Opinion
Civil Action 99-0562-CB-M.
May 22, 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 Jones and against Petitioner Jack King, Jr. on all claims.
Petitioner was convicted of two counts of rape first degree in the Circuit Court of Coffee County on October 18, 1995 for which he received a sentence of life without parole in the state penitentiary (Doc. 1, p. 3; Doc. 18, p. 1). Appeal was made to the Court of Criminal Appeals of Alabama which affirmed the conviction and sentence ( see Doc. 18, Exhibit C). King filed a complaint with this Court on June 17, 1999, raising the following claims: (1) His trial attorney rendered ineffective assistance; (2) his appellate attorney rendered ineffective assistance; (3) the State prosecutor improperly used her preemptive strikes to eliminate white males from the jury; and (4) Petitioner was denied the right to be present at all critical stages of the trial (Docs. 1, 19).
Respondent claims that Petitioner has procedurally defaulted on the first two claims. It is noted that 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 Petitioner raised both claims, ineffective assistance of trial and appellate counsel, in his State Rule 32 petition (Doc. 18, Exhibit A, pp. 1-8, 15-23). The Circuit Court Judge denied the petition (Doc. 18, Exhibit A, pp. 49-52). On appeal, the Alabama Court of Criminal Appeals held that the two claims of ineffective assistance were procedurally defaulted because Petitioner had not met the specificity requirements of Ala.R.Crim.P. Rule 32.6(b) (Doc. 18, Exhibit C).
Without setting them out, the Court notes that each particular allegation of ineffective trial assistance raised herein was also raised in King's Rule 32 petition (Doc. 1, Supp. pp. 2-7; cf. Doc. 18, Exhibit A, pp. 16-19, 22). The Court also notes that all particular allegations, except for one, of ineffective appellate assistance raised herein were raised in King's Rule 32 petition (Doc. 1, Supp. pp. 7-10; cf. Doc. 18, Exhibit A, pp. 19-20). The one particular raised now which was not raised in the State courts was that his appellate attorney rendered ineffective assistance in that he "failed to investigate Petitioner's case, Trial Records, and/or issues of merit" (Doc. 1, Supp. p. 9).
"The petition must contain a clear and specific statement of the grounds upon which belief 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."
A determination as to whether these claims are procedurally defaulted in this Court requires more consideration than claims found defaulted under Harris and Teague. While the state appellate court refused to address the claims on procedural grounds, the reason was not that Petitioner did not actually raise them in the proper forum; rather, the Court held that the allegations were not factually sufficient to sustain the claim.
The United States Supreme Court, in Williams v. Taylor, 120 S.Ct. 1479 (2000), discussed the effect changes made in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) had on 28 U.S.C. § 2254, finding that the changes made it more difficult for federal habeas petitioners to obtain review of their claims if they have not been diligent in pursuing those claims in the state courts. The relevant portion of the changed statute states as follows:
(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence. (2) 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 constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.28 U.S.C. 2254(e).
In this action, the Court has reviewed Petitioner's Rule 32 petition and his brief on appeal, focusing specifically on the sections relevant to his two ineffective assistance claims (Doc. 18, Exhibit A, pp. 16-20, 22; Doc. 18, Exhibit A, Appellant's Brief), and finds that the state appellate court was correct: King's allegations were not supported by specific facts and amounted to no more than bare allegations. Finding the State court's conclusions relevant to this claim to be correct, this Court further finds that Petitioner has not satisfied the hurdles of § 2254(e)(2) as discussed in Williams. The Court finds that King's ineffective assistance of counsel claims are procedurally defaulted and their merit will not be discussed.
The Court noted in footnote one that King had not claimed that his appellate attorney rendered ineffective assistance in failing "to investigate Petitioner's case, Trial Records, and/or issues of merit" in the State courts' (Doc. 1, Supp. p. 9). Because the State courts never had the opportunity to address this allegation, it is procedurally defaulted under Teague.
However, where the state courts have found claims of a petitioner to be procedurally defaulted and those courts have refused to address the merits 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).
In this action, Petitioner has demonstrated neither cause nor prejudice in failing to raise the claim that his appellate attorney rendered ineffective assistance in failing to investigate his case. Furthermore, King has not shown that this Court's failure to discuss the merit of this particularized claim will result in a fundamental miscarriage of justice being visited upon him. Therefore, the Court considers this claim to be procedurally defaulted and the Court will not address its merit.
In summary, the Court finds that Petitioner's two claims of ineffective assistance are procedurally defaulted. All particular claims but one are defaulted because they were not raised with specificity and supported by factual evidence to support their assertion in the State courts as discussed in Williams and contemplated in § 2254(e). The other particular claim is precluded from this Court's consideration by Teague.
King has claimed that the State prosecutor improperly used her preemptive strikes to eliminate white males from the jury. More specifically, Petitioner alleges that nineteen or twenty of twenty-six strikes were used in a discriminatory fashion (Doc. 1, pp. 10-11).
In J.E.B. v. Alabama, 511 U.S. 127, 146 (1994), the U.S. Supreme Court concluded that a State prosecutor's use of peremptory challenges to strike jury venire members on the basis of gender violated the Equal Protection Clause. Noting the analysis of Batson v. Kentucky, 476 U.S. 79, 96-97 (1986), overruled in part, Powers v. Ohio, 499 U.S. 400 (1991), which held unconstitutional the discriminatory preemptive striking of jurors on the basis of race, the Court stated that a party claiming gender discrimination "must make a prima facie showing of intentional discrimination before the party exercising the challenge is required to explain the basis for the strike." J.E.B., 511 U.S. at 144-45. While the Batson Court did not specify the showing necessary to establish a prima facie case of discrimination, it acknowledged that a case may be made solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial.
In Powers, the Supreme Court held "that a criminal defendant may object to race-based exclusions of jurors affected through peremptory challenges whether or not the defendant and the excluded juror share the same race." Powers, 499 U.S. at 402.
In considering whether the defendant has made the requisite showing, courts should consider that "a `pattern' of strikes against jurors included in the particular venire might give rise to an inference of discrimination," and that a "prosecutor's questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose." Batson, 476 U.S. at 96.
Respondent has provided information regarding jury selection at King's trial which demonstrates that the Prosecutor used twenty-seven peremptory strikes to strike twenty-one white males, one black male, three white females and two black females ( see Doc. 18, pp. 12-15). A jury, including an alternate, was empaneled which consisted of five white males, four white females, three black females, and one female of unknown race. Id. The Court notes that this evidence demonstrates that five males sat on King's jury although the Prosecutor had six strikes she could have used to eliminate them. The Court finds that Petitioner has not demonstrated discrimination in the Prosecutor's striking of jurors. This claim is of no merit.
King has also claimed that he was denied the right to be present at all critical stages of the trial. Specifically, he was not present at a jury charge conference among the trial judge and the attorneys (Doc. 1, pp. 11-12). The law concerning King's claim is as follows:
A defendant's right to be present at all stages of a criminal trial derives from the confrontation clause of the sixth amendment and the due process clause of the fourteenth amendment. Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 1058, 25 L.Ed.2d 353 (1970); Hopt v. Utah, 110 U.S. 574, 579, 4 S.Ct. 202, 204, 28 L.Ed. 262 (1884). This right extends to all hearings that are an essential part of the trial — — i.e., to all proceedings at which the defendant's presence "has a relation, reasonably substantial to the fulness of his opportunity to defend against the charge." Snyder v. Massachusetts, 291 U.S. 97, 105-06, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934).Proffitt v. Wainwright, 685 F.2d 1227, 1256 (11th Cir. 1982), cert. denied, 464 U.S. 1002 (1983) (footnote omitted). However, "[t]he right . . . does not confer upon the defendant the right to be present at every conference at which a matter pertinent to the case is discussed, or even at every conference with the trial judge at which a matter relative to the case is discussed." United States v. Vasquez, 732 F.2d 846, 848 (11th Cir. 1984) (concluding that the defendant did not have the right to be present at a bench conference called to discuss an evidentiary matter which was attended by his counsel).
King has not demonstrated that he was prejudiced because of his failure to be present at the charge conference. Although Petitioner asserts that he had requested that a particular charge regarding a lesser included offense be made, he has not shown that his presence at the hearing would have ensured that the charge would have been made or that even if the charge had been made, the outcome of the trial would have been any different. This claim is of no merit.
Petitioner has raised four different claims in bringing this action. Two of those claims are procedurally defaulted; the other two are without merit. Therefore, it is recommended that this petition be denied, that this action be dismissed, and that judgment be entered in favor of Respondent Charlie Jones and against Petitioner Jack King, Jr. on all claims