Opinion
Civil Action 00-0003-RV-M
June 27, 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 Ralph Hooks and against Petitioner Michael Andrew Tippitt on all claims.
Petitioner was convicted of first degree sodomy and resisting arrest in the Circuit Court of Baldwin County on September 15, 1997 for which he received sentences of life in the state penitentiary and six months in county jail, respectively. Appeal was made to the Court of Criminal Appeals of Alabama which affirmed the convictions and sentences (Doc. 10, Exhibit 4). Petitioner filed a complaint with this Court on January 3, 2000, raising the following claims: (1) The trial judge gave an improper jury instruction on the insanity defense; (2) the judge refused to give one of Tippitt's proposed charges; (3) the judge improperly denied Petitioner's motions of acquittal; (4) the judge improperly considered certain documents regarding Petitioner's prior felony convictions; and (5) the prosecutor engaged in misconduct (Doc. 4).
Respondent claims that Petitioner has procedurally defaulted on the fourth claim raised in this Court (Doc. 10, pp. 8-9). The evidence of record demonstrates that although Tippitt raised his fourth claim at the Alabama Court of Criminal Appeals, he did not raise it in his petition for certiorari to the Alabama Supreme Court (Doc. 10, Exhibit 6). Because Petitioner did not seek review of this claim in the state's highest court in a timely manner, it is procedurally defaulted under O'Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 1732 (1999) ("[W]e conclude that state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process"). Therefore, Tippitt's fourth claim is procedurally defaulted.
However, where state courts have found claims of a petitioner to be procedurally defaulted, 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 claim 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).
Tippitt has argued that this claim was not raised to the Alabama Supreme Court because his attorney rendered ineffective assistance (Doc. 11, pp. 2-3). However, to prove such a claim, Petitioner would have to show that his attorney was deficient in not raising the claim and that he was actually prejudiced as a result of the deficiency. Srickland v. Washington, 466 U.S. 668 (1984); Evitts v. Lucey, 469 U.S. 387 (1985).
While Tippitt has asserted his attorney's ineffectiveness, the Court finds that he has not demonstrated either prong of the analysis. More pointedly, the Court notes that the Alabama Court of Criminal Appeals, in its memorandum opinion on direct appeal, found no merit in this claim (Doc. 10, Exhibit 4, p. 5). Petitioner has not shown that this claim would have gained new life on certiorari or that his attorney was ineffective in not raising it.
In this action, Petitioner has demonstrated neither cause nor prejudice for failing to raise his fourth claim before the Alabama Supreme Court. Furthermore, Tippitt has not shown that this Court's failure to discuss the merit of this claim will result in a fundamental miscarriage of justice being visited upon him. Therefore, the Court considers the fourth claim in this Court to be procedurally defaulted and the Court will not address its merit.
Petitioner's first claim is that the trial judge gave an improper jury instruction on the insanity defense. Specifically, the judge charged the jury that "[v]olitional problems or the inability of the defendant to conform his conduct to the requirements of law has been excluded as part of the insanity defense statute in the state of Alabama" (Doc. 10, Exhibit A, p. 279). Tippitt argues that the error in this instruction is that it removes from the jury's purview a factor which it should consider.
The Court notes initially that "improper jury instructions can never be the basis for federal habeas corpus relief unless the instruction rendered the whole trial so unfair as to amount to a denial of due process." Jones v. Dugger, 888 F.2d 1340, 1343 (11th Cir. 1989), citing Carrizales v. Wainwright, 699 F.2d 1053, 1055 (11th Cir. 1983). The Court also notes that Petitioner, in his brief on direct appeal, concedes that the jury instruction is a proper statement of Alabama law (Doc. 10, Exhibit 2, pp. 1-5). The Alabama Court of Criminal Appeals found that the charge did not remove juror discretion, as had been alleged, and that the trial judge had committed no error (Doc. 10, Exhibit 4, pp. 1-2). This Court has reviewed the entire charge and finds that it did not render Tippitt's trial unfair ( see Doc. 11, Exhibit A, pp. 271-85).
Petitioner next claims that the judge refused to give a proposed charge to the jury. The requested charge instructed the jury to not concern itself with what would happen to Tippitt in the event that he was found not guilty by reason of insanity (Doc. 1, Supp. pp. 2-3).
Under Alabama law, requested jury charges are properly refused where the charges are "substantially covered in [the] trial court's oral charge to the jury." Kennedy v. State, 277 So.2d 878, 879 (Ala. 1973), citing Gautney v. State, 222 So.2d 175 (Ala. 1969); Kemp v. State, 179 So.2d 762 (Ala. 1965). In this action, the trial judge told the jury that it "should have no interest in the outcome of this case one way or the other" (Doc. 10, Exhibit A, p. 272). The Court also notes that the Alabama Court of Criminal Appeals held that a portion of Tippitt's requested charge was an incorrect statement of law and that the trial judge properly refused the request (Doc. 10, Exhibit 4). Petitioner's claim is of no merit.
The next claim raised is that the judge improperly denied his motions regarding his plea of insanity. More specifically, Tippitt had moved for directed verdicts of acquittal at the close of the State's evidence as well as when the defense concluded its case (Doc. 4, Supp. pp. 4-8).
The Alabama Court of Criminal Appeals, on direct appeal, reviewed this claim and found no state law violation (Doc. 10, Exhibit 4, pp. 3-4). The Court notes that "state court construction of state law is binding on federal courts entertaining petitions for habeas relief." Beverly v. Jones, 854 F.2d 412, 416 (11th Cir. 1988), cert. denied, 490 U.S. 1082 (1989), quoting Tyree v. White, 796 F.2d 390, 392-93 (11th Cir. 1986) ( citing Missouri v. Hunter, 459 U.S. 359 (1983)). Furthermore, "a state's interpretation of its own laws provides no basis for federal habeas relief since no question of a constitutional nature is involved." Beverly, 854 F.2d at 416, citing Carrizales v. Wainwright, 699 F.2d 1053, 1054-55 (11th Cir. 1983).
The Court also notes that to the extent this claim sounds like one of insufficient evidence, the Court has reviewed the evidence and found that it was constitutionally adequate as there was evidence presented at the trial from which a reasonable trier of fact could find Petitioner guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979). There is no merit to Petitioner's claim that the trial judge improperly denied his motions for acquittal.
Tippitt's final claim is that the prosecutor engaged in misconduct. There are two components to this claim. Before discussing either of those particular assertions, however, the Court notes that the Eleventh Circuit Court of Appeals has stated that "[p]rosecutorial misconduct is a basis for reversing an appellant's conviction only if, in the context of the entire trial and in light of any curative instruction, the misconduct may have prejudiced the substantial rights of the accused. United States v. Reed, 887 F.2d 1398, 1402 (11th Cir. 1989), cert. denied, 493 U.S. 1080 (1990).
The Court notes initially that one component of this claim is that Tippitt was forced to participate in a "show-up" identification where the victim had the opportunity to view him alone within a short period of time after the attack. The Court notes, though, that the Eleventh Circuit Court of Appeals has specifically upheld the use of show-up identifications. Johnson v. Dugger, 817 F.2d 726, 729 (11th cir. 1987) ("immediate confrontations allow identification before the suspect has altered his appearance and while the witness' memory is fresh").
The other component of this claim is that the prosecutor coached "a juvenile witness about certain distinctive physical characteristics of the defendant's appearance" before trial (Doc. 4). The evidence shows that the prosecutor told the witness before the trial began that Petitioner had shaved his head and grown a beard since the attack (Doc. 10, Exhibit A, pp. 76-77). However, the victim testified that he was absolutely certain that Tippitt was his attacker because he could "tell by his forehead and the way his eyebrows are set" ( id. at p. 78). The Court finds that there is no merit in Petitioner's claim that the prosecutor engaged in wrongful conduct. Petitioner has not demonstrated that his rights have been prejudiced by the actions of the prosecutor.
Tippitt has raised five claims in bringing this action. One of those claims is procedurally defaulted; the other four are without merit. Therefore, it is recommended that this habeas petition be denied, that this action be dismissed, and that judgment be entered in favor of Respondent Ralph Hooks and against Petitioner Michael Andrew Tippitt on all claims.