Opinion
Civil Action No. 97-0075-CB.
October 4, 2000.
FINAL JUDGMENT
Pursuant to separate orders entered this date and on March 9, 2000, it is hereby ORDERED, ADJUDGED and DECREED that the petition for writ of habeas corpus be and hereby is DENIED.
MEMORANDUM OPINION and ORDER
The petition for writ of habeas corpus filed by petitioner Jimmy Montgomery is now before the Court for the second time on a Report and Recommendation of the Magistrate Judge, after having taken some unusual procedural twists and turns. Both petitioner and respondent have filed objections to the latest Report and Recommendation (Docs. 36 37). For the reasons discussed more fully below, the Court now concludes that the petition is due to denied because petitioner failed to develop the factual basis for his Sixth Amendment claim in state court. Procedural Background
By Order dated March 9, 2000, the Court adopted that portion of the Magistrate Judge's first Report and Recommendation recommending that the petitioner's three additional grounds for habeas relief be denied.
After the Magistrate Judge issued his first Report and Recommendation, the petitioner filed objections wherein he raised a factual issue which, if proven, would support his Sixth Amendment ineffective assistance of counsel claim. For the first time in any state or federal pleadings, petitioner alleged that counsel's lack of preparation time resulted in his inability to call petitioner's ex-wife, Joyce Shavers, as an alibi witness. As a result of this assertion of prejudice which was not presented to, and therefore not addressed by, the Magistrate Judge, the Court remanded the matter to the Magistrate Judge with instructions to appoint counsel and to hold an evidentiary hearing. In response, the respondent filed an objection and motion to reconsider, arguing that the petitioner was not entitled to an evidentiary hearing because he had failed to develop the factual basis for his claim in state court proceedings. The Court did not resolve the government's motion and allowed the hearing to go forward.
The reason for the lack of adequate preparation time has been discussed in detail in both the first and second Report and Recommendation and in the Court's Order dated March 9, 2000.
The Magistrate Judge held a hearing and later entered a Report and Recommendation, which is now before the Court, proposing alternative findings. First, the Magistrate Judge has concluded that petitioner was not entitled to an evidentiary hearing because petitioner failed to develop the factual basis for his claim in state court as required by 28 U.S.C. § 2254(e)(2). Alternatively, in the event the Court should find that a hearing was warranted, the Magistrate Judge has determined that the petitioner would be entitled to a new trial in state court.
Discussion
Petitioner objects to the first alternative finding and argues that § 2254(e)(2) does not apply because he has been diligent in attempting to raise his Sixth Amendment claim. Respondent objects to the second alternative holding, asserting that petitioner has failed to demonstrate a probability sufficient to undermine confidence in the outcome of the state court trial. Notwithstanding petitioner's argument to the contrary, the Court agrees with the Magistrate Judge's conclusion that petitioner was not entitled to a hearing and that the petition is due to be denied for that reason. Consequently, there is no need to consider the respondent's objection to the second alternative recommendation.
Section 2254 limits the circumstances under which a Court may hold an evidentiary hearing regarding a habeas petitioner's claims. The relevant portion of that provision states:
If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that — (A) the claim relies on — (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for the constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense."28 U.S.C. § 2254(e)(2). In Williams v. Taylor, U.S 120 S.Ct. 1479 (2000), the Supreme Court held that § 2254(e)(2) does not apply to preclude a hearing unless there has been "[a] lack of diligence, or some greater fault, attributable to the prisoner or the prisoner's counsel" in failing to present the factual basis for the claim. Id. 120 S.Ct at 1487. On the other hand, if the prisoner is not diligent in presenting his claims, thereby "contributing to the absence of a full and fair adjudication in state court, § 2254(e)(2) prohibits an evidentiary hearing to develop the relevant claims in federal court, unless the statute's other stringent requirements are met[,] . . . [because] federal courts sitting in habeas are not an alternative forum for trying facts and issues which a prisoner made insufficient effort to pursue in state proceedings."Id. at 1491.
Petitioner argues that the general ineffective assistance of counsel claims he asserted in state court proceedings were sufficient to satisfy the diligence requirement. According to the Supreme Court, "[d]iligence will require in the usual case that the prisoner, at a minimum, seek an evidentiary hearing in state court in the manner prescribed by state law." The Alabama Rules of Criminal Procedure require that a state petition for post-conviction relief "contain a clear and specific statement of the grounds upon which relief is sought, including full disclosure of the factual basis of those grounds. A bare allegation that a constitutional right has been violated and mere conclusions of law shall not be sufficient to warrant any further proceedings." Ala. R. Crim. P. 32.6 (emphasis added). By failing to assert the specific factual basis relied upon here, i.e. the alibi witness, petitioner deprived the state court of the opportunity to address his claim. Thus, petitioner's failure to assert the existence of an alibi witness as the factual basis for his ineffective assistance claim in state court precluded an evidentiary hearing by this court.
The Court notes that the form Rule 32 petition filed by petitioner in state court instructed him to "list each constitutional violation that you claim . . . and include under it each and every fact you feel supports this claim. Be specific and give details." (Ex. H.)
Conclusion
In conclusion, the Court adopts the first alternative set forth in the Report and Recommendation. Petitioner was not entitled to a hearing because he failed to raise the factual basis for the claim at issue in state court. Accordingly, it is ORDERED that the petition for writ of habeas corpus be and hereby is DENIED.