Opinion
Civil Action 98-0148-AH-L
January 10, 2001
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. 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 James Deloach and against Petitioner Willie B. Major on all claims.
FINDINGS OF FACT
1. On November 4, 1994, Petitioner entered a guilty plea to burglary in the third degree, a Class C felony. The Honorable Chris Galanos adjudged him guilty and imposed a sentence of life in prison to run consecutive to the sentence he was currently serving, i.e. a thirty year sentence for five prior felony convictions. Petitioner filed a pro se motion to vacate his guilty plea on November 21, 1994, and new counsel was appointed to represent him at the hearing. Also, petitioner's trial counsel filed a motion to reconsider sentence on December 13, 1994. The motion to vacate and motion to reconsider were heard on December 21, 1994, and both were denied by the trial judge. Petitioner did not appeal his conviction. Therefore, his conviction became final December 26, 1994, at the expiration of the forty-two day period for appeal. Ala. R. App. P.4(b) (Doc. 10, Exhibit A)
"Appeals in Criminal Cases. (1) Circuit Court. In a criminal case a notice of appeal by the defendant shall be filed with the clerk of the trial court within 42 days (6 weeks) after pronouncement of the sentence, provided that the notice of appeal may be oral, as provided in Rule 3(a)(2)." Ala. R. App. P. 4(b).
2. Petitioner filed a pro se petition for relief from conviction or sentence pursuant to Ala. R. Crim. P. Rule 32 on December 15, 1995, and counsel was appointed. The petition alleged: (1) ineffective assistance of counsel for failing to appeal his sentence, (2) ineffective assistance of counsel at the sentencing because counsel failed to object to the imposition of the habitual offender act without reasonable notice, and (3) ineffective assistance of trial counsel because the indictment was unlawfully amended. After recusal by the trial judge, the hearing was conducted May 9, 1996, by the Honorable Douglas Johnston. The Rule 32 petition was denied at the hearing. (Doc. 10, Exhibit A, Page 4 and Doc. 20, attachment (c)). The written order was signed on May 29, 1996. (Doc. 20, attachment (d)). Therefore, the judgment denying the Rule 32 petition became final on July 10, 1996, forty-two days after entry of the May 29, 1996 order denying his petition. Ala. R. App. P. 4(b). Petitioner did not appeal the denial.
3. Petitioner filed a petition for writ of habeas corpus in the Circuit Court of Mobile County, Alabama on July 3, 1996. The petition attacked his 1994 conviction and sentence for burglary, alleging that the trial judge should have recused himself. The State filed a motion to dismiss on October 17, 1996. On October 18, 1996, the trial court dismissed the petition for habeas corpus on the grounds that the petitioner was currently serving a thirty-year sentence from five convictions in 1981 and therefore was not currently serving the consecutive 1994 sentence he was attacking in the state habeas petition. Petitioner filed a notice of appeal on October 31, 1996. (Doc. 10, Exhibit A). However, his appeal was dismissed on February 13, 1997 for failure to prosecute. (Doc. 10, Exhibit B).
4. On February 13, 1998, petitioner filed this federal habeas corpus petition, pursuant to 28 U.S.C. § 2254, alleging four grounds for his claim that he is being held unlawfully. Specifically, the petitioner claims the following four instances of ineffective assistance of counsel:
(A) Failure of counsel to object to sentencing by the Honorable Chris Galanos, who petitioner avers was bias;
(B) Failure of counsel to object to an improper amendment of the indictment;
(C) Failure of counsel to object to the failure of the State to give reasonable notice that they would be proceeding under the Habitual Felony Offender Act, § 13A-5-9 of the Code of Alabama 1975 (as amended);
(D) Failure of counsel to argue the grounds petitioner wanted argued at the hearing on his post-sentencing motions and failure of counsel to appeal the denial of his post-sentencing motions. (Doc. 1).5. Respondent answers that petitioner's claims have not been exhausted and are procedurally defaulted. Respondent also alleges that the petition for writ of habeas corpus is barred from consideration by the one-year period of limitation of 28 U.S.C. § 2244(d)(1).
Andrew Jones was appointed to represent the petitioner at his guilty plea and sentencing. Petitioner was appointed new counsel, Deborah McGowan, to represent him at the hearing on his motion to vacate the guilty plea and reconsider sentencing. Petitioner claims that both were ineffective.
DISCUSSION
A. Statute of Limitations
Petitioner's conviction was final before April 24, 1996, the effective date of AEDPA. The Eleventh Circuit has found that in this circumstance the one year limitation period starts on the statute's effective date, rather than on the date the conviction became final as indicated in 28 U.S.C. § 2244(d)(1)(A). "For prisoners whose convictions became final prior to the effective date of the AEDPA, the one-year statute of limitations instituted by the AEDPA began to run on its effective date, i.e., April 24, 1996." Guenther v. Holt, 173 F.3d 1328, 1331 (11th Cir. 1999); see also Wilcox v. Florida Dep't of Corrections, 158 F.3d 1209, 1211 n. 4 (11th Cir. 1998) (citing Goodman v United States, 151 F.3d 1335, 1337 (11th Cir. 1998). Therefore, Petitioner had until April 24, 1997 to file his federal habeas corpus petition. However, the limitation period was tolled for the "time during which a properly filed application for State post-conviction or other collateral review . . . [was] pending." Id § 2244(d)(2). The Rule 32 petition was filed on December 15, 1995 and the judgment denying the petition became final on July 10, 1996, thus, tolling the one year limitation period until July 10, 1997. Petitioner then filed a state habeas corpus petition on July 3, 1996. The judgment dismissing this petition became final on February 13, 1997, when the appeal of the denial was dismissed for failure to prosecute. (Doc. 10, Exhibit B). His state habeas corpus petition was pending at the time the judgment denying his Rule 32 petition became final. If the state habeas corpus petition was properly filed, his one year limitation period was tolled until February 13, 1998; thus his federal habeas corpus petition would not be barred by the statute of limitations.
Respondent argues that the state habeas corpus petition was not "properly filed" and thus, did not toll the one year limitation period. Respondent cites Weekley v. Moore, 204 F.3d 1083 (11th Cir. 2000), wherein the Eleventh Circuit held that state court motions for post-conviction relief, which were dismissed as successive petitions, were not properly filed and would not toll the statute of limitations under AEDPA. Id. at 1086. Respondent argues that the claim underlying Petitioner's state habeas corpus petition was not proper for state habeas corpus review and that, if the petition had been considered as a Rule 32 petition, it would have been successive and untimely. Therefore, the state habeas corpus petition was not properly filed (Doc. 10).
The record indicates that Petitioner's state habeas corpus petition was not dismissed as a successive petition under Rule 32, but rather presumably was dismissed because the Petitioner was not currently serving the sentence for which he sought habeas relief (Doc. 10, Exhibit A, page 26). While the respondent may be correct in its assertion that the petition could have been dismissed as successive, the Mobile Circuit Court did not choose to dismiss on this ground. More importantly, due to the Supreme Court recently vacating the opinion in Weekley, it is not clear that a successive petition is an "improperly filed petition" for purposes of determining whether the statute of limitations has expired. Accordingly, the undersigned must determine whether the state court's basis of dismissal equates the petition to an improperly filed petition.
In a briefly worded motion, the state noted to the Court that the petitioner had previously filed a Rule 32 which had been denied. However, the Court's dismissal appears to be only on the basis that the petitioner was not in custody for the sentence that he was attacking.
The respondent has cited no authority that would allow this Court to make the initial determination that the petition was successive and therefore barred by state law.
On January 8, 2001, the Supreme Court vacated the decision in Weekley, and remanded the case to the Eleventh Circuit for further consideration in light of Artuz v. Bennett. Weekley v. Moore, U.S. , 2001 WL 12405 (January 8, 2001).
In Artuz v Bennett, 531 U.S. ___, 121 S.Ct. 361 (2000), which was decided after the Eleventh Circuit's opinion in Weekley, the Supreme Court defined a "properly filed" application as follows:
An application is "filed," as that term is commonly understood, when it is delivered to, and accepted by, the appropriate court officer for placement into the official record. See, e.g., United States v. Lombardo, 241 U.S. 73, 76, 36 S.Ct. 508, 60 L.Ed. 897 (1916) ("A paper is filed when it is delivered to the proper official and by him received and filed"); Black's Law Dictionary 642 (7th ed. 1999) (defining "file" as "[t]o deliver a legal document to the court clerk or record custodian for placement into the official record"). And an application is "properly filed" when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee. See, e.g., Habteselassie v. Novak, 209 F.3d 1208, 1210-1211 (10th Cir. 2000); 199 F.3d, at 121 (case below); Villegas v. Johnson, 184 F.3d 467, 469-470 (5th Cir. 1999); Lovasz v. Vaughn, 134 F.3d 146, 148 (3rd Cir. 1998). In some jurisdictions the filing requirements also include, for example, preconditions imposed on particular abusive filers, cf. Martin v. District of Columbia Court of Appeals, 506 U.S. 1, 113 S.Ct. 397, 121 L.Ed.2d 305 (1992) (per curiam), or on all filers generally, cf. 28 U.S.C. § 2253(c) (1994 ed., Supp. IV) (conditioning the taking of an appeal on the issuance of a "certificate of appeal ability"). But in common usage, the question whether an application has been "properly filed" is quite separate from the question whether the claims contained in the application are meritorious and free of procedural bar. Id. at 363-364.
The Court is unable to determine definitely from the Mobile Circuit Court's order why and by what authority the habeas petition was dismissed. Apparently the Circuit Court determined that it lacked jurisdiction to entertain the petition since the petitioner was not currently serving the sentence which he was challenging. However, as discussed in detail infra, under Alabama law the petition should have been treated as a Rule 32. See Ala. R. Crim. P. 32.4. Rule 32 provides for postconviction relief without any requirement that the petitioner be in custody for the conviction he is attacking. Therefore, since the dismissal of the petition on the stated grounds appears to be erroneous, this Court has no basis to determine whether the petition was "improperly filed" for purposes of the statute of limitations and will therefore assume that it was proper. This conclusion is mandated by the Supreme Court's broad construction in Artuz of what constitutes a "properly filed" petition. Id.
Respondent also argues in the supplemental answer, that the state habeas corpus petition was not properly filed because it was filed in the wrong county (Doc. 18). However, under Alabama law it would appear that the petition was filed in the correct county but labeled improperly. Specifically, "a petition for a writ of habeas corpus contesting the validity of a conviction should [be] treated as a petition for post-conviction relief." Hiett v. State, 642 So.2d 492, 493 (Ala.Crim.App. 1993). "Moreover, Ala.R.Crim.P. 32.4 provides "[a]ny . . . post-conviction petition seeking relief from a conviction or sentence shall be treated as a proceeding under [Rule 32]. `Rule 32 did not abolish the substantive right to post-conviction review under the statutory remedy of habeas corpus. It merely changed the procedure for seeking habeas corpus relief in most situations'." Hiett, 642 So.2d at 493 (quoting Drayton v. State, 600 So.2d 1088, 1089 (Ala.Crim.App. 1992)), overruled in part by Ex parte Maddox, 662 So.2d 915 (Ala. 1995). Therefore, since the petitioner is challenging his conviction, his petition for habeas corpus should have been treated as a Rule 32 under Alabama law. If the petitioner had filed in Barbour County, as the respondent suggests, under Rule 32.5 the petition would have been transferred to Mobile County. See also Cayson v. State, 2000 WL 1207375, 1 (Ala.Crim.App. 2000). Respondent's argument that the petition was improperly filed because it was filed in the wrong county is without merit.
At the time of filing his state habeas corpus petition, Petitioner was incarcerated in Easterling Correctional Facility in Barbour County, Alabama; however, he filed his state habeas corpus petition in Mobile County, Alabama, the County in which he was sentenced (Doc. 10, Exhibit A). § 15-21-6(b) of the Code of Alabama (1975) states that "[w]hen the person is confined in the penitentiary or under a sentence, judgment or order of the supreme court or the circuit court, other than an indictment for felony, the petition must be addressed to the nearest circuit court judge."
Alabama Rule of Criminal Procedure 32.5 provides; "Petitions filed under this rule shall be filed in and decided by the court in which the petitioner was convicted. If a petition is filed in another court, it shall be transferred to the court where the conviction occurred."
Accordingly, the Court will finds that the July 3, 1993, petition was properly filed and therefore tolled the statute of limitations until February 13, 1998, which makes his federal habeas corpus petition timely filed.
B. Exhaustion and Procedural Default
Respondent next asserts that petitioner's claims were not exhausted in state court and are therefore procedurally defaulted. 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 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, and failure to present claims to the state supreme court in a timely manner results in a procedural default of the claims. 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. at 848; see also Edwards v. Carpenter, 529 U.S. 446, 450 (2000). "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, 1302-1303 (11th Cir. 1998) (citing Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). "[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 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)); see also Footman v Singletary, 978 F.2d 1207, 1211 (11th Cir. 1992) ("Thus we agree with the district court's statement of the law that a habeas petitioner may not present instances of ineffective assistance of counsel in his federal petition that the state court has not evaluated previously.").
The petitioner did not file a direct appeal of his conviction and sentence, although such an appeal is part of Alabama's ordinary appellate review procedure. See Ala. R. App. P. 4(b). Neither did the petitioner appeal the denial and dismissal of his post-conviction petitions for relief. Under Alabama law any attempt which petitioner may now make to exhaust his claims would be futile. All relevant time periods for appeal or for a petition under Rule 32 have passed. See, Ala. R. App. P.4(b) and Ala. R. Crim. P. 32.2(c); see also Snowden, 135 F.3d at 737 (Even without a state court determination that petitioner's claims are procedurally defaulted "[f]ederal courts may apply state rules about procedural bars to conclude that further attempts at exhaustion would be futile."). Hence, any claim that Petitioner makes before this Court has not been exhausted and is procedurally defaulted.
However, Petitioner could still overcome the procedural default if he established cause for the default and actual prejudice resulting therefrom. The Eleventh Circuit Court of Appeals, in addressing review of procedurally defaulted 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, 1378-79 (11th Cir. 1985) (citations omitted), cert. denied, 474 U.S. 975 (1985). Further, the Supreme Court held in Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546 (1991) that:
"[i]n all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner 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."Id. at 750, 111 S.Ct. at 2565; see also Engle v. Isaac, 456 U.S. 107, 135, 102 S.Ct. 1558, 1575-76 (1982) (If a fundamental miscarriage of justice would occur upon failure to consider a petitioner's claims, the federal habeas court could review his claims); see also Murray v. Carrier, 477 U.S. 478, 488, 106 S. Ct 2639, 2640 (1986).
Petitioner's argument for cause of the default is implicit in his petition. In his federal habeas corpus petition, Petitioner claims, among other things, that trial counsel was ineffective because she failed to appeal from the conviction and sentence. In some circumstances, cause can be established by showing counsel's ineffectiveness in failing to properly preserve the claim for review. Carrier, 477 U.S. at 488-489, 106 S.Ct. at 2639. However, "[n]ot just any deficiency in counsel's performance will do, . . . the assistance must have been so ineffective as to violate the Federal Constitution. . . . In other words, ineffective assistance adequate to establish cause for the procedural default of some other constitutional claim is itself an independent constitutional claim. The principles of comity and federalism that underlie our longstanding exhaustion doctrine . . . require that constitutional claim, like others, to be first raised in state court." Edwards v. Carpenter, 120 S.Ct. 1587, 1591 (2000). The petitioner has procedurally defaulted his claim of ineffective assistance of counsel and has failed to show cause for doing so. The only explanation offered by the petitioner is that he told his attorney to appeal and she didn't. However, the petitioner, in his Rule 32 petition, submitted letters from the attorney that clearly show that the attorney was willing to file an appeal once satisfactory financial arrangements were made. (Doc. 20, attachment(a)). Petitioner has not averred any reason why he did not pursue his appeal, nor has he established cause for his failure to exhaust his ineffective assistance of counsel claim in state court.
However, even if the Court assumed there was cause for the default, the petitioner must still establish actual prejudice which infected his conviction with errors of constitutional dimensions. To establish prejudice, a petitioner must show "not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 1596 (1982). A review of the petitioner's claims show that he has failed to establish prejudice of a constitutional dimension from any of the alleged errors.
First, petitioner asserts that his counsel was ineffective in failing to object to the trial judge. The petitioner argues that the trial judge was the county district attorney at the time his case was indicted and as such was biased and lacked impartiality. Petitioner further alleges that this bias resulted in prejudice to him in the sentence that he received. Specifically, he summarily states that if he had been sentenced by an impartial judge, he would not have received a sentence of life in prison on a Class C felony conviction for burglary in the third degree (Doc. 1).
Circuit Judge Chris M. Galanos took the bench on September 1, 1994. Prior to that time he served as District Attorney for the Thirteenth Judicial Circuit Mobile County, Alabama. See Ex parte Sanders, 659 So.2d 1036, 1037 (Ala.Crim.App. 1995). Petitioner was indicted on September 23, 1994. (Doc. 10, Exhibit A, p. 1 and 19) Petitioner pled and was sentenced on November 14, 1994. Therefore, the evidence of record does not support the petitioner's contention that Judge Galanos was the district attorney when the case was presented for indictment. Moreover, even if he was the district attorney while the case was investigated (which there is no evidence in the record to support), the petitioner has failed to allege a constitutional violation which can be addressed in a writ of habeas corpus.
The U.S. Supreme Court has addressed judicial bias as follows:
[M]ost questions concerning a judge's qualifications to hear a case are not constitutional ones, because the Due Process Clause of the Fourteenth Amendment establishes a constitutional floor, not a uniform standard. Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 828, 106 S.Ct. 1580, 1588-1589, 89 L.Ed.2d 823 (1986). Instead, these questions are, in most cases, answered by common law, statute, or the professional standards of the bench and bar. See, e.g., Aetna, id., at 820-821, 106 S.Ct., at 1584-1585; Tumey v. Ohio, 273 U.S. 510, 523, 47 S.Ct. 437, 441, 71 L.Ed. 749 (1927); 28 U.S.C. § 144, 455; ABA Code of Judicial Conduct, Canon 3C(1)(a) (1980). But the floor established by the Due Process Clause clearly requires a "fair trial in a fair tribunal," Withrow v. Larkin, 421 U.S. 35, 46, 95 S.Ct. 1456, 1464, 43 L.Ed.2d 712 (1975), before a judge with no actual bias against the defendant or interest in the outcome of his particular case. See, e.g., Aetna, supra, at 821-822, 106 S.Ct., at 1585-1586; Tumey, supra, at 523, 47 S.Ct., at 441.Bracy v. Gramley, 520 U.S. 899, 904-905, 117 S.Ct. 1793, 1797 (1997). The petitioner must show actual bias or prejudice as distinct from a mere appearance of bias or prejudice. Matthews v. Roth, 32 F.3d 570 (7th Cir. 1994) (unpublished opinion). "Absent this showing, or some other relevant indicia of bias (like grounds for vindictiveness, or a direct, financial stake in the outcome of the case), this is one of those judicial disqualification matters that simply does not `rise to a constitutional level.'" Id.
Petitioner has alleged that his sentence may have been different if he had been sentenced by a different, impartial and unbiased judge. However, review of the record shows that the sentence imposed was within the permissible limits of the applicable statute. More importantly, the petitioner has failed to show any actual bias by the sentencing judge which resulted in prejudice of a constitutional dimension. Consequently, his counsel's failure to object to the trial judge would also not rise to the required level of prejudice to overcome petitioner's procedural default.
§ 13A-7-7 of the Code of Alabama, 1975 (as amended) sets forth as follows: "Burglary in the third degree. (a) A person commits the crime of burglary in the third degree if he knowingly enters or remains unlawfully in a building with intent to commit a crime therein. (b) Burglary in the third degree is a Class C felony." § 13A-5-9 of the Code of Alabama, 1975 (as amended) sets forth as follows: "(c) In all cases when it is shown that a criminal defendant has been previously convicted of any three felonies and after such convictions has committed another felony, he or she must be punished as follows: (1) On conviction of a Class C felony, he or she must be punished by imprisonment for life or for any term of not more than 99 years but not less than 15 years."
Petitioner next claims that he was prejudiced by trial counsel failure to object to the trial court's amendment of the indictment and alleges that the amendment was not with his consent. The indictment was amended from burglary in the second degree (a Class B felony) to burglary in the third degree (a Class C felony) (Doc. 1) (Doc. 10, Exhibit A). The case action summary indicates that Petitioner withdrew his "plea of not guilty to Burglary in the second degree and entered a plea of guilty to the lesser included offense of Burglary in the third degree." (Doc. 10, Exhibit A, page 1-2). The trial court then noted that "[t]he Court having ascertained in open court that (1) the defendant understands his constitutional rights, the nature of the crime charged in this indictment, and the consequences of his guilty plea, and (2) the defendant understandingly and voluntarily waives his constitutional rights and pleads guilty." (Doc. 10, Exhibit A, page 1-2).
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). However, 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). Therefore, the petitioner has failed to state any basis to show prejudice as a result of the amendment of the indictment which would constitute a violation of federal law.
Petitioner further claims prejudice in that trial counsel failed to object to the failure of the State to give notice of proceeding under the Habitual Felony Offender Act, § 13A-5-9 of the Code of Alabama 1975 (as amended). Petitioner states that at sentencing the State did not produce evidence of any prior convictions and that the State did not give notice of the specific prior convictions upon which it intended to rely. As a result, petitioner alleges he was prejudiced because he was denied the opportunity to challenge the prior convictions used for enhancement. He further alleges that if counsel had objected to the prior convictions there is a reasonable probability that his sentence would have been different (Doc. 1).
The case action summary is silent in regard to application of the Habitual Felony Offender Act "HFOA". However it is apparent from the sentence that the petitioner was sentenced under the HFOA, because he received a life sentence for the Class C felony of burglary in the third degree. See Ala. Code § 13A-5-9 (1975) (as amended). The record indicates that the petitioner had been previously convicted of five felonies for which was serving a thirty year sentence at the time of his plea to the burglary case. (Doc. 10, Exhibit A, p. 26). The record also shows that the petitioner, in a signed admission, acknowledged that he had seven prior felony offenses. (Doc. 20, attachment (c)R-7). The petitioner claims prejudice in that he was not afforded an opportunity to challenge his prior convictions. However, the petitioner fails to state any basis for challenging his prior convictions, even if he had been given the opportunity, which would have resulted in the HFOA not being applied in his case. Accordingly, the petitioner has failed to show the actual prejudice required to overcome procedural default on this issue.
Petitioner claims in his fourth ground that he was prejudiced by his counsel, who was appointed to represent him at the hearing on the post-trial motion to vacate the guilty plea, because she did not argue the recusal of the trial judge as a basis for the motion. He also states that he wrote counsel several letters asking for an appeal of the denial of the motion on the same grounds but counsel did not appeal and that if counsel had appealed the denial there is a reasonable probability that the sentence would have been reversed on appeal (Doc. 1). This allegation is a reiteration of petitioner's first ground. Therefore, for reasons stated supra, the petitioner has failed in ground four to show actual prejudice as a result of any violation of federal law.
CONCLUSION
Upon consideration of the procedural history of this case, and the factors discussed above, this Court finds that petitioner has procedurally defaulted all of his claims. Moreover, petitioner has failed to demonstrate cause for his procedural default or establish prejudice "that worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." United States v. Frady, 456 U.S. at 170, 102 S.Ct. at 1596, 71 L.Ed.2d 816 (1982). Further, Petitioner has failed to establish actual innocence and that a fundamental miscarriage of justice would occur if this Court did not consider his claims. Murray v. Carrier, 477 U.S. at 496, 106 S. Ct. at 2649 ("[I]n an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default.").
Therefore, this Court is procedurally barred from addressing these issues. The undersigned recommends that this habeas petition be denied, that this action be dismissed, and that judgment be entered in favor of Respondent James Deloach and against Petitioner Willie Bell Major on all claims.