Opinion
Civil Action No. 97-0295-AH-L
July 14, 2000
REPORT AND RECOMMENDATION
Eddie James Briskett, a state prisoner currently in the custody of the respondent, filed his complaint for habeas corpus relief pursuant to 28 U.S.C. § 2254 on May 14, 1997 (Doc. 4). After service of that complaint, respondent filed an answer on August 7, 1997 (Doc. 16). On August 13, 1997, the Court ordered respondent to file an amended answer addressing the merits of petitioner's claims, and the respondent filed a supplemental answer on September 25, 1997. Thereafter, the Court ordered a second supplemental answer from the respondent, which was filed on November 17, 1997 (Doc. 30). The petitioner filed a motion to file amended complaint (Doc. 23), which was denied on November 21, 1997 (Doc. 31.) Thereafter the case was transferred to the undersigned on January 5, 2000.
This action has been referred to the undersigned for entry of proposed findings of fact and a recommendation as to the appropriate disposition of the issues in the complaint; 28 U.S.C. § 636(b)(1)(B); 28 U.S.C. foll. § 2254, Rule 8(b)(1). After a complete review of this action, the undersigned determines that Briskett's petition should be denied.
FINDINGS OF FACT
1. Petitioner is attacking his May 4, 1994, conviction in the Circuit Court of Mobile County on charges of assault in the second degree and burglary in the first degree. See Doc. 4.
2. Petitioner was represented during trial by Jim Ziegler, and on appeal by Joseph M. Powers, both appointed counsel (Doc. 16, Exhibit A, B).
3. The trial was conducted May 14, 1994, and the petitioner testified on his own behalf. After conviction, petitioner was sentenced on May 16, 1994, to ten years imprisonment for the assault conviction and life without parole for the burglary conviction pursuant to Alabama's Habitual Felony Offender Act (Doc. 16, Exhibit D).
4. On direct appeal, appointed counsel filed a brief arguing (1) that the evidence did not establish at trial that defendant was guilty of assault as an aider and abettor, and (2) that defendant was improperly sentenced under the Habitual Felony Offender Act because the State failed to introduce evidence of petitioner's prior convictions after the return of the guilty verdict (Doc. 16, Exhibit A).
5. The Alabama Court of Criminal Appeals rejected both issues in an opinion handed down on January 13, 1995. Briskett v. State, 659 So.2d 1018 (Ala.Cr.App. 1995). The Court affirmed petitioner's conviction and held that the evidence was sufficient to sustain petitioner's conviction of assault, and that the issue concerning introduction of felony convictions for sentencing under the Habitual Felony Offenders Act was not preserved for appeal. Briskett, supra, at 1019, 1020.
6. The Alabama Court of Criminal Appeals denied rehearing on February 10, 1995; the Alabama Supreme Court denied certiorari on April 21, 1995. (Doc. 16, Exhibit H.)
7. Petitioner filed a Rule 32 petition for post-conviction relief on October 30, 1995, which argued the following:
(1) based upon petitioner's notes and recollection, neither the jury panel nor the petit jury were ever sworn (Doc. 16, Exhibit D., Affidavit 1);
(2) the trial court violated Ala.R.Cr.P. 18.4(b) by "failing to initiate an examination of prospective jurors, . . . identifying the parties and their counsel, briefly outlining the nature of the case, and explaining the purposes of the examination"; (Doc. 16, Exhibit D., Addendum);
(3) the trial court violated Ala.R.Cr.P. 19.1 by failing to read the charge to the jury. Id.
(4) the trial court violated Ala.R.Cr.P. 18.5 by failing to give the jury "any preliminary instruction"; Id.
(5) denial of effective assistance of trial counsel (see item 9, infra);
(6) the court was without jurisdiction to render the judgment or to impose sentence because the petit jury was never sworn (Doc. 16, Exhibit D., Addendum).
9. The petitioner's ineffective assistance of trial counsel claim was based on the fact that trial counsel failed to object when evidence of his prior convictions were not introduced at sentencing. Id.
The state first served notice, based on petitioner's four prior felony convictions, of intent to proceed under the Habitual Felony Offender Act on December 13, 1993, some five months before petitioner's trial. Moreover, the defendant admitted to three prior felony convictions in his own testimony at trial. (R. 121-22; Doc. 16, Exhibit B., at 19-20.)
8. On motion by the state, the Circuit Court of Mobile County, Robert E. L. Key, Judge, dismissed the Rule 32 petition on February 23, 1996, finding that Petitioner's grounds were precluded as a matter of law under Ala.R.Cr.P. 32.2(a)(5), which provides that "A petitioner will not be given relief under this rule based upon any ground which could have been but was not raised on appeal, unless the ground for relief arises under Rule 32.1(b)."
9. The Alabama Court of Criminal Appeals affirmed the trial court's denial of the Rule 32 petition in a memorandum opinion issued May 24, 1996. (Doc. 16, Exhibit G.)
10. The petitioner filed an application for rehearing on June 4, 1996, which was denied on July 3, 1996. (Doc. 16, Exhibit I.) A certificate of judgement was issued in petitioner's case on July 22, 1996. Id.
11. The petitioner filed his federal habeas petition on April 7, 1997. The grounds raised in this petitioner are:
(i) The trial court violated Rule 18.4(b), Ala.R.Cr.P., in failing to initiate an examination of prospective jurors, i.e., whose names appear on the "strike lists" complied pursuant to Section (A) of 19.4, by identifying the parties and their counsel, briefly outlining the nature of the case, and explaining the purpose of the examination;
(ii) The trial court violated rule 19.1(b), Ala.R.Cr.P., because the trial court did not read the charge, nor was Petitioner's plea stated;
(iii) The trial court violated Rule 18.5(b) Ala.R.Cr.P., in failing to give the jury any preliminary instructions;
(iv) The trial court was without jurisdiction to render the judgment or to impose the sentence because no preliminary oath was administered to the jurors on voir dire, nor was an oath administered to the petit jury as required by Alabama Code § 12-16-170. (Attachment to petitioner's habeas petition.)
(v) Trial counsel was ineffective in failing to object to the fact that the State never introduced certified copies of Briskett's prior convictions at the sentencing phase;
(vi) Insufficiency of the evidence (Doc. 4, Paragraph 13.C).
12. The State of Alabama first argued that all of petitioner's claims were time barred. (Doc. 16.) However, pursuant to orders by this Court, the respondent addressed the first five issues raised by petitioner in a supplemental answer filed September 25, 1997. (Doc. 20.) The respondent addressed the issue of sufficiency of the evidence in a second supplemental answer filed November 17, 1997. (Doc. 30.)
CONCLUSIONS OF LAW
A. Procedural Default Doctrine .
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, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (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).
The application of the independent and adequate state ground doctrine in the habeas context is grounded in concerns of federalism and comity. Id.
Without the rule, a federal district court would be able to do in habeas what this Court could not do on direct review; habeas would offer state prisoners whose custody was supported by independent and adequate state grounds an end run around the limits of this Court's jurisdiction and a means to undermine the State's interest in enforcing its laws.Id. at 730-731, 111 S.Ct. at 2554.
An additional consideration comes to the fore when the independent and adequate state ground supporting a petitioner's custody is a state procedural default. Id. at 731, 111 S.Ct. at 2554. The Supreme Court has long held
that a state prisoner's federal habeas petition should be dismissed if the prisoner has not exhausted available state remedies as to any of his federal claims. (citations omitted) This exhaustion requirement is also grounded in principles of comity; in a federal system, the States should have the opportunity to address and correct alleged violations of state prisoners' federal rights.
. . .
[A] habeas petitioner who has failed to meet the State's procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance. A habeas petitioner who has defaulted his federal claims in state court meets the technical requirement for exhaustion; there are no state remedies any longer "available" to him. (citations omitted) In the absence of the independent and adequate state ground doctrine in federal habeas, habeas petitioners would be able to avoid the exhaustion requirement by defaulting their federal claims in state court. The independent and adequate state ground doctrine ensures that the States' interest in correcting their own mistakes is respected in all federal habeas cases.Id. at 731, 732, 111 S.Ct. at 2554-2555, 2555.
In the habeas context, federal courts are to "presume that there is no independent and adequate state ground for a state court decision when the decision `fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion.'" Id. at 735, 111 S.Ct. at 2557 (quoting Michigan v. Long, 463 U.S. 1032, 1040-1041, 103 S.Ct. 3469, 3476-3477, 77 L.Ed.2d 1201 (1983)); see Harris v. Reed, 489 U.S. 255, 263, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1989) ("[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."). In all other cases, the presumption is not applicable. See Coleman, 501 U.S. at 739, 111 S.Ct. at 2559. In Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), the Supreme Court held that the Harris v. Reed presumption is inapplicable to a claim that is never presented to the state courts. Id. at 299, 109 S.Ct. at 1069 ("The rule announced in Harris v. Reed assumes that a state court has had the opportunity to address a claim that is later raised in a federal habeas proceeding."). Moreover, the presumption "looks through" unexplained orders to the last reasoned decision. Ylst v. Nunnemaker, 501 U.S. 797, 804, 111 S.Ct. 2590, 2595, 115 L.Ed.2d 706 (1991).
Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground. If an earlier opinion "fairly appear[s] to rest primarily upon federal law," Coleman, [___ U.S., at ___, 111 S.Ct., at 2559], we will presume that no procedural default has been invoked by a subsequent unexplained order that leaves the judgment or its consequences in place. Similarly where . . . the last reasoned opinion on the claim explicitly imposes a procedural default, we will presume that a later decision rejecting the claim did not silently disregard that bar and consider the merits.Ylst, 501 U.S. at 803, 111 S.Ct. at 2594. Also, the presumption may not be applied in cases in which the state court opinion did not, at a minimum, discuss the federal grounds at issue." Tower v. Phillips, 7 F.3d 206, 211 (11th Cir. 1993) (" Coleman and Ylst lead us to conclude that we may not assume that had the state court issued an opinion, it would have ignored its own procedural rules and reached the merits of this case. In fact, the most reasonable assumption is that had the state court ruled, it would have enforced the procedural bar."). Finally, "where a state court has ruled in the alternative, addressing both the independent state procedural ground and the merits of the federal claim, the federal court should apply the state procedural bar and decline to reach the merits of the claim." Alderman v. Zant, supra, 22 F.3d at 1549.
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. (citation omitted). 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." (citation omitted). In addition, constitutionally "[i]neffective assistance of counsel . . . is cause." (citation omitted). Attorney error short of ineffective assistance of counsel, however, does not constitute cause and will not excuse a procedural default. (citation omitted). Once the petitioner has established cause, he must show "`actual prejudice' resulting from the errors of which he complains." (citation omitted).
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. (citation omitted).McCleskey v. Zant, 499 U.S. 467, 493-494, 111 S.Ct. 1454, 1470, 113 L.Ed.2d 517 (1991).
The respondent has argued in the supplemental answer that this Court is procedurally barred from reaching the merits of petitioner's case because "[petitioner] has procedurally defaulted on all the claims contained in federal petition." (Doc. 20, page 10.) The undersigned agrees with the respondent that this Court is procedurally barred from reaching the merits of what has been designated by the undersigned as the first five grounds of the petition on the basis that the trial court and, by adoption of the trial court's opinion, the Alabama Court of Criminal Appeals have specifically determined that these grounds are precluded under Rules 32.2(a)(5) of the Alabama Rules of Criminal Procedure because they could have been, but were not, raised at trial and on direct appeal. (Doc. 16, Exhibits G, D.) As the trial court stated in dismissing the petitioner's Rule 32 petition, "A petitioner will not be given relief under [Rule 32.2(a)(5)] based upon any ground which could have been but was not raised on appeal, unless the ground for relief arises under Rule 32.1(b)." (Doc. 16, Exhibit D.)
See supra, Finding of Fact No. 11.
The petitioner improperly characterized his fourth ground for habeas relief — that the trial court was without jurisdiction because no preliminary oath was administered to prospective jurors on voir dire or at trial — as a jurisdictional complaint under Rule 32.1(b). Such a claim is non-jurisdictional, as the Alabama Court of Criminal Appeals unanimously held in Sumlin v. State, 710 So.2d 941 (Ala.Cr.App. 1998):
Although [the petitioner] couches his argument in jurisdictional terms, this [claim that the jury was never sworn] is actually a nonjurisdictional claim that is procedurally barred because it could not have been, but was not, raised at trial or on appeal. Ala.R.Crim.P. 32.2(a)(3) and (5).Id., at 942. Accordingly, Briskett's fourth ground for habeas relief is procedurally defaulted under Rule 32.2(a)(3) and (5).
In its order dismissing petitioner's Rule 32 petition, the trial court specifically discussed why petitioner's ineffective assistance claim was procedurally barred. The Court summarily concluded that all other claims were procedurally barred under Rule 32.2(a)(5). (Doc. 16, Ex. D.)
The state court determined that the petitioner's first five claims were procedurally barred. Therefore, in order for this Court to reach the merits of any of these grounds of the petition, Briskett must "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 claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750; see Jackson v. Herring, 42 F.3d 1350, 1355 (11th Cir.) (finding procedurally barred an independent ineffective assistance of counsel claim that had not been presented to the state courts because there had been no sufficient showing of cause and prejudice), cert. dismissed sub nom. Jackson v. Jones, 515 U.S. 1189 (1995).
The petitioner has made no argument explaining the cause of the procedural default, nor has he demonstrated actual prejudice resulting from the alleged violation of federal law. Furthermore, the plaintiff has not demonstrated that failure by this court to consider his claims will result in a fundamental miscarriage of justice. Plaintiff's only response to the respondent's supplemental answer alleging procedural default is that "Petitioner raised ground 1 through 5 in the Rule 32 post-conviction proceeding and on appeal therefrom." (Doc. 25.) The petitioner's error, however, is that he failed to raise the five grounds enumerated above at the trial court or on direct appeal. Accordingly, petitioner cannot establish cause for the procedural default of these issues.
B. Sufficiency of the Evidence .
Briskett's only viable habeas corpus claim is his assertion in ground six that the evidence presented by the State at trial was insufficient to support a conviction of assault in the second degree. Petitioner raised this claim on direct appeal and the Alabama Court of Criminal Appeals rejected this claim on the merits. See Briskett v. State, supra, at 1019.
The petitioner did not raise this issue in his Rule 32 petition in state court.
The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) "amended 28 U.S.C. § 2254 by establishing a more deferential standard for federal court review of state court adjudications." Fugate v. Turpin, 8 F. Supp.2d 1383, 1385 (M.D. Ga. 1998). The pertinent provisions of amended § 2254 apply in this action, since it was filed after the effective date of the AEDPA, April 24, 1996. Neelley v. Nagle, 138 F.3d 917, 921-922 (11th Cir. 1998), cert. denied, 480 U.S. 926, 119 S.Ct. 811, 142 L.Ed.2d 671 (1999).
The pertinent portions of amended § 2254 are:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) 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; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
(e)(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.28 U.S.C. § 2254 (West Supp. 1999).
The Supreme Court has recently explained the application of § 2254(d) in Williams v. Taylor, ___ U.S. ___, 120 S.Ct. 1495 (2000). The Court stated that "state-court judgments must be upheld unless, after the closest examination of the state-court judgment, a federal court is firmly convinced that a federal constitutional right has been violated." Williams, at 1511. In applying the Williams standard, the Eleventh Circuit in McIntyre v. Williams, 2000 WL 873301 (11th Cir. 2000) indicate that a writ of habeas corpus should be issued only if "the state court's decision was contrary to, or involved an objectively unreasonable application of, the governing Federal law set forth by Supreme Court cases." McIntyre, at *2.
The Supreme Court case applicable to plaintiff's sufficiency of the evidence claim is Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). In Jackson, the Court held that the crucial question for federal courts reviewing sufficiency of the evidence claims on habeas review is whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id., at 319 (citations omitted).
The Alabama Court of Criminal Appeals reviewed the evidence on direct appeal concerning petitioner's sufficiency of the evidence claim and stated as follows:
The appellant first contends that the trial court erred in denying his motion for a judgment of acquittal on the assault in the second degree charge. More specifically, he contends that there was no evidence presented that he actually took part in the assault or that he aided or abetted in the assault. "In determining whether there is sufficient evidence to support the verdict of the jury and the judgment of the trial court, we must accept as true the evidence introduced by the state, accord the state all legitimate inferences therefrom, and view the evidence in the light most favorable to the prosecution. McMillian v. State, 594 So.2d 1253 (Ala.Cr.App. 1991); Faircloth v. State, 471 So.2d 485 (Ala.Cr.App. 1984), aff'd, 471 So.2d 493 (Ala. 1985); Cumbo v. State, 368 So.2d 871 (Ala.Cr.App. 1978), cert. denied, 368 So.2d 877 (Ala. 1979)." Underwood v. State, 646 So.2d 692, 695 (Ala.Cr.App. 1993).
Section 13A-2-23, Code of Alabama 1975, states:
"A person is legally accountable for the behavior of another constituting a criminal offense if, with the intent to promote or assist the commission of the offense:
"(1) He procures, induces or causes such other person to commit the offense;
or
"(2) He aids or abets such other person in committing the offense; or
"(3) Having a legal duty to prevent the commission of the offense, he fails to make an effort he is legally required to make."
The state presented sufficient evidence for the jury to find the appellant guilty of assault in the second degree as an aider or abettor. The appellant entered the house with the two men who assaulted Mrs. Kennedy. He cooperated with them and gave them orders, including an order to "lock her [Mrs. Kennedy] up." We will not substitute our judgment for that of the jury. Owens v. State, 597 So.2d 734, 737 (Ala.Cr.App. 1992).Briskett, 659 So.2d at 1019.
The facts of this case as set forth by the Alabama Court of Appeals, supra, are presumed to be correct, unless the petitioner rebuts this presumption by clear and convincing evidence. 29 U.S.C. § 2254(e)(1). The petitioner's insufficiency of the evidence claim and supporting evidence, quoted in its entirety, is as follows:
Insufficient evidence regarding assault second degree. The trial court denied the defendant's motion for dismissal of assault, second degree, and refuse to exclude the states evidence [sic], although there has been no showing that petitioner had assaulted anyone.
Doc. 4, ¶ 13(c). Unlike other claims in his petition which are procedurally defaulted, the petitioner offered no affidavits or other evidence to support his claim. Therefore, the facts as delineated by the Alabama Court of Appeals are presumed correct.
Applying the Jackson v. Virginia analysis as required by the Supreme Court under Williams, this Court therefore determines whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson, at 319. Upon review of the facts presented and the law applied, this Court finds no basis to conclude that the state court adjudication was contrary to federal law or that Supreme Court precedent was unreasonably applied. The petitioner's participation in the assault of Mrs. Kennedy, as described by the Court of Appeals, provides more than adequate grounds for a jury to determine that he was guilty beyond a reasonable doubt of aiding and abetting in the assault.
CONCLUSION
The undersigned is of the opinion that petitioner's rights were not violated in this cause and that his request for habeas corpus relief should be denied.