cause and prejudice. Certainly petitioner has cited no evidence of external impediments, nor is there evidence showing that "the factual or legal basis for a claim was not reasonably available to counsel, or that "some interference by officials' made compliance impracticable." Murray, 477 U.S. at 488. In fact, the Rule 32 counsel raised ineffective assistance of appellate counsel initially, but dropped the claim after hearing the testimony of appellate counsel and receiving an adverse ruling on the issue from the trial court. The petitioner has failed in his burden to show cause for the procedural default of ineffective assistance of appellate counsel and consequently can not use ineffective assistance of appellate counsel as cause for his procedural default of the insufficiency of the evidence claim.
Even if the court were to ignore the fact that the petitioner has not shown cause for the procedural default of the ineffective assistance of appellate counsel claim, the petitioner has not shown cause for the procedural default of the insufficiency of the evidence claim. In order to establish cause petitioner must show that failure to raise the issue of sufficiency of the evidence amounted to "constitutionally ineffective" assistance of counsel as contemplated in Strickland v. Washington, 466 U.S. 668, 688, 694, 104, S.Ct. 2052, 80 L.Ed.2d 674 (1984). Stricklandv. Washington requires the petitioner to show (1) that his attorney's representation fell below "an objective standard of reasonableness", and (2) that a reasonable probability exists that but for counsel's unprofessional conduct, the result of the proceeding would have been different. Id.A review of the record establishes that petitioner's appellate counsel's representation did not fall below an objective standard of reasonableness. Mr. Soto, petitioner's appellate counsel, testified at the Rule 32 hearing that he considered raising an insufficiency of the evidence claim. However, Mr. Soto reviewed the file and considered the state's evidence that petitioner admitted knowing the copper wiring was stolen when he participated in selling it to a third party. Counsel therefore decided against raising an insufficiency claim. (Doc. 9, Exhibit F-1, T. 28-31; Exhibit A-1, (Tr. 76-78). The undersigned does not find this decision unreasonable. Accordingly, the petitioner has failed to establish cause and prejudice regarding his unexhausted claim of sufficiency of the evidence. Habeas ground one should therefore be DENIED as procedurally defaulted.
2. Ineffective Assistance of Trial Counsel
Petitioner alleges two instances of ineffective assistance of trial counsel in habeas grounds two and three. In ground one petitioner states that had trial counsel subpoenaed requested witnesses to trial, the outcome would have been different. In ground three petitioner specifically alleges that his counsel was ineffective because he failed to investigate prosecution witnesses, subpoena John Greaves, an investigator for the Alabama Power Company who was allegedly responsible for the operation of a tape recorder and seek Brady material. (Doc. 4, at 7-8.) Habeas grounds two and three are identical in substance to the first issue Jones raised in his Rule 32 petition. (See Doc. 9, Exhibit F-2, at 24-31.) However, this Court is barred from considering petitioner's claims, as the state's decision in the Rule 32 petition denying petitioner's claims rested on a state procedural bar. See supra, Harris v. Reed, 489 U.S. 255, 263 (1989). The Circuit Court clearly articulated the procedural bar in its opinion on remand:
See petitioner's Rule 32 petition, which alleged ineffective assistance of trial counsel. (Doc. 9, Exhibit F-1, at 17.) The memorandum in support of petitioner's Rule 32 petition states in part, "petitioner's attorney failed to investigate and subpoena an Alabama Power Company investigator, John Greaves, that was responsible for the operation of a tape recorder that was used in the petitioner's interview and that was not subpoenaed to trial." (Doc. 9, Exhibit F-1, at 24-25.)
The Court specifically sets out as the basis and reason for the denial of the Petitioner's Rule 32 petition that the issues raised by the Petitioner are precluded under 32.2(a)(5) of the Alabama Rules of Criminal Procedure, in that those issues could have been, but were not, raised on appeal and are not grounds for relief under Rule 32.1(b) of the Alabama Rules of Criminal Procedure, relating to the jurisdiction of the Court.
(Doc. 9, Exhibit F-2, at 12.)
In concluding that this Court is barred from considering the petitioner's claims the undersigned follows the Eleventh Circuit's guidelines pursuant to Harris.
Our analytic task first involves dividing the claims [petitioner] makes in this petition into two categories: (1) those that were actually presented to the Alabama courts, and (2) those that were not presented to the Alabama courts. As to the former, we ask whether the last state court rendering judgment clearly and expressly stated that its judgment rested on a procedural bar, i.e., an adequate and independent state ground. Harris v. Reed, 489 U.S. 255, 263, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). As to the latter, we ask whether any attempt [petitioner] now makes to exhaust his claims in the Alabama courts would be futile under Alabama procedural default doctrine. Snowden v. Singletary, 135 F.3d at 732, 737 (11th Cir. 1998)("Federal courts may apply state rules about procedural bars to conclude that further attempts at exhaustion would be futile.").Bailey v. Nagle, 172 F.3d 1299, 1303 (11th Cir. 1999). In this case, the undersigned looks through the Court of Criminal Appeals decision affirming the denial of the Rule 32 petition to the opinion of the Circuit Court, which found that petitioner's claims of ineffective assistance of counsel were "precluded under 32.2(a)(5) of the Alabama Rules of Criminal Procedure, in that those issues could have been, but were not raised on appeal, and are not grounds for relief under Rule 32.1 (b) of the Alabama Rules of Criminal Procedure, relating to the jurisdiction of the court." (Doc. 9, Exhibit F-2, at 12.)
Alabama Rule of Criminal Procedure 32.2(a)(5) states, "A petitioner will not be given relief under this rule based upon any ground which could have been but was not raised on appeal, unless the ground for relief arises under Rule 32.1(b)." Rule 32.1(b) states,
Subject to the limitations of Rule 32.2, any defendant who has been convicted of a criminal offense may institute a proceeding in the court of original conviction to secure appropriate relief on that ground that . . . (b) the court was without jurisdiction to render judgment or impose sentence.
ALA.R.CRIM.P. 32.1, 32.2 (West 1999). Rule 32.1(b) is inapplicable to petitioner's claims. The Circuit Court therefore determined that, because ineffective assistance of counsel was not raised on direct appeal, the matter was precluded from post-conviction relief under Rule 32.2(a)(5). The Alabama Court of Criminal Appeals affirmed. Jones v. State, 709 So.2d 498 (Ala.Crim.App. 1996). The Alabama Supreme Court subsequently dismissed petitioner's petition for writ of certiorari on August 5, 1997, as untimely filed. (Doc. 9, Exhibit K.)
The record clearly establishes that habeas grounds two and three are procedurally defaulted, therefore the petitioner's must show cause and prejudice to excuse the default, Gordon v. Nagle, 2 F.3d 385, 387 n. 4 (11th Cir. 1993) or establish that his conviction was a "fundamental miscarriage of justice," Schlup v. Delo, 513 U.S. 298, 324-27, 115 S.Ct. 851 (1995). As with habeas ground one, petitioner cites his counsel as cause for the procedural default:
Nevertheless were petitioner satisfied with appellate counsel's unmeritorious claim [the motion for new trial/Rule 32 petition issue presented on direct appeal] that forewent a meritorious claim [the question of failure to investigate and present witnesses found in habeas ground two and three] against the known wishes of petitioner. Appellate counsel's failure to perfect an appeal where the client indicated a desire to appeal amounted to ineffective assistance of counsel [sic]."
(Doc. 11, at 1-2.) As stated in analysis of petitioner's habeas ground one, this court addresses petitioner's claim of ineffective assistance of appellate counsel only to the extent that it is alleged as cause for the procedural default of the ineffective assistance of trial counsel claim.
Petitioner has offered no facts to support the conclusion that an external factor impeded his appellate counsel from raising an ineffective assistance of trial counsel claim. Moreover, petitioner's appellate counsel testified at the Rule 32 hearing that he reviewed the filed and considered an ineffective assistance of trial counsel claim but ultimately determined that trial counsel had done "a good job with what he had to work with". ( See Doc. 9, Exhibit F-2, hearing transcript 28-31.) Therefore, petitioner has not established that his appellate counsel was unaware of a factual basis for an ineffective assistance of trial counsel claim. Accordingly, under Murray v. Carrier, the only question remaining is whether appellate counsel's failure to present the issue of ineffective assistance of trial counsel on direct appeal amounted to "constitutionally ineffective assistance of counsel", whereas to establish cause for the default. Murray, 477 U.S., at 488.
It is petitioner's burden under Murray and Strickland to prove that his appellate counsel's decision not to raise ineffective assistance of trial counsel on direct appeal amounted to constitutionally ineffective assistance of counsel. Where appellate counsel is not constitutionally defective, the petitioner is required to "bear the risk of attorney error that results in a procedural default." Murray, 477 U.S., at 488. The only argument offered to show cause for the procedural default is petitioner's statement that his counsel should have raised ineffective assistance of trial counsel on direct appeal. As discussed in ground one, the petitioner has an additional burden to show cause for the procedural default of the ineffective assistance of appellate counsel claim before ineffective assistance of appellate counsel can be asserted as cause for the procedural default of the ineffective assistance of trial counsel claim. As discussed supra, Petitioner has failed to do this.
However, even if the court again ignores the petitioner's failure to establish cause for the procedural default of the ineffective assistance of appellate counsel, the petitioner has not shown cause for the procedural default of the ineffective assistance of trial counsel claim. The record shows that petitioner's appellate counsel reviewed petitioner's case and found no basis to argue ineffective assistance of trial counsel on direct appeal. ( See Doc. 9, Exhibit F-1, Rule 32 transcript at 30-31.) Petitioner must show that this decision was unreasonable. Strickland at 668. Furthermore, "given the strong presumption in favor of competence, the petitioner's burden of persuasion-though the presumption is not insurmountable-is a heavy one". Chandler v. US., 218 F.3d 1305, 1314 (11th Cir. 2000). The undersigned has reviewed the record as well as the testimony of trial counsel explaining his decision not to call witnesses, and concludes that appellate counsel's decision not to raise ineffective assistance of counsel was not unreasonable.
The petitioner was convicted of receiving stolen property. Specifically, the state produced evidence which confirmed that wire was stolen from Alabama Power and later sold to ASM recycling. The owner of ASM identified the petitioner as one of the three men who assisted in transporting and selling the wire to ASM. The petitioner was later interviewed by two Alabama Power investigators. One of the investigators testified at trial that the petitioner confessed to having known the wire was stolen when he sold it to ASM. The investigator stated that the confession was not taped. The state also produced evidence that the petitioner received a car for his participation and that the car was purchased with a the check received from ASM for the wire. (Doc. 9, Exhibit A).
The petitioner, through his counsel, disputed that he confessed or that he knew the wire to be stolen when he participated in the transportation and sale of the wire to ASM. The petitioner's counsel cross-examined the Alabama Power investigator, who denied that the confession was ever taped. Id..
Petitioner argues that his trial counsel was ineffective because he failed to subpoena witnesses in his defense. Although the petition is not specific on which witnesses the petitioner is referencing, other than Mr. Greaves, the court has determined from petitioner's testimony at his Rule 32 hearing in state court that the petitioner's complaint is that his trial counsel did not subpoena his two co-defendants in the case, James and Reginald Jones, and an investigator with Alabama Power, Mr. Greaves.
The petitioner alleges that his co-defendants would have exonerated him. However, when questioned about this at his Rule 32 hearing the petitioner said he never talked to James Jones about the case and that he only presumed Reginald Jones would give testimony in his favor. (Doc. 9, Exhibit F-1, p. 10). Petitioner's trial counsel testified at the Rule 32 hearing that he didn't call the co-defendants because he didn't think they would be helpful considering the state's evidence and the fact that they both were already convicted of the same offense and he was unsure they had prior offenses". (Doc. 9, Exhibit F-1. p. 24). "Counsel cannot be adjudged incompetent for performing in a particular way in a case, as long as the approach taken "might be considered sound trial strategy'." Chandler at 1314, citing Darden v. Wainwright, 477 U.S. 168, (1986). To decline to subpoena witnesses who would be subject to being impeached for previous offenses and discredited because of their own participation in the crime can not be said to be unsound trial strategy. Therefore, it was not unreasonable for appellate counsel to decide not to pursue ineffective assistance of trial counsel on this issue.
The petitioner also complains that Mr. Greaves should have been subpoenaed to support the petitioner's assertion at trial that he did not confess to the Alabama Power investigators as the State claimed. The petitioner also asserted as his Rule 32 hearing that Mr. Greaves tape recorded the statement. At the Rule 32 hearing there was no explanation given by trial counsel as to why he did not call Mr. Greaves. However, considering that the other Alabama Power investigator unequivocally testified that the petitioner did confess and that it was not taped, it was not unreasonable for the trial counsel to forego running the risk of confirming this with another witness. This court "[could] conceive of numerous reasonable strategic motives" for counsel's decision. See United States v. Fortson, 194 F.3d 730, 736 (6th Cir. 1999) (cited by Chandler v. US., 218 F.3d 1305, 1315 (11th Cir. 2000)). One such strategy may have been to leave a doubt in the jury's mind regarding whether the petitioner in fact confessed, by questioning why the state did not produce Mr. Greaves to confirm the confession. This court "must avoid second-guessing counsel's performance" at this point. Chandler at 1314. In any event, it was not unreasonable for appellate counsel to decide not to pursue this issue on appeal considering the heavy burden required of a defendant on appeal to prove ineffective assistance of trial counsel and the record before this court.
Because petitioner has failed to meet his burden to show that this decision was unreasonable, he has failed to establish cause for the procedural default of the ineffective assistance of trial counsel. Moreover, petitioner has not produced any evidence of actual innocence, much less "strong" evidence, which is required to establish a miscarriage of justice. See, Schlup v. Delo, 513 U.S. 298, 324-27, 115 S.Ct. 851 (1995). Accordingly, the undersigned recommends that habeas grounds two and three, alleging ineffective assistance of trial counsel, be DENIED.
CONCLUSION
Upon consideration of all matters presented, the undersigned recommends that the petition for writ of habeas corpus be DENIED.