Opinion
Civil Action 98-0064-RV-M.
April 14, 2000
REPORT AND RECOMMENDATION
This is an action under 28 U.S.C. § 2254 by an Alabama inmate which was referred for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B), Local Rule 72.2(c)(4), and Rule 8 of the Rules Governing Section 2254 Cases. This action is now ready for consideration. The state record is adequate to determine Petitioner's claims; no federal evidentiary hearing is required. It is recommended that the habeas petition be denied, that this action be dismissed, and that judgment be entered in favor of Respondent Charlie E. Jones and against Petitioner Carlos Jack Subel on all claims.
Petitioner was convicted of rape first degree and sodomy first degree in the Circuit Court of Baldwin County on Mary 18, 1988 for which he received sentences of life without parole in the stat. penitentiary on each count, to be served consecutively (Docs 1, 12) Appeal was made to the Court of Criminal Appeals of Alabama which affirmed the convictions and sentences (Doc. 12, Exhibit K). Petitioner filed a complaint with this Court on January 12, 1998, raising the following claims: (1) The State improperly used its peremptory strikes to strike males from the jury; (2) the trial judge erred in not exploring an apparent conflict Petitioner had with his trial attorney; (3) the trial court improperly denied Petitioner's motion for a mistrial based on prosecutorial misconduct; (4) Petitioner's trial attorney rendered ineffective assistance; and (5) Petitioner's appellate attorney rendered ineffective assistance (Docs. 1, 36).
The evidence demonstrates that Petitioner previously filed a habeas petition in this Court, that it was determined that the claim that he was not properly represented by counsel on appeal was meritorious, and that this Court ordered the State to allow Subel, "with the assistance of counsel, to respond to the state's motion for rehearing and motion to dismiss his appeal filed with the Alabama Court of Criminal Appeals" (Doc. 12, Exhibit F; see also Exhibit E).
Subel claims that his trial attorney rendered ineffective assistance of counsel in that he: (a) failed to call crucial witnesses to testify; (b) did not request a jury charge on the lesser included offense of sexual misconduct; (c) failed to request a jury charge on an alibi defense; (d) did not impeach the victim with prior sworn testimony; (e) failed to object to the prosecutor's striking of male members from the jury venire; (f) did not have the trial judge explore the apparent conflict Subel had with his attorney; (g) failed to secure evidence from the previous trial; (h) did not object to evidence regarding Petitioner's blood type; (i) failed to impeach witness Debbie Hill; (j) did not impeach witness Vicki Lee; (k). failed to explore Petitioner's claim that he was drinking on the day of the incident; (l) did not accept a court-offered continuance of the trial even though he had had little time to prepare; (m) failed to pursue Petitioner's immediate sentencing following the jury verdict; (n) did not object to the prosecutor's use of non-disclosed exculpatory evidence; (o) failed to question the prosecution's suggestive identification procedure; (p) made a prejudicial opening statement; and (q) called the victim's husband as a defense witness (Doc. 1, supplemental pages 3-5; cf. Doc. 12, pp. 1-3).
Subel added his second claim in an amended petition on February 23, 2000 (Doc. 36).
Respondent claims that Petitioner has procedurally defaulted on the first, second, and fifth claims raised in this Court as well as twelve of seventeen particulars raised under the ineffective assistance of trial counsel claim (Docs. 12, 37). However, a United States Supreme Court decision, Harris v. Reed, 489 U.S. 255 (1989), discussed procedural default and stated that "a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case `clearly and expressly' states that its judgment rests on a state procedural bar." Harris, 489 U.S. at 263, citing Caldwell v. Mississippi, 472 U.S. 320, 327 (1985), quoting Michigan v. Long, 463 U.S. 1032, 1041 (1983). However, in Teague v. Lane, 489 U.S. 288 (1989), the U.S. Supreme Court stated that the rule of Harris is inapplicable where a habeas petitioner did not raise a particular claim in state courts so that they never had the opportunity to address the claim.
The evidence of record demonstrates that Subel raised his first claim, that the State improperly struck all males from the jury, in his Rule 32 petition; however, the claim was found to be procedurally defaulted as it could have been raised earlier in the state courts but was not (Doc. 12, Exhibits L, M, O). This claim is procedurally defaulted under Harris.
Petitioner has apparently never raised his second claim, that the trial judge erred in not exploring an apparent conflict Petitioner had with his trial attorney. While the claim was raised under the. ineffective assistance of trial counsel umbrella on direct appeal ( see Doc. 12, Exhibit B, pp. 5-7), it was not raised as a separate claim. This claim is procedurally defaulted under Teague.
Petitioner raised the claim that his trial attorney rendered ineffective assistance of counsel in that he failed to object to the prosecutor's striking of male members from the jury venire and did not object to the prosecutor's use of non-disclosed exculpatory evidence in his Rule 32 petition (Doc. 12, Exhibits L, M). However, the Alabama Court of Criminal Appeals found these claims to be procedurally defaulted because they could have been — but were not — raised on direct appeal (Doc. 12, Exhibit O). These two particulars are procedurally defaulted under Harris.
These claims correspond to particulars 4e and 4n ( see footnote two).
Petitioner has apparently never raised in the State courts the claim that his trial attorney was ineffective because he did not request a jury charge on alibi; failed to secure evidence from the previous trial; did not object to evidence regarding Petitioner's blood type; failed to impeach witness Debbie Hill; did not impeach witness Vicki Lee; failed to explore Subel's claim that he was drinking on the day of the incident; did not accept a court-offered continuance of the trial even though he had had little time to prepare; failed to pursue Petitioner's immediate sentencing following the jury verdict; failed to question the prosecution's suggestive identification procedure; and made a prejudicial opening statement. These particulars are defaulted under Teague.
These claims correspond to particulars 4c, 4g, 4h, 4i, 4j, 4k, 41, 4m, 4o, and 4p ( see footnote 2).
Petitioner raised his fifth claim, that his appellate attorney rendered ineffective assistance, in his Rule 32 petition (Doc. 12, Exhibits L, M). The Alabama Court of Criminal Appeals, however, did not address the claim, finding it barred under Ala.R.Crim.P. 32.6(b) because Petitioner had failed to "disclose the factual basis supporting the ground" (Doc. 12, Exhibit O, p. 2). This claim is procedurally defaulted under Harris.
However, where the state courts have found claims of a petitioner to be procedurally defaulted and those courts have refused to address the merit of those claims, as is the case here, all chance of federal review is not precluded. The Eleventh Circuit Court of Appeals, in addressing the review of these claims, has stated the following:
Under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) and its progeny, noncompliance with a state procedural rule generally precludes federal habeas corpus review of all claims as to which noncompliance with the procedural rule is an adequate ground under state law to deny review. If a petitioner can demonstrate both cause for his noncompliance and actual prejudice resulting therefrom, however, a federal court can review his claims.Booker v. Wainwright, 764 F.2d 1371, 1376 (11th Cir.) (citations omitted), cert. denied, 474 U.S. 975 (1985). A claimant can also avoid the procedural default bar if it can be shown that a failure to consider the claims will result in a fundamental miscarriage of justice. Engle v. Isaac, 456 U.S. 107, 135 (1982); see also Murray v. Carrier, 477 U.S. 478, 496 (1986).
Subel has asserted that many of these claims were raised in a motion for a new trial which was denied (Doc. 14). The Court notes, though, that raising the claims in that particular motion was insufficient; they should have been raised on direct appeal. Petitioner has asserted that they were not raised on appeal because of the ineffective assistance of his appellate attorney (Doc. 14) However, that claim is procedurally defaulted because Subel did not raise it in a timely fashion. The Court finds that Petitioner has demonstrated neither cause nor prejudice for his failure to properly raise these claims in the state courts. Furthermore, the Court finds that no miscarriage of justice will be visited upon Subel if the merit of these claims is not reached. Petitioner's first, second, and fifth claims, as well as particulars c, e, g, h, i, j, k, l, m, n, o, and p of claim four, are procedurally defaulted; their merit will not be discussed in this Court.
For accounting. purposes, the Court notes that the claims which are not procedurally defaulted are Petitioner's third claim and particulars a, b, d, f, and q of claim four.
Subel claims that the trial court improperly denied his motion for a mistrial based on prosecutorial misconduct. Petitioner has more specifically claimed that while he was testifying at his trial, the prosecutor asked him a highly prejudicial question about an alleged police stop (Doc. 1, pp. 25-26).
The Court notes that the prosecutor asked Subel the following question: "Jack, isn't it true that when you were stopped relative to the burglary here in Baldwin County, and Skip Callaway pulled you over, and when you were stopped, you had women's underwear in there with the crotches cut out?" (Dcc. 12, Exhibit A, R. 275). Subel's attorney immediately moved for a mistrial and argued the motion outside the presence of the jury ( id. at R. 275-76). The judge denied the motion and gave a curative instruction in which the jury was instructed to strike from consideration the prosecutor's comment as it was in no way relevant to the case; the judge then polled the jury whose members all indicated that they could disregard the remark ( id. at R. 277).
The United States Supreme Court has discussed prejudicial remarks made by a prosecuting attorney and held that the relevant inquiry is whether the remarks "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974); see also Darden v. Wainwright, 477 U.S. 168 (1986). To make this determination, the reviewing court must determine "whether there is a `reasonable probability' that, but for the prosecutor's offending remarks, the outcome" would have been different. Williams v. Kemp, 846 F.2d 1276, 1283 (11th Cir. 1988), cert. denied, 494 U.S. 1090 (1990) (citations omitted). "Reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.
In light of these cases, the Magistrate Judge cannot say that Petitioner would have sustained his burden of showing that he was denied a fair trial because of the prosecuting attorney's question. The Court cannot say that there is a reasonable probability that the outcome of Subel's trial would have been different if the prosecutor had not asked the question. The attorney's remarks were, at most, harmless error under the language of DeChristoforo.
Petitioner has claimed that his trial attorney rendered ineffective assistance of counsel. More specifically, Subel asserts that his trial attorney: (a) failed to call crucial witnesses to testify; (b) did not request a jury charge on the lesser included offense of sexual misconduct; (d) did not impeach the victim with prior sworn testimony; (f) did not have the trial judge explore the apparent conflict Subel had with his attorney; and (q) called the victim's husband as a defense witness.
In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court defined the showing a habeas petitioner must make to prevail on an ineffective assistance claim:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the sixth amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.Id. at 687.
Petitioner claims that his attorney rendered ineffective assistance in failing to call crucial witnesses to testify. Subel listed five witnesses as critical to his defense, as well as several others who would have been helpful, along with what he thinks their testimony would have been (Doc. 1, pp. 6-10).
The Alabama Court of Criminal Appeals rejected this claim because Petitioner had not provided factual support for the assertion as he had not "offer[ed] any hint as to the thrust of these witness's anticipated testimony" (Doc. 12, Exhibit K, pp. 4-5). Though Subel has stated with particularity in this petition what these witness's testimony would have been, the federal habeas statute precludes this Court from considering it unless Petitioner shows that his claim relies on either "a flew rule of constitutional law" or "a factual predicate that could not have been previously discovered through the exercise of diligence." 28 U.S.C. § 2254(e)(2). As Petitioner knows what the testimony of these witnesses would have been because it is what they testified to in the first trial, this Court finds that Subel has not satisfied the statute. It is too late for Petitioner to bring forth this information in this petition.
Subel next claims that his trial attorney rendered ineffective assistance in that he did not request a jury charge on the lesser included offense of sexual misconduct. Subel asserts that because the evidence at trial demonstrated that the victim did not scream during the assault and because there was no physical finding of assault, a charge on the lesser included offense was warranted (Doc. 1, p. 10).
The Alabama Court of Criminal Appeals noted that Petitioner had presented an alibi defense rather than offering evidence that he had engaged in sexual relations with the victim with something less than forcible compulsion; this finding led that Court to conclude that Subel had failed to support the request for a charge on sexual misconduct (Doc. 12, Exhibit K, p. 5). Being mindful of the habeas requirement that written, factual findings be presumed correct when made by a state tribunal following a hearing where both sides of a dispute have had an opportunity to make their case, 28 U.S.C. § 2254(e)(1); see also Sumner v. Mata, 449 U.S. 539 (1981), this Court concludes that the decision reached by the State court is supported by the record. This claim is of no merit.
Petitioner also claims that his attorney rendered ineffective assistance in that he did not impeach the victim with prior sworn testimony. Subel has set out the testimony from the two trials showing their inconsistencies (Doc. 1, pp. 11-14).
Petitioner raised this claim on direct appeal where the appellate court found no merit to the claim because Subel had "neither shown nor alleged what the contents of that [first] transcript may be" (Doc. 12, Exhibit K, p. 5). As noted earlier, the federal habeas statute precludes this Court from considering the information Subel now presents which was not presented in the state courts unless he shows that his claim relies on either "a new rule of constitutional law" or "a factual predicate that could not have been previously discovered through the exercise of diligence." 28 U.S.C. § 2254(e)(2). Petitioner has not done that; this Court will not consider the claim.
Subel has also claimed ineffective trial assistance in that his attorney did not have the trial judge explore the apparent conflict between the two of them. The conflict was that his attorney had previously been a judge who had accepted a guilty plea from Subel and sentenced him to the penitentiary on a charge of burglary (Doc. 1, pp. 14-15).
The Court notes that the trial attorney went on the record with the "conflict" before the trial started so that the trial judge would be aware of their circumstance ( see Doc. 12, Exhibit A, pp. 3-4) After setting out the facts, the attorney asked Subel if there was any problem with his representing him and Subel responded: "No, no problems whatsoever with me on that." Id. Petitioner went on to say that he wished to have this attorney represent him. Id.
The Alabama Court of Criminal Appeals held that Subel had "waived his right to conflict-free counsel" (Doc. 12, Exhibit K, p. 4). The appellate court further noted that, under Alabama law, "the naked fact that a defendant's trial counsel previously served as a judge in a case in which that defendant was involved is not sufficient grounds to support a conflict of interest claim." Id. (citations omitted). This Court agrees with the Alabama Court of Criminal Appeals, finding that Subel has not demonstrated how he was prejudiced by the alleged conflict.
Petitioner's final ineffective assistance claim is that his attorney called the victim's husband as a defense witness. Subel does not state, however, how that victim's testimony prejudiced him. The Court has reviewed the testimony and finds nothing prejudicial to Petitioner there. This claim is of no merit. The Court finds no merit to any of the particulars raised in Subel's ineffective assistance of counsel claim.
In summary, Petitioner raised five different claims in this action. Three of those claims, and twelve of seventeen particulars of a fourth claim, were found to be procedurally defaulted. The balance of the claims were without merit. Therefore, it is recommended that the habeas petition be denied, that this action be dismissed, and that judgment be entered in favor of Respondent Charlie E. Jones and against Petitioner Carlos Jack Subel on all claims.