Opinion
CIVIL ACTION 96-1202-RV-L
March 17, 2000.
REPORT AND RECOMMENDATION
Lorenza Lafitte, pro se, has petitioned this Court for federal habeas corpus relief pursuant to 28 U.S.C. § 2254 (Doc. 1). The petition has been referred to the undersigned Magistrate Judge for report and recommendation pursuant to 28 U.S.C. § 636 (b)(1)(B), Local Rule 72.2, and the standing order of general reference. Upon review of the record, it is recommended that the petition be denied.
The Magistrate Judge has carefully reviewed the record and finds that it contains sufficient facts upon which the issues presented may be properly resolved. Therefore, no evidentiary hearing is required to address the issues presented. Townsend v. Sain, 372 U.S. 293, 88 S.Ct. 745, 9 L.Ed.2d 770 (1963); Hance v. Zant, 696 F.2d 940 (11th Cir.), cert. denied, 463 U.S. 1210, 103 S.Ct. 3544, 77 L.Ed.2d 1393 (1983); 28 U.S.C. foll. § 2254, Rule 8a.
Procedural History
Petitioner was arrested on an indictment and charged with attempted murder. (Circuit Court of Mobile County, Alabama, Case Number 90-1844.) The case was set for trial on May 10, 1993. On motion of the State and with consent of the Defendant, the indictment was amended on that date to add a count for assault in the first degree. Also, the Defendant waived trial by jury, withdrew his plea of not guilty to attempted murder and pled guilty to first degree assault. The Court adjudged the Defendant guilty of first degree assault. The case was re-set to May 17, 1993 for sentencing and he was sentenced to twenty years in the penitentiary.
Petitioner did not appeal from the conviction and the sentencing. He filed a Rule 32 petition in the Circuit Court of Mobile County, Alabama on April 29, 1996 wherein he alleged that the trial court lacked jurisdiction to accept his guilty plea to assault in the first degree because the original indictment charging murder had been improperly amended to include an assault in the first degree without his consent. He also alleged ineffective assistance of counsel because his trial attorney failed to object to the amendment of the indictment without Petitioner's consent and that he failed to advise Petitioner of the minimum sentence with enhancement. He also alleged that his trial attorney failed to advise him of his right to withdraw or appeal his guilty plea.
The Circuit Court dismissed the Rule 32 petition as barred by the two year statute of limitations. The Petitioner appealed to the Alabama Court of Criminal Appeals. On September 27, 1996, the Court of Criminal Appeals issued a memorandum opinion affirming the denial of the Rule 32 petition. The Petitioner did not appeal to the Alabama Supreme Court.
The Petitioner filed this petition under 28 U.S.C. § 2254 on December 6, 1996 (Doc. 1). He alleges that the trial court lacked jurisdiction to adjudge or sentence him because the indictment was improperly amended without his consent to include a substantive change in the indictment. Moreover, Petitioner alleges that his trial counsel was ineffective because Counsel allegedly advised Petitioner that he would receive ten years if he plead guilty, but instead Petitioner was sentenced to twenty years.
Discussion
Petitioner alleges that his counsel was ineffective for failing to properly advise him of the sentence he may receive if he plead guilty. Petitioner states that counsel told him that he would receive a sentence of ten years in exchange for the plea, but the trial court sentenced him to twenty years (Doc. I, pages 4, 8). Respondent argues that Petitioner has procedurally defaulted on his claim of ineffective assistance of counsel because he did not file his claim within two years of conviction as required.
In Harris v. Reed, 489 U.S. 255 (1989), the Court 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).
In this case, the claim concerning ineffective assistance of counsel was not reviewed on the merits by the state court. Instead, the trial court denied the Petitioner's Rule 32 petition as untimely filed, clearly and expressly stating "Petition for relief from conviction of sentence — denied — petition time barred." (Doc. 8, Exhibit A, page 9) The Alabama Court of Criminal Appeals affirmed the opinion of the trial court in a memorandum opinion and held as follows:
The trial court correctly denied the appellant's petition for post-conviction relief filed pursuant to Rule 32, Ala. R. Crim. P. The appellant's contention that he did not consent to the amendment of the indictment is contradicted by the record. In addition, the appellant's issue regarding denial of effective assistance of counsel is time barred by the two-year statute of limitation in Rule 32.2(c), Ala. R. Crim. P. All the judges concur. (Emphasis added)
(Doc. 8, Exhibit D). The Petitioner did not appeal from the decision of the Alabama Court of Criminal Appeals.
There remains a question as to whether Petitioner exhausted his state court appeals. However, under 28 U.S.C. § 2254(b)(2), the Court may deny the habeas petition on the merits even if petitioner has failed to exhaust state remedies.
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 in the present case, 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).
Petitioner has demonstrated neither cause nor prejudice for failing to raise this claim in a timely manner in the State courts. Furthermore, Petitioner has not shown that this Court's failure to discuss the merits of this claim will result in a fundamental miscarriage of justice. Therefore, the Court considers the claim of ineffective assistance of counsel in this Court to be procedurally defaulted and the Court will not address the merits.
The record shows that the Petitioner signed a document that clearly disclosed that he faced a maximum sentence of twenty years. (Doc. 10, Exhibit E, pp. 19-21)
Petitioner also alleges that the indictment was improperly amended, thus depriving the court of jurisdiction to adjudge or sentence the Petitioner (Doc. 1, pages 4, 7). Specifically, Petitioner alleges that he did not consent to the amendment of the indictment by the court to charge first degree assault and that he did not understand that he had the right to insist on a grand jury. He further alleges that the amendment from attempted murder to assault in the first degree was a substantive change in the indictment which required a grand jury to amend. (Doc. 1, See also Doc. 8, Exhibit A, page 21, Petitioner's Statement of Facts and Law in Support of Petition).
The Circuit Court of Mobile County, Alabama did not address the merits of this allegation but rather held that the Rule 32 petition was time barred (Doc. 8, Exhibit A, page 9). However, as stated above, the Alabama Court of Criminal Appeals held as follows:
The trial court correctly denied the appellant's petition for post-conviction relief filed pursuant to Rule 32, Ala. R. Crim. P. The appellant's contention that he did not consent to the amendment of the indictment is contradicted by the record. In addition, the appellant's issue regarding denial of effective assistance of counsel is time barred by the two-year statute of limitation in Rule 32.2(c), Ala. R. Crim. P. All the judges concur. (Emphasis added)
(Doc. 8, Exhibit D). Since it is unclear whether the Court of Criminal Appeals concurred in the reason for the lower court's dismissal of this claim — that petition was time barred — this Court must address the merits of this claim. Harris, 489 U.S. 255.
To the extent that the Petitioner's claim is that the indictment should have been amended by a grand jury, it fails to state a constitutional claim cognizable under 28 U.S.C. § 2254. The Fifth Amendment's guarantee of indictment by grand jury has not been applied to the states through the Fourteenth Amendment and therefore the sufficiency of the indictment is primarily a matter of state law. See, Alexander v. Louisiana, 405 U.S. 625, 633(1972).
Even under state law the petitioner claim is without merit. Under Alabama law, an indictment may be amended by order of the court with the consent of the defendant in all cases, except to change the offense or to charge new offenses not contemplated by the original indictment. Ala. R. of Crim. Proc. 13.5(a). See, also, Hammond v. State, 665 So.2d 970, 974 (Ala.Crim.App. 1995) ( citing Ross v. State, 529 So.2d 1074 (Ala.Crim.App. 1988) (Jurisdiction not present if trial court accepted plea of guilty to an offense which was not encompassed by the charge in the indictment)). The case action summary indicates that the Petitioner consented to the amendment to the indictment to add a count charging "assault first" (Doc. 10, Exhibit E, page 5). Also, the Motion to Enter a Guilty Plea executed by the Petitioner and his attorney indicates that he knowingly and voluntarily consented to plead guilty to assault in the first degree (Doc. 10, Exhibit E, page 19-21). The Alabama Court of Criminal Appeals briefly addressed the merits of this issue and found that the Petitioner did consent.
The petitioner also complains that the amendment was a substantive change in his indictment. Under the Sixth Amendment the petitioner has a right to reasonable notice of the charge against him. In re Oliver, 333 U.S. 257(1948) (A person's right to reasonable notice of the charge against him is applied to the states through the Fourteenth Amendment.) However, an indictment of a greater offense is sufficient notice to the Defendant that he might be called to defend the lesser included charges. Fransaw v. Lynaugh, 810 F.2d 518, 529 (5th Cir. 1987). The question then becomes whether assault in the first degree is a lesser included offense of attempted murder.
Ala. Code § 13A-1-9(a)(1) provides that an offense is an included one if it is established by proof of the same or fewer than all the facts required to establish the commission of the offense charged. Under Alabama law a fact specific test has been applied when making a determination as to whether an offense is a lesser-included offense. Ex Parte Jordan, 486 So.2d 485, 488 (Ala. 198); Johnson v. State, 675 So.2d 85, 86-87 (Ala.Crim.App. 1995).
In this case, the Circuit Court records describe the following facts in regard to the offense to which the Petitioner entered his plea of guilty of assault in the first degree. The victim and another man were seated outside a neighborhood convenience store. The Petitioner entered the store and purchased cigarettes. He left the store, walked to the victim and shot him in the upper forehead. The other man hid beneath a car. No words were exchanged between the Petitioner and the victim. The Petitioner left the store on foot and was observed by a witness placing something inside an outdoor gas grill. A 38 caliber pistol was found in the grill. The victim was a distant cousin of the Petitioner but there was no history of ill will between them. No motive for the attack was established. (Doc. 10, Exhibit E, page 13-14).
The Petitioner has offered no facts to support his allegation that first degree assault could not be considered a lesser-included offense of attempted murder nor has he offered any rebuttal to the facts as presented by the Respondent upon which the amendment of the indictment was premised.
Under Alabama law, an assault in the first degree occurs when a person, with intent to cause serious physical injury to another person, does cause the serious physical injury by use of a deadly weapon or dangerous instrumentality. Ala. Code. § 13A-6-20(a)(1) Attempted murder occurs when, with intent to cause the death of another, a person does any overt act toward the commission of the murder. Ala. Code §§ 13A-4-2(a) and 13A-76-2(a)(1) In the present case, the facts underlying the offense to which the Petitioner plead guilty show that he intentionally shot the victim in the head with a gun and that the victim survived after extensive surgery. These same facts support a charge of assault in the first degree. Hence, under the facts of this case, assault in the first degree is a lesser-included offense of attempted murder. Therefore, the indictment for attempted murder was sufficient to give the Petitioner reasonable notice of the allegations against him and satisfy the Sixth Amendment.
Conclusion
The Petitioner has failed to meet his burden on habeas review of making a prima facie case that his detention is in violation of some federal right." Venson v. State of Georgia, 74 F.3d 1140, 1145-1146 (11th Cir. 1996) ( Citing Barefoot v. Estelle, 463 U.S. 880, 887, 103 S.Ct. 3383, 3392, 77 L.Ed.2d 1090 (1983)); ( See also Cherry v. Director, State Board of Corrections, 635 F.2d 414, 419 (5th Cir. 1981)). Therefore, based upon the foregoing, the undersigned Magistrate Judge finds that Petitioner's rights were not violated in this cause and that his petition for habeas corpus relief is due to be DENIED and it is so recommended. The attached sheet contains important information regarding objections to this Report and Recommendation.