Hall v. Gordy

Full title: CHRISTOPHER CHASE HALL, Petitioner, v. CHRISTOPHER GORDY, Respondent.

Court: United States District Court, Southern District of Alabama

Date published: Apr 8, 2022

CA 21-0494-TFM-MU (S.D. Ala. Apr. 8, 2022)

Opinion

CA 21-0494-TFM-MU

04-08-2022

CHRISTOPHER CHASE HALL, Petitioner, v. CHRISTOPHER GORDY, Respondent.

P. BRADLEY MURRAY UNITED STATES MAGISTRATE JUDGE

REPORT AND RECOMMENDATION

P. BRADLEY MURRAY UNITED STATES MAGISTRATE JUDGE

Christopher Chase Hall has petitioned this Court for federal habeas corpus relief pursuant to 28 U.S.C. § 2254. (Doc. 1). Petitioner challenges the validity of his December 6, 2017 attempted rape in the first degree, domestic violence with the underlying offense of strangulation (2 counts), and third-degree felony domestic violence (2 counts) convictions in the Circuit Court of Mobile County, Alabama. He was sentenced on January 22, 2018 to consecutive 33-year terms of imprisonment for attempted rape and the two counts of domestic violence/strangulation and 1 year for each third-degree felony domestic violence conviction. The Alabama Court of Criminal Appeals affirmed Hall's convictions and sentences by unpublished memorandum opinion issued on October 5, 2018. See Hall v. State, 290 So.3d 11 (Ala.Crim.App. 2018) (table). Hall's petition for rehearing was denied on November 2, 2018, id., and his petition for writ of certiorari to the Alabama Supreme Court was denied on January 4, 2019, see Ex parte Hall, 295 So.3d 609 (Ala. 2019) (table), with the certificate of final judgment of affirmance issuing that same date (see Doc. 13-14, PageID. 1044).

Hall filed a Rule 32 petition in the Circuit Court of Mobile County, Alabama collaterally attacking his convictions and sentences on or about December 20, 2019. (Compare Doc. 13-15 with Doc. 13-20, PageID. 1333). The trial court dismissed Hall's collateral petition on April 1, 2020. (See, e.g., Doc. 13-26, PageID.1431-38). The Alabama Court of Criminal Appeals affirmed the trial court's judgment by unpublished memorandum decision issued on March 5, 2021. (See Doc. 13-20). Petitioner's application for rehearing was overruled on April 2, 2021. (Doc. 13-22, PageID. 1372). Hall's petition for writ of certiorari to the Alabama Supreme Court (see Doc. 13-23) was denied without written opinion on August 13, 2021 (Doc. 13-24, PageID. 1401), and the certificate of final judgment issued that same date (Doc. 13-25, PageID. 1402).

In his petition before this Court, filed November 12, 2021 (see Doc. 1, PageID. 14), Hall raises the following issues which he claims entitle him to federal habeas corpus relief: (1) his appellate attorney provided constitutionally ineffective assistance by failing to ensure a complete record on direct appeal, as he did not move to supplement the record on appeal with copies of the two search warrants issued and the appellate court dismissed one of the grounds of appeal for failure to supplement the record with the search warrants (compare Doc. 1, PageID. 8 with Doc. 1-1, PageID. 21 & 30-32); (2) the trial court erred in failing to suppress evidence utilized at his trial that had been previously suppressed by the same judge and, therefore, his conviction was obtained by use of evidence gained pursuant to an unconstitutional search and seizure (compare Doc. 1, PageID. 9 with Doc. 1-1, PageID. 21 & 32-34); and (3) he was entitled to relief on his claim that his possessory interest in his cell phone was violated when the State seized his cell phone without a warrant when he was arrested on February 29, 2016 but then waited some seventeen (17) months before obtaining a search warrant and searching the phone on July 28, 2017 and, therefore, again, his conviction was obtained by use of evidence gained pursuant to an unconstitutional search and seizure (compare Doc. 1, PageID. 10 with Doc. 1-1, PageID. 21 & 33-34). Respondent contends that this Court is procedurally barred from reaching the merits of the second and third claims for relief raised by Petitioner and that his claim of ineffective assistance of appellate counsel has no merit. (See Doc. 13, PageID. 140-46).

This cause is before the Court on the petition (Doc. 1), respondent's answer with attachments (see Doc. 13), and petitioner's response to the undersigned's February 25, 2022 show cause order and the answer of the Respondent (compare Doc. 15 with Docs. 13 & 14). A careful review of the record has been completed. The record contains sufficient facts upon which the issues under consideration may be properly resolved. Therefore, no evidentiary hearing is required. Compare Means v. Secretary, Department of Corrections, 433 Fed.Appx. 852, 855 (11th Cir. July 12, 2011) (“[W]here ‘the record refutes [a petitioner's] factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing.'”) (citation omitted)), cert. denied, 565 U.S 1217, 132 S.Ct. 1580, 182 L.Ed.2d 198 (2012) with Allen v. Secretary, Florida Dep't of Corrections, 611 F.3d 740, 745 (11th Cir. 2010) (“A district court is not required to hold an evidentiary hearing if the claims ‘are merely conclusory allegations unsupported by specifics,' . . . or ‘if the record refutes the applicant's factual allegations or otherwise precludes habeas relief[.]'”), cert. denied, 563 U.S. 976, 131 S.Ct. 2898, 179 L.Ed.2d 1192 (2011). This matter has been referred to the undersigned for the entry of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B), Fed.R.Civ.P. 72, and General Local Rule 72(a)(2)(R).

FACTUAL BACKGROUND

On December 6, 2017, a jury of Hall's peers returned a verdict finding him guilty of attempted rape in the first degree, two counts of domestic violence with the underlying offense of strangulation, and two counts of third-degree felony domestic violence (Doc. 13-6, PageID. 882 & 884-85; see also id., PageID. 885-87 (polling of the jury)), and, on January 22, 2018, he was sentenced to consecutive 33-year terms of imprisonment for attempted rape and the two counts of domestic violence/strangulation and 1 year for each third-degree felony domestic violence conviction (id., PageID. 889 & Doc. 13-7, PageID. 959).

The October 5, 2018, unpublished memorandum decision of the Alabama Court of Criminal Appeals on Hall's direct appeal, see Hall v. v. State, 290 So.3d 11 (Ala.Crim.App. 2018) (table), contains a summary of the evidence produced at trial.

Andrea Beisner testified that she was dating Hall in February 2016, and that they were living together in Mobile. At around 4:00 a.m. on the morning of February 23, 2016, Hall suggested that they drive to Dauphin Island and watch the sun rise. She said that they argued as they were in the car, that they watched the sun rise, and that on the drive back to Mobile they were stopped by police. Beisner testified:

“We were starting to go over that first bridge from the beach and driving over, and he was upset, speeding. So, the police ended up turning on their lights, and that's when he jumped over to the seat [she was occupying]. He was, like, I can't, you know, get a ticket. I don't remember exactly what he said[.] . . . Well, at that point he had already jumped over to the passenger side, and so the car was still moving over the bridge. So, I jumped over to the other side to take the wheel. And then that's when . . . I tried to pull over on the bridge, and they put over the microphone, the police put over the microphone to go down to the end of the bridge. So, I did, and I pulled off right after the bridge ended.”

(R. 135-36.) The police did not give her a ticket and she drove away. Beisner said that she was angry at Hall and kept telling [yelling at] him that he could have put her military service in jeopardy. She pulled off the road, she said, and Hall choked her, and she passed out. When she woke up, she said, her hands were in her lap, and she was still in the car. Beisner continued to [drive, while crying] and Hall told her to pull off so that he could drive the rest of the way back to Mobile. She said:

“He was driving. We pulled off on some road which I'm not familiar with. I know it wasn't the direction back to Mobile,

but we ended up turning on some road. And that's when I started thinking that I [sh]ould, you know, try to get out of all of this. So, he was driving slowly down that road. And it was all like a . . . hill. So, there was like a slope. So, I thought that I might be able to jump out of the car.”

(R. 141.) She jumped out and Hall pulled her back in the car. They continued [on] to Mobile and entered her apartment. She sat on the bed and started to cry. Hall told her to shut up. Beisner said that Hall started to take her clothes off, that she fell off the bed, and that Hall “threw me [back] on the bed.” Hall tried to have sex with her, she said, but was unsuccessful. She [began to] yell[] louder and Hall put his thumbs in her mouth and pulled her off the bed to the floor by her mouth. When he saw [] blood on her face, he apologized. Beisner told Hall that she needed to go to a doctor because she probably needed stitches. She said that Hall then grabbed a knife and told her to hurt him like he had hurt her. She threw the knife to the floor and left the apartment. Beisner said that she was driving to the hospital and Hall was in the car when Hall said that when they saw her he would be arrested. Beisner turned into a median and jumped out [of] the car. She said that Hall got behind the wheel and drove off. Beisner then called emergency 911.

(Doc. 13-9, PageID. 999-1000) (footnotes added).

Appellate counsel for Hall raised three issues on direct appeal: (1) the trial court abused its discretion and denied Appellant due process by not conducting a hearing on his pro se Motion for New Trial (wherein he raised material ineffective assistance of trial counsel claims); (2) the trial court abused its discretion by failing to grant Appellant's pro se Motion for a New Trial based on ineffective assistance of counsel; and (3) the trial court committed reversible error by not suppressing text messages and search history from Appellant's illegally obtained cell phone. (See Doc. 13-8, PageID. 970). In its opinion released on October 5, 2018, the Alabama Court of Criminal affirmed Hall's convictions, finding Hall not entitled to relief on any of his claims. (See Doc. 13-9, PageID. 1002, 1004 & 1005). With respect to Hall's third claim of error on appeal, Alabama's appellate court ruled in the following manner:

Hall [] argues that the circuit court erred in denying his motion to suppress text messages and search history that were recovered from Hall's cell phone. The text messages contained apologies to Beisner, and the internet search history showed that Hall had searched outstanding warrants against him. The State argues that this claim is not properly before this Court because the search warrants are not in the record.

The record shows that Hall moved to suppress evidence obtained from the search of his cell phone. (C. 88.) The circuit court issued the following order: “First search warrant obtained by detectives is suppressed and motion is granted. Court rules that the second search warrant obtained by detectives is valid and admissible. Motion to suppress second warrant is denied.” (C. 90.)

However,

[A]n affidavit and search warrant not contained in the record on appeal cannot be considered on review of the trial court's ruling as to its sufficiency or any of the underlying circumstances supporting the warrant.

. . .

The search warrants are not contained in the certified record that was filed on appeal or the supplemental record. “It is the appellant's duty to provide this court with a complete record on appeal.” Knight v. State, 621 So.2d 394, 395 (Ala.Crim.App.1993). We agree with the State that this issue is not properly before this Court for appellate review. See Thomas.

(Id., PageID, 1004-1005) (some internal quotation marks omitted). Hall's application for rehearing (see Doc. 13-10) was overruled on November 2, 2018 (Doc. 13-11) and his petition for writ of certiorari to the Alabama Supreme Court (Doc. 13-12) was denied without written opinion on January 4, 2019 (Doc. 13-13). The certificate of final judgment of affirmance issued that same date, January 4, 2019. (Doc. 13-14).

Hall filed a Rule 32 petition in the Circuit Court of Mobile County, Alabama collaterally attacking his convictions and sentences on or about December 20, 2019. (Compare Doc. 13-15 with Doc. 13-20, PageID. 1333). The trial court dismissed Hall's collateral petition on April 1, 2020. (See, e.g., Doc. 13-26, PageID.1431-38). The Alabama Court of Criminal Appeals affirmed the trial court's judgment by unpublished memorandum decision issued on March 5, 2021. (See Doc. 13-20).

On direct appeal, Hall argued, among other things, that the circuit court erred in denying his motion to suppress text messages and search history that law enforcement recovered from his cell phone. “The text messages contained apologies to Beisner, and the internet search history showed that Hall had searched outstanding warrants against him.” Hall, mem. at 7.

According to Hall, the trial court granted his motion to suppress the evidence law enforcement obtained from a first search warrant for the phone because the warrant was directed to a Mobile County Sheriff but the officer who performed the search was a Mobile City Police Officer. Hall argued the evidence from the second warrant should have been suppressed also. This Court did not review the issue, however, because Hall had not included the search warrants in the record on appeal.

Hall filed his [Rule 32] petition on December 20, 2019. (C. 17, 113.) Hall alleged in his petition (1) that his appellate counsel was ineffective because counsel did not “supplement the original search warrant into the certified record on appeal” (C. 25); (2) that his trial and appellate counsel were ineffective for not raising alleged violations of Brady v. Maryland, 373 U.S. 83 (1963), based on the State's alleged failure to give trial counsel a copy of the first search warrant for his cell phone and were ineffective for not challenging the State's alleged use of “perjury” to get the second

warrant for his cell phone (C. 27-28); (3) that the trial court erred in not suppressing the evidence taken from his cell phone (C. 30); and (4) that the trial court erred “when it allowed the State to use evidence gained pursuant to perjury” (C. 35.).

Hall moved the circuit court to supplement the record with a copy of the first search warrant, which Hall said was issued in July 2017. (C. 129.) He also moved the circuit court to supplement the record with a copy of the arrest report that he said Detective Eardman had completed. (C. 133.)

The State moved to dismiss the petition at the end of March 2020. (C. 171.) The State asserted that Hall did not plead his claims adequately, that the claims lacked merit, and that some claims were precluded under Rules 32.2(a)(2), 32.2(a)(4), and 32.2(c), Ala.R.Crim.P. The next day, the circuit court summarily dismissed Hall's petition. (C. 229.)

Hall filed another motion to “supplement” his Rule 32 petition, requesting a copy of the July 2017 warrant. (C. 290.) The circuit court denied that motion as moot. Hall timely appealed. (C. 279-80.)

. . .

Hall argues first that the circuit court erred in summarily dismissing his claim that his appellate counsel was ineffective for not moving to supplement the record in his direct appeal with a copy of the search warrants the State used to search the contents of his cell phone. (Hall's brief, p. 27.) In its order summarily dismissing the petition, the circuit court found that Hall did not sufficiently plead this claim and that it lacked merit. (C. 230-32.)

. . .

Hall did not adequately plead this claim alleging ineffective assistance of counsel. Although Hall asserted that including copies of the search warrants would have changed the outcome of the appeal, he did not plead facts showing how that would have been so.

Nor did Hall plead facts showing that there is merit to the claim underlying this claim of ineffective assistance of counsel. In claim (3) of his petition, Hall alleged the trial court erred in not suppressing the evidence from his cell phone. In support of that claim, Hall alleged that in July 2017

law enforcement obtained a warrant to search the contents of his phone. That warrant, Hall said, was “directed to any Mobile County Sheriff yet was executed by a Mobile City Police Officer . . . Lane Whittington” in violation of Anderson v. State, 212 So.3d 252 (Ala. Civ. App. 2016). (C. 30-31.) In Anderson, the Court of Civil Appeals held, in a civil-forfeiture action, that Mobile City Police Department officers had not lawfully executed the search warrant in that case because the warrant “was directed to the sheriff of Mobile County, not to the Mobile Police Department or to ‘any law-enforcement officer,'” and the officers had not received assistance from the Mobile County Sheriff's Office or been deputized by the Mobile County sheriff. 2012 So.3d at 257. . . . According to Hall, after learning about the Anderson decision, law enforcement got a second search warrant, apparently directed to another law enforcement officer, and redid the search of Hall's cell phone, (C. 31.)

Hall's trial counsel moved to suppress the evidence retrieved from Hall's cell phone. At the suppression hearing on the day of the trial, the trial court ruled inadmissible the evidence obtained from the search warrant based on the first warrant, but the court admitted that same evidence based on the second warrant. According to Hall, the trial court relied on the “good faith exception” in Rivers v. State, 695 So.2d 262 (Ala.Crim.App.1997), but Hall says that reliance was improper under Anderson and that the trial court should have suppressed the evidence from the second warrant.

Hall's arguments lack merit. Like the first warrant in Hall's case, an unauthorized law-enforcement officer executed the warrant in Anderson. But unlike Anderson, law enforcement in Hall's case, after realizing there was a problem with the execution of the first warrant, obtained a second warrant. Although Hall challenges the affidavit law enforcement used to get the second warrant, [], he does not challenge the execution of the second warrant. Hall reads Anderson as barring law enforcement from obtaining a second warrant and properly executing it if there is a defect in the execution of the first warrant. We do not read Anderson so broadly. Thus, Anderson does not give Hall a right to relief.

Because the claim underlying Hall's ineffectiveness claim lacks merit, he has no right to relief on that ineffectiveness claim. . . . The circuit court properly dismissed this claim.

. . .

Hall's claims alleging trial court error-issues III and IV (the trial court erroneously denied Hall's motion to suppress), V (the trial court erroneously denied Hall's Brady claims), and VI (the trial court should not have allowed the use of evidence the State got by “perjury”) in Hall's brief on appeal-are nonjurisdictional claims. See, e.g., Barron v. State, 682 So.2d 505, 506 (Ala.Crim.App.1996) (claim that conviction was obtained through evidence gained by an illegal search and seizure is nonjurisdictional) . . . . Thus, those claims are precluded under the applicable grounds of Rule[] 32.2(a), Ala. R. Crim. P., that the State asserted, and the circuit court did not err in summarily dismissing those claims.

The judgment of the circuit court is affirmed.

(Doc. 13-20, PageID. 1333-34, 1335 & 1337-39 & 1340) (footnotes omitted; footnotes added). Petitioner's application for rehearing (Doc. 13-21) was overruled on April 2, 2021 (Doc. 13-22, PageID. 1372). Hall's petition for writ of certiorari to the Alabama Supreme Court (see Doc. 13-23) was denied without written opinion on August 13, 2021 (Doc. 13-24, PageID. 1401), with the certificate of final judgment of affirmance being issued that same date (Doc. 13-25, PageID. 1402).

In his petition before this Court, filed November 12, 2021 (see Doc. 1, PageID. 14), Hall raises the following issues which he claims entitle him to federal habeas corpus relief: (1) his appellate attorney provided constitutionally ineffective assistance by failing to ensure a complete record on direct appeal, as his attorney did not move to supplement the record on appeal with copies of the two search warrants issued and the appellate court dismissed one of the grounds of appeal for failure to supplement the record with the search warrants (compare Doc. 1, PageID. 8 with Doc. 1-1, PageID. 21 & 30-32); (2) the trial court erred in failing to suppress evidence utilized at his trial that had been previously suppressed by the same judge and, therefore, his conviction was obtained by use of evidence gained pursuant to an unconstitutional search and seizure (compare Doc. 1, PageID. 9 with Doc. 1-1, PageID. 21 & 32-34); and (3) he was entitled to relief on his claim that his possessory interest in his cell phone was violated when the State seized his cell phone without a warrant when he was arrested on February 29, 2016 but then waited some seventeen (17) months before obtaining a search warrant and searching the phone on July 28, 2017 and, therefore, again, his conviction was obtained by use of evidence gained pursuant to an unconstitutional search and seizure (compare Doc. 1, PageID. 10 with Doc. 1-1, PageID. 21 & 33-34).

In his Answer, the Respondent contends that this Court is procedurally barred from reaching the merits of the second and third claims for relief raised by Petitioner and that his claim of ineffective assistance of appellate counsel has no merit. (See Doc. 13, PageID. 140-46). Given the invocation of the procedural default doctrine, the undersigned entered a show cause order on February 24, 2022, instructing Petitioner to answer five interrogatories (Doc. 14, PageID. 1538; see id., PageID. 1538-39 (“1. Do you agree with Respondent's position that one or more procedural defaults have occurred? 2. If you do not agree that a default has occurred, give each and every reason for your disagreement. 3. Assuming the Respondent is correct that a procedural default has occurred, for each listed default, give each and every reason that caused (situation, event, or agent that produced result) the default. 4. Assuming that Respondent is correct that a procedural default has occurred, for each listed default state specifically the actual prejudice (specific harm or injury to the outcome of your case) that you suffered as a result of the constitutional violations(s). If more than one procedural default is alleged to have occurred, also state the actual prejudice you suffered as a result of the combined defaults. 5. If you argue that you are actually innocent of the crime(s) upon which your custody is based, state your reasons.”)) and to respond to that portion of the Respondent's answer directed to his ineffective assistance of appellate counsel claim (see id., PageID. 1539, n.1). Hall timely filed his response on March 28, 2022. (Doc. 15). In his response, Petitioner answered only the first two questions posed by the Court, as follows:

Answer 1

No. Petitioner does not agree with respondent's position that one or more procedural defaults have occurred.

. . .

Answer 2

The State has alleged that Petitioner has not exhausted his state court remedies by failing to raise claims two and three on direct appeal. This allegation is not true.

In the State's answer to petitioner's 28 U.S.C. § 2254 petition the State acknowledged that “on direct appeal, Hall argued that: . . . (3) the circuit court erred in denying his motion to suppress text messages and search history that were recovered from Hall's cellular phone.” On direct appeal, counsel claimed that the State had violated Petitioner's possessory interest in his cell phone when the State held Petitioner's cellphone for 17 months before obtaining a search warrant and searching the phone. Exhibit B 23-24 Counsel also claimed the trial court committed reversible error by not suppressing unlawfully gained evidence. In his argument counsel claimed that the State had unlawfully executed the search warrant for petitioner's cell phone and that issuing a second warrant merely to correct the unlawful action of the State “did not cure the improper search.” Exhibit B 20-23 Petitioner's direct appeal was dismissed

due to an insufficient record not on any grounds of preclusion. Exhibit B 7, 8 Petitioner raised the same two claims in his Ala.R.Crim.P. 32 petition to the circuit court. Exhibit I, vol 1 @ 30, 31 The same claim[s are] now in front of this Court for review.

Although Petitioner laid out a more lengthy argument in his Rule 32 petition the claim[s] raised and argued [are] the same claim[s] as raised on direct appeal. Petitioner even relies upon the same case law in his Rule 32 as was relied upon in his direct appeal.

The State has claimed that Petitioner did not raise claims two and three on direct appeal. Petitioner's response to interrogatories and the record show the State's position is incorrect and Petitioner did in fact raise these issues to the state court[s] on direct appeal. Therefore, this Court has the authority to review Petitioner's claims.

(Id., PageID. 1541, 1542 & 1543). Petitioner did not answer the Court's three other questions (see Doc. 15), though instructed to do so (Doc. 14, PageID. 1538 & 1539), and with respect to his ineffective assistance of appellate counsel claim, Hall disagreed with the State that this claim lacks merits but stated that he did “not believe a reply to the State's response would aid this Court in its decision-making process.” (Doc. 15, PageID. 1544).

CONCLUSIONS OF LAW

A. Exhaustion of State Remedies and the Procedural Default Doctrine.

A threshold issue in a federal habeas corpus case brought by a state prisoner is whether the petitioner has properly raised the federal constitutional claims in the state courts, thereby exhausting all available state court remedies. 28 U.S.C. § 2254(b). The origins of the exhaustion requirement are found in principles of comity, “which protect the state court[]s[‘] role in the enforcement of federal law and prevent disruption of state court proceedings.” Jackson v. Estes, 2015 WL 5117717, *8 (N.D. Ala. Aug. 28, 2015), citing Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198, 1203, 71 L.Ed.2d 379 (1982). Courts have cautioned that the exhaustion requirement is not satisfied until each claim has been fully and fairly presented to the state courts for consideration. Picard v. Connor, 404 U.S. 270, 275-76, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971); Heath v. Jones, 863 F.2d 815, 818 (11th Cir. 1989).

In the process of exhausting a claim, a petitioner must comply with all “independent and adequate” state procedures, or else the petitioner will have procedurally defaulted that claim. See Wainwright v. Sykes, 433 U.S. 72, 86-87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977). Indeed, in Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), the Supreme Court stated that it would “not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.” Id. at 729, 111 S.Ct. at 2553-2554. This rule applies whether the state law ground is procedural or substantive. Id. at 729, 111 S.Ct. at 2554. The doctrine applies to bar federal habeas review when a state court declines to address a petitioner's federal claims because the petitioner fails to meet a state procedural requirement. Id. at 729-730, 111 S.Ct. at 2554; see also Wainwright v. Sykes, supra, 433 U.S. at 86-87, 97 S.Ct. at 2506 (federal courts must honor legitimate state trial and appellate procedural rules when enforced by state courts and must decline to review on the merits claims that the state treats as barred absent a showing of cause for non-compliance with such rules and resulting prejudice); Alderman v. Zant, 22 F.3d 1541, 1549 (11th Cir.) (“Pursuant to the doctrine of procedural default, a state prisoner seeking federal habeas corpus relief, who fails to raise his federal constitution[al] claim in state court, or who attempts to raise it in a manner not permitted by state procedural rules is barred from pursuing the same claim in federal court absent a showing of cause for and actual prejudice from the default.”), cert. denied sub nom. Alderman v. Thomas, 513 U.S. 1061, 115 S.Ct. 673, 130 L.Ed.2d 606 (1994). “In these cases, the state judgment rests on independent and adequate state procedural grounds.” Coleman, 501 U.S. at 730, 111 S.Ct. at 2554 (citations omitted).

To determine whether a state court's procedural ruling constitutes an independent and adequate state rule of decision, the Eleventh Circuit applies a three-part test: “First, the last state court rendering a judgment in the case must clearly and expressly state that it is relying on state procedural rules to resolve the federal claim without reaching the merits of that claim. Secondly, the state court's decision must rest solidly on state law grounds, and may not be ‘intertwined with an interpretation of federal law.' Finally, the state procedural rule must be adequate, i.e., it must not be applied in an arbitrary or unprecedented fashion.” Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001) (internal citations omitted), quoting and citing, Card v. Dugger, 911 F.2d 1494, 1516 & 1517 (11th Cir. 1990). When the last state court to rule on the claim has ruled in the alternative, clearly addressing both an independent state procedural ground and the merits of the federal claim, the federal court need credit the state procedural rule and decline to address the merits of the claim. See Harris v. Reed, 489 U.S. 255, 264 n.10, 109 S.Ct. 1038, 1044 n.10, 103 L.Ed.2d 308 (1989).

When a petitioner has procedurally defaulted a claim, a federal court is barred from reaching the merits of that claim unless the petitioner “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.” Coleman, supra, 501 U.S. at 750, 111 S.Ct. at 2565. The cause and prejudice standard applies “uniformly to all independent and adequate state procedural defaults.” Id. at 750-751, 111 S.Ct. at 2565.

In procedural default cases, the cause standard requires the petitioner to show that some objective factor external to the defense impeded counsel's efforts to raise the claim in state court. Objective factors that constitute cause include interference by officials that makes compliance with the state's procedural rule impracticable, and a showing that the factual or legal basis for a claim was not reasonably available to counsel. In addition, constitutionally [i]neffective assistance of counsel is cause. Attorney error short of ineffective assistance of counsel, however, does not constitute cause and will not excuse a procedural default. Once the petitioner has established cause, he must show actual prejudice resulting from the errors of which he complains.

Federal courts retain the authority to issue the writ of habeas corpus in a further, narrow class of cases despite a petitioner's failure to show cause for a procedural default. These are extraordinary instances when a constitutional violation probably has caused the conviction of one

innocent of the crime. We have described this class of cases as implicating a fundamental miscarriage of justice.

McCleskey v. Zant, 499 U.S. 467, 493-494, 111 S.Ct. 1454, 1470, 113 L.Ed.2d 517 (1991) (internal quotation marks and citations omitted), superseded by statute as stated in Banister v. Davis, __ U.S. __, 140 S.Ct. 1698, 207 L.Ed.2d 58 (2020).

In his answer (Doc. 13), the respondent asserts that petitioner's unconstitutional search (and/or seizure) claims are procedurally defaulted because the Alabama Court of Criminal Appeals applied several procedural default principles under Alabama law, namely, those principles found in Ala.R.Crim.P. 32.2(a), to arrive at the conclusion that these federal claims are barred from review (compare Doc. 13, PageID. 141-42 with Doc. 13-20, PageID. 1340). In reaching this conclusion, Alabama's criminal appellate court found that the circuit court did not err in summarily dismissing Hall's Fourth Amendment search and seizure claims (see id.), the Mobile County Circuit Court having specifically determined that Hall's claim that it failed to suppress evidence obtained from the second search warrant precluded under Ala.R.Crim.P. 32.2(a)(2) as having been raised and addressed at trial (see Doc. 13-26, PageID. 1435), and that his Fourth Amendment claim based on his “possessory interest” in his cellphone was precluded from review under Ala.R.Crim.P. 32.2(a)(3) because it could have been but was not raised at trial (see Id. at 1435 & 1436). Compare, e.g., Boyd v. Commissioner, Alabama Dep't of Corrections, 697 F.3d 1320, 1335 (11th Cir. 2012) (“We have squarely held that claims barred under Rule 32.2(a)(3) and (a)(5) are procedurally defaulted from federal habeas review.”), cert. denied, 570 U.S. 920, 133 S.Ct. 2857, 186 L.Ed.2d 914 (2013), with Lightfoot v. Carter, 2018 WL 3800250, *5 (N.D. Ala. June 1, 2018) (recognizing that “[c]ourts have held that claims barred under Rules 32.2(a)(2), (5) and 32.2(b) are independent and adequate grounds that preclude subsequent habeas review.”), report and recommendation adopted, 2018 WL 3795236 (N.D. Ala. Aug. 9, 2018).

The record in this case establishes that the Mobile County Circuit Court held a suppression hearing before Hall's trial began and ruled on the Anderson issue, the only basis raised by Hall before the trial court for excluding the text messages and search history discovered on his cell phone; the trial court, as aforesaid, suppressed the evidence seized pursuant to the first search warrant that was executed but denied the motion to suppress the very same evidence seized pursuant to execution of the second search warrant. Given that ruling, the trial court correctly found that it was procedurally barred, under Ala.R.Crim.P. 32.2(a)(2), from reaching the merits of the Anderson issue again, because that issued had been raised and addressed at trial, see Lightfoot, supra, at *5, and the Alabama Court of Criminal Appeals did not err in upholding the trial court's ruling. The record also establishes that Hall did not present his “possessory interest” search and seizure claim to the trial court in his suppression motion or during the suppression hearing; therefore, the trial court properly found that it was barred from reaching the merits of this claim because it could have been but was not raised at trial, Ala.R.Crim.P. 32.2(a)(3), see Boyd, supa, 697 F.3d at 1335, and the Alabama Court of Criminal Appeals did not err in upholding the trial court's ruling. Accordingly, this Court is barred from reaching the merits of any search and/or seizure claims raised by Hall absent Petitioner demonstrating “cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman, supra, 501 U.S. at 750, 111 S.Ct. at 2565.

Because Petitioner makes no cause and prejudice argument regarding the default of claims two and three (see Doc. 15 (Hall did not answer the Court's questions 3 and 4, though specifically requested to do so)), this Court should conclude that the cause and prejudice exception to the procedural default doctrine is not applicable in this case. See Macklin v. Singletary, 24 F.3d 1307, 1313 (11th Cir. 1994) (in abuse of the writ case, appellate court suggests that habeas courts need perform no analysis when the petitioner fails to argue an exception to application of the doctrine), cert. denied, 513 U.S. 1160, 115 S.Ct. 1122, 130 L.Ed.2d 1085 (1995).

The fundamental miscarriage of justice/actual innocence exception does not apply in this case because Petitioner has not asserted that the actual innocence exception is applicable (see Doc. 15 (Hall did not answer the Court's question 5)) and even had he asserted this exception, he cannot satisfy the standard set forth in Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). That standard requires Hall to show that “a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Id. at 496, 106 S.Ct. at 2649-2650. To be credible, a claim of actual innocence “requires petitioner to support his allegations of constitutional error with new reliable evidence--whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence--that was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324, 115 S.Ct. 851, 865, 130 L.Ed.2d 808 (1995); see also Id. at 327, 115 S.Ct. at 867 (“To establish the requisite probability, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.”). “It is important to note in this regard that ‘actual innocence' means factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 1611, 140 L.Ed.2d 828 (1998) (citation omitted). Here, Hall has not come forward with any new reliable evidence that establishes his actual factual innocence of attempted rape in the first degree, domestic violence with the underlying offense of strangulation (2 counts), and third-degree felony domestic violence (2 counts), for which he was convicted on December 6, 2017. (Compare Doc. 15 with Doc. 1). Accordingly, this case is not one of those rare cases in which the actual innocence exception is applicable.

B. Merits Review of Ineffective Assistance of Appellate Counsel Claim Raised by Hall .

In accordance with the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a petitioner is entitled to habeas corpus relief “on any claim adjudicated on the merits in state court if that adjudication resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” Cox v. McNeil, 638 F.3d 1356, 1360 (11th Cir.) (citing 28 U.S.C. § 2254(d)(1)), cert. denied sub nom. Cox v. Tucker, 565 U.S. 906, 132 S.Ct. 309, 181 L.Ed.2d 189 (2011); see also Jones v. Secretary, Department of Corrections, 644 F.3d 1206, 1209 (11th Cir.) (“[U]nder AEDPA, a federal court may not grant habeas relief on a claim that has been considered and rejected by a state court unless it is shown that the state court's decision was ‘contrary to' federal law then clearly established in the holdings of the United States Supreme Court, 28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000); or that it ‘involved an unreasonable application' of such law, § 2254(d)(1); or that it was ‘based on an unreasonable determination of the facts' in the light of the record before the court, § 2254(d)(2).”), cert. denied sub nom. Jones v. Tucker, 565 U.S. 1041, 132 S.Ct. 590, 181 L.Ed.2d 433 (2011).

Under the “contrary to” clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by th[e Supreme] Court on a question of law or if the state court decides a case differently than th[e Supreme] Court has on a set of materially indistinguishable facts. Under the “unreasonable application” clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from th[e Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.

Williams v. Taylor, 529 U.S. 362, 412-413, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000); see Bottoson v. Moore, 234 F.3d 526, 531 (11th Cir. 2000) (“In addition, a state court decision involves an unreasonable application of Supreme Court precedent ‘if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.'”), cert. denied, 534 U.S. 956, 122 S.Ct. 357, 151 L.Ed.2d 270 (2001).

“A state court decision is contrary to clearly established federal law if it applies a rule that contradicts the governing law set forth in Supreme Court cases or confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to the Court's.” Windom v. Sec'y, Dep't of Corr., 578 F.3d 1227, 1247 (11th Cir. 2009) . . . . A state court decision involves an unreasonable application of federal law when “it identifies the correct legal rule from Supreme Court case law but unreasonably applies that rule to the facts of the petitioner's case. An unreasonable application may also occur if a state court unreasonably extends, or unreasonably declines to extend, a legal principle from Supreme Court case law to a new context.” Putnam v. Head, 268 F.3d 1223, 1241 (11th Cir. 2001) . . . . The statutory phrase “clearly established Federal law” “refers to the holdings, as opposed to

the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

Spencer v. Secretary, Dep't of Corrections, 609 F.3d 1170, 1177-1178 (11th Cir. 2010), cert. denied, 562 U.S. 1203, 131 S.Ct. 1049, 178 L.Ed.2d 869 (2011).

Hall's lead claim of error in his federal habeas petition is his contention that his appellate attorney provided constitutionally ineffective assistance by failing to ensure a complete record on direct appeal, as he did not move to supplement the record on appeal with copies of the two search warrants issued and the appellate court dismissed one of the grounds of his direct appeal for failure to supplement the record with the search warrants. With respect to this ineffective assistance of appellate counsel claim, the appropriate “inquiry turns upon whether the state decision was contrary to or an unreasonable application of Strickland.” See, e.g., Means v. Secretary, Dep't of Corrections, 433 Fed.Appx. 852, 855 (11th Cir. Jul. 12, 2011) (citing Woodford v. Visciotti, 537 U.S. 19, 22, 24-25, 123 S.Ct. 357, 358-360, 154 L.Ed.2d 279 (2002)), cert. denied, 565 U.S. 1217, 132 S.Ct. 1580, 182 L.Ed.2d 198 (2012).

First, under § 2254(d)(1)'s “contrary to” clause, “a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of facts materially indistinguishable facts.”

Next, under the “unreasonable application” clause, a federal habeas court may “grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions but unreasonably applies that principle to the facts” of the case. “In other words, a federal court may grant relief when a state court has misapplied a ‘governing legal principle' to ‘a set of facts different from those of the

case in which the principle was announced.'” Importantly, for a federal habeas court to find a state court's application of Supreme Court precedent “unreasonable,” it is not enough that the state court's adjudication be “incorrect or erroneous”; that application must have been “objectively unreasonable.”

Frazier v. Bouchard, 661 F.3d 519, 530-531 (11th Cir. 2011) (internal citations and brackets omitted), cert. denied sub nom. Frazier v. Thomas, 568 U.S. 833, 133 S.Ct. 410, 184 L.Ed.2d 58 (2012); see also Pair v. Cummins, 373 Fed.Appx. 979, 981 (11^th Cir. Apr. 20, 2010) (“Under the ‘unreasonable application' prong of § 2254(d)(1), the habeas petitioner bears the burden ‘to show that the state court applied Strickland to the facts of his case in an objectively unreasonable manner.' ‘The question is not whether a federal court believes the state court's determination under the Strickland standard was incorrect but whether, that determination was unreasonable-a substantially higher threshold.'” (internal citations omitted)). The foregoing makes clear that “'[i]n addition to the deference to counsel's performance mandated by Strickland, the AEDPA adds another layer of deference-this one to a state court's decision- when we are considering whether to grant federal habeas relief from a state court's decision.'” Means, supra, 433 Fed.Appx. at 855 (citation omitted).

To prevail on an ineffective assistance of counsel claim, a petitioner/defendant is required to show (1) that his attorney's representation fell below “an objective standard of reasonableness” and (2) that a reasonable probability exists that but for counsel's unprofessional conduct, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); see also Johnson v. Alabama, 256 F.3d 1156, 1176 (11th Cir. 2001) (“The petitioner bears the burden of proof on the ‘performance' prong as well as the ‘prejudice' prong of a Strickland claim, and both prongs must be proved to prevail.”), cert. denied sub nom. Johnson v. Nagle, 535 U.S. 926, 122 S.Ct. 1295, 152 L.Ed.2d 208 (2002).

The performance prong of the ineffective assistance standard entails a deferential review of counsel's conduct. In assessing the reasonableness of counsel's performance, courts must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Thus, the Sixth Amendment does not require criminal defense attorneys to take a nothing to lose approach and raise every conceivable nonfrivolous defense.

With respect to prejudice, courts ask whether there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. In the context of a claim that counsel was ineffective on appeal, the court must first perform a review of the merits of the omitted or poorly presented claim. The defendant carries his burden of establishing prejudice if the court finds that the neglected claim would have had a reasonable probability of success on appeal.

Means, supra, 433 Fed.Appx. at 855-856 (internal quotation marks and citations omitted); see also Pair, supra, 373 Fed.Appx. at 981-982 & 982 (“The performance prong of an ineffective assistance claim requires the petitioner to show that, considering all the circumstances, his attorney's representation fell below an objective standard of reasonableness. The standard is that of a reasonable attorney, not a paragon of the bar or an Aristotle or a Clarence Darrow. Moreover, judicial review of an attorney's performance is highly deferential, and the court must eliminate the distorting effects of hindsight and evaluate performance from the attorney's perspective at the time the challenged conduct occurred. In so doing, the court must indulge a strong presumption that the attorney's conduct was objectively reasonable. A petitioner fails to overcome that presumption if the challenged conduct might be considered sound trial strategy. . . . Pair must [also] establish prejudice. It is not enough for him to show that his counsel's deficient performance had some conceivable effect on the jury's verdict. Instead, Pair must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (internal quotation marks and citations omitted)).

As explained below, Hall's sole non-defaulted claim of ineffective assistance of appellate counsel fails. Before looking at that claim, the undersigned would simply note that this is not a § 2254(d)(2) case because Petitioner nowhere (see Docs. 1 & 15) shows by clear and convincing evidence that any of the state courts' factual findings were unreasonable. See, e.g., Duran v. Walker, 223 Fed.Appx. 865, 871 (11th Cir. Mar. 29, 2007) (“[A] state court's factual findings are presumed correct, and the petitioner can rebut them only by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). As such, for a state court's adjudication to result in an unreasonable determination of the facts in light of the evidence presented, ‘[n]ot only must the factual determination have been unreasonable, but the state court's factual findings must be shown unreasonable by clear and convincing evidence.' Callahan v. Campbell, 427 F.3d 897, 926 (11th Cir. 2005), cert. denied, 549 U.S. 952, 127 S.Ct. 427, 166 L.Ed.2d 269 (2006).”), cert. denied, 552 U.S. 874, 128 S.Ct. 179, 169 L.Ed.2d 122 (2007). Accordingly, the undersigned considers solely whether the merits decisions of the Mobile County Circuit Court and the Alabama Court of Criminal Appeals are contrary to, or an unreasonable application of, Strickland v. Washington under § 2254(d)(1).

The trial court read Hall's Rule 32 petition as asserting only that his appellate counsel provided ineffective assistance when he failed “to include the original search warrant with the record on appeal.” (See Doc. 13-26, PageID. 1432). That court found the claim to be without merit because it suppressed the evidence obtained as a result of the original warrant and, therefore, counsel had no need to appeal the suppression decision or append the original search warrant to the record on appeal. (See id.). On appeal, the Alabama Court of Criminal Appeals properly read Hall's claim as broader than did the trial court, noting the claim to be that appellate counsel was ineffective in “not moving to supplement the record in his direct appeal with a copy of the search warrants the State used to search the contents of his cell phone.” (Doc. 13-20, PageID. 1335). Alabama's criminal appellate court, after setting forth the legal standard from Strickland v. Washington, supra (see id., PageID. 1335-37), determined that Hall did not adequately plead this claim (id., PageID. 1337 (“Although Hall asserted that including copies of the search warrants would have changed the outcome of his appeal, he did not plead facts showing how that would have been so.”)), nor did he plead facts demonstrating that the claim underlying the ineffective assistance of counsel claim had any merit (id.; see also id., PageID. 1337-39). That underlying claim was identified as Hall's argument that the trial court erred in not suppressing the very evidence from his cell phone, pursuant to a second search warrant, that the trial court had suppressed based on improper execution of the first warrant under Anderson v. State, 212 So.3d 252 (Ala. Civ. App. 2016). (See id., PageID. 1337-38). The Alabama Court of Criminal Appeals found this underlying claim had no merit; the court found Hall read Anderson too broadly and that case, in fact, did not afford “Hall a right to relief[]” since it did not bar “law enforcement from obtaining a second warrant and properly executing it [even] if there is a defect in the execution of the first warrant.” (See id., PageID. 1338-39). Therefore, the Alabama Court of Criminal Appeals determined that “[b]ecause the claim underlying Hall's ineffectiveness claim lacks merit, he has no right to relief on that ineffectiveness claim.” (Id., PageID. 1339).

Petitioner offers this Court no citation to case law which would establish that the Alabama Court of Criminal Appeals was incorrect in its reading of the Anderson case and determining that the holding in that case was inapplicable in Hall's case since there was no argument that the second warrant was improperly executed. Without clear law establishing application of Anderson to a second warrant properly executed and obtaining the same information as an initial warrant that was improperly executed (resulting in suppression of the information obtained pursuant to the first warrant), appellate counsel would not be deficient in not moving to supplement the record in Hall's direct appeal with a copy of the search warrants the State used to search the contents of his cell phone nor can it be found that the result of Hall's appeal would have been different had the warrants been made a part of the record. And because petitioner has not established the applicability of Anderson, the Alabama criminal appellate court's implicit determinations that appellate counsel was not deficient and the result of his appeal would not have been different are not contrary to or an unreasonable application of Strickland v. Washington. Accordingly, Hall's sole claim of ineffective assistance of appellate counsel lacks merit.

C. Certificate of Appealability. Pursuant to Rule 11(a) of the Rules Governing § 2254 Cases, the undersigned recommends that a certificate of appealability in this case be denied. 28 U.S.C. foll. § 2254, Rule 11(a) (“The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.”). The habeas corpus statute makes clear that an applicant is entitled to appeal a district court's denial of his habeas corpus petition only where a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). A certificate of appealability may issue only where “the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2243(c)(2). The instant habeas petition is being denied partially on procedural grounds without reaching the merits of the underlying constitutional claims, such that “a COA should issue [only] when the prisoner shows . . . that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling[,]” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000), but also on the merits of the underlying constitutional claim of ineffective assistance of appellate counsel, such that a COA should issue only when the petitioner demonstrates “that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong[,]” Slack v. McDaniel, supra, ; see also Id. at 483-484, 120 S.Ct. at 1603-1604 (“To obtain a COA under § 2253(c), a habeas prisoner must make a substantial showing of the denial of a constitutional right, a demonstration that, under Barefoot, includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.'”); see Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003) (“Under the controlling standard, a petitioner must ‘sho[w] that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were “adequate to deserve encouragement to proceed further.”'”). Inasmuch as petitioner has defaulted his unreasonable search and seizure claims pursuant to clearly-defined procedural rules in state court, a reasonable jurist could not conclude either that this Court is in error in dismissing the instant petition or that Hall should be allowed to proceed further, Slack, supra, 529 U.S. at 484, 120 S.Ct. at 1604 (“Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further.”). Moreover, with respect to Petitioner's ineffective assistance of appellate counsel claim, the undersigned recommends that the Court find that reasonable jurists could not debate whether his § 2254 habeas petition should be resolved in a different manner or that any of the remaining issues presented are adequate to deserve encouragement to proceed further.

Rule 11(a) further provides: “Before entering the final order, the court may direct the parties to submit arguments on whether a certificate should issue.” If there is an objection to this recommendation by either party, that party may bring this argument to the attention of the district judge in the objections permitted to this report and recommendation. Brightwell v. Patterson, CA 11-0165-WS-C, Doc. 14 (Eleventh Circuit order denying petitioner's motions for a COA and to appeal IFP in a case in which this Court set out the foregoing procedure); see also Castrejon v. United States, 2011 WL 3241817, *20 (S.D. Ala. June 28, 2011) (providing for the same procedure), report and recommendation adopted by 2011 WL 3241580 (S.D. Ala. Jul. 29, 2011); Griffin v. DeRosa, 2010 WL 3943702, at *4 (N.D. Fla. Sept. 20, 2010) (providing for same procedure), report and recommendation adopted sub nom. Griffin v. Butterworth, 2010 WL 3943699 (N.D. Fla. Oct. 5, 2010).

CONCLUSION

The Magistrate Judge is of the opinion that petitioner's rights were not violated in this cause and that his request for federal habeas corpus relief, pursuant to 28 U.S.C. § 2254 (Doc. 1), should be DENIED. Petitioner is not entitled to a certificate of appealability and, therefore, he is not entitled to appeal in forma pauperis.

NOTICE OF RIGHT TO FILE OBJECTIONS

A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to this recommendation or anything in it must, within fourteen (14) days of the date of service of this document, file specific written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); FED.R.CIV.P. 72(b); S.D. Ala. GenLR 72(c)(1) & (2). The parties should note that under Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice.” 11th Cir. R. 3-1. In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the Magistrate Judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the Magistrate Judge is not specific.