Opinion
CIVIL ACTION 97-0319-BH-S.
August 21, 2000.
Timothy Lewis, Donaldson Correctional Facility., Pro Se.
Hense Reynolds Ellis, II, Esq., Office Of The Attorney General
RECOMMENDATION OF MAGISTRATE JUDGE
Timothy Lewis, a state prisoner currently in the custody of the Respondent, has petitioned this Court for federal habeas corpus relief pursuant to 28 U.S.C. § 2254. Petitioner challenges the validity of his September 26, 1986 conviction by a jury on the charges of robbery, first degree, and assault, second degree, in the Circuit Court of Mobile County, Alabama, for which Petitioner received a sentence of imprisonment for life without parole.
This matter is presently before the Court on Petitioner's petition and briefs, Respondent's answer, and court records and briefs on appeal. The Magistrate Judge has made a careful review of the record and exhibits and finds that there are sufficient facts and information upon which the issues under consideration may be properly resolved. Therefore, no evidentiary hearing is required upon the issues.
FINDINGS OF FACT
Viewing the evidence in the light most favorable to the prosecution,see Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2791-92, 61 L.Ed.2d 560 (1979), the following statement of facts is offered.
On March 7, 1985, Glennon Bosarge, assistant manager of Weichman's All Seasons Restaurant in Mobile, Alabama, while closing the restaurant during the early morning hours of that day, was robbed at gunpoint by two individuals. One of the individuals was armed with a handgun, the other with a shotgun, and both were wearing bags over their heads. During the course of the robbery, Mr. Bosarge was struck on the back of his head by one of the robbers. However, during this assault, the bag on the robber's head fell off, and Mr. Bosarge was able to see the robber's face. At trial, Mr. Bosarge identified Petitioner Timothy Lewis as the individual who robbed and assaulted him. Also, during the trial, Petitioner's co-defendant, Earnest Lee Arrington, testified that he and Petitioner Timothy Lewis robbed the restaurant.
Petitioner was subsequently indicted by the Mobile County grand jury and charged with robbery, first degree, and assault, second degree. Petitioner was arraigned on the indictment and the case was scheduled for trial. On September 26, 1986, following the presentation of evidence, closing arguments, the court's oral charge, and jury deliberation; Petitioner was found guilty of robbery, first degree, and assault, second degree, as charged in the indictment. Following a sentencing hearing, the trial judge sentenced Petitioner, a habitual felony offender, to a term of imprisonment for life without parole.
Following conviction and sentence, Petitioner's appellate counsel filed an Anders brief with the Alabama Court of Criminal Appeals on March 13, 1987. On that same date, a copy of the brief was sent to Petitioner along with a letter explaining counsel's reasons for filing the brief. Also enclosed with the letter to Petitioner was the letter mailed to the Alabama Court of Criminal Appeals stating that "further action on Mr. Lewis' appeal should probably be held in abeyance until such time as he can file his own brief, or [if] deemed appropriate by the Court, additional counsel can be appointed to pursue this matter further." No brief was ever filed by Petitioner, and on June 30, 1987, the Alabama Court of Criminal Appeals affirmed Petitioner's conviction and sentence without opinion. Lewis v. State, 511 So.2d 276 (Ala.Crim.App. 1987) (Table).
On January 19, 1988, Petitioner filed a petition for relief from conviction or sentence pursuant to Temporary Rule 20 of the Alabama Rules of Criminal Procedure. In that petition, Petitioner asserted the following claims for relief: (1) Petitioner's conviction was obtained by racial discrimination in that the prosecutor struck black jurors in violation of Batson v. Kentucky (2) ineffective assistance of appellate counsel in that counsel failed to file a brief on appeal; (3) Petitioner's conviction was obtained through the use of perjured testimony; (4) Petitioner was denied the right to counsel during a lineup identification procedure; and (5) newly discovered evidence consisting of a juror who stated that the only reason she voted to convict Petitioner was that she did not want to hold up the jury (Respondent's Exhibit A, pages 5-11). On January 25, 1988, the State of Alabama filed a response to Petitioner's Rule 20 petition arguing that Petitioner's petition should be dismissed for various reasons including that the claims were precluded pursuant to Rule 20.2 (Id. at 16, 17). Later, Petitioner filed various motions to amend his Rule 20 petition adding the following claims: (6) ineffective assistance of trial counsel in that counsel failed to object to the admission of a shotgun into evidence, failed to object to the district attorney's failure to disclose promises made to a state witness, and failed to object when the state neglected to give notice of Petitioner's prior convictions; (7) Petitioners conviction was invalid because the district attorney failed to disclose to the jury that promises had been made to a state witness in exchange for his testimony; (8) denial of the right to appeal in that Petitioner's appellate counsel failed to file a brief on appeal; (9) the trial court improperly admitted a shotgun into evidence; and (10) newly discovered evidence consisting of a statement of Earnest Arrington recanting his trial testimony and stating that defendant did not commit the crime (Id. at 20-59). The State of Alabama filed a response to Petitioner's amended Rule 20 petition asserting, among other grounds, that the amended claims were precluded pursuant to Rule 20.2 (Id. at 71). By orders dated August 12 and 15, 1988, the trial judge denied Petitioner's motions to amend his Rule 20 petition (Id. at 65, 70). By Order dated August 24, 1988, Circuit Judge Robert Kendall denied Petitioner's Rule 20 petition (Id. at 66, 67), and Petitioner gave notice of appeal (Id. at 72). In its brief on appeal, the state argued that Petitioner's claims were precluded pursuant to Rule 20.2 in that these claims should have been raised by Petitioner on direct appeal. The denial of Petitioner's Rule 20 petition was affirmed without opinion by the Alabama Court of Criminal Appeals on November 10, 1988 (Exhibit C).
On January 12, 1996, Petitioner filed a second petition for relief from conviction or sentence pursuant to Rule 32 of the Alabama Rules of Criminal Procedure (Respondent's Exhibit E, pages 21-41). In his petition, Petitioner asserted that he was entitled to relief on the following grounds: (1) ineffective assistance of counsel, in that (a) counsel failed to object to the state's failure to give notice of Petitioner's prior convictions; (b) counsel was without knowledge of the due process requirement of Rule 26.6(b); (c) counsel failed to move for a sentencing hearing so that he could challenge the validity of Petitioner's prior convictions; (d) counsel failed to investigate the validity of Petitioner's prior convictions; (2) the trial court was without jurisdiction to impose sentence where the state failed to give notice of Petitioner's prior convictions; (3) the sentence imposed was improper and unauthorized by law where Petitioner was not given proper notice of his prior felony convictions; and (4) the prior convictions used to enhance Petitioner's sentence were invalid (Id. at 28-33). On April 11, 1996, the state filed a motion to dismiss Petitioner's Rule 32 petition on the grounds that Petitioner's claims were precluded, that his petition was successive, and that the petition was filed in violation of the statute of limitations contained in Rule 32 (Id. at 42-43). By order dated April 11, 1996, Petitioner's Rule 32 petition was denied by the trial court as being precluded, successive, and barred by the statute of limitations found in Rule 32 (Id. at 44-45). By memorandum opinion dated June 21, 1996, the Alabama Court of Criminal Appeals affirmed the denial of Petitioner's Rule 32 petition on the grounds that the petition was precluded and barred by the statute of limitations (Respondent's Exhibit F).
On May 19, 1997, Petitioner filed the instant habeas corpus petition (Doc. 6) with this Court asserting as grounds for relief the following: (1) denial of the right to appeal in that Petitioner's appellate counsel failed to file a brief on behalf of Petitioner; (2) ineffective assistance of appellate counsel in that counsel failed to file an appellate brief on behalf of Petitioner; (3) Petitioner's sentence violated his right to due process because he was not afforded a sentencing hearing and the state failed to prove the validity of his prior convictions; (4) the convictions used to enhance Petitioner's punishment were invalid; (5) ineffective assistance of counsel during sentencing where counsel failed to object to proper notice of Petitioner's prior convictions, failed to investigate the validity of Petitioner's prior convictions, failed to object to the lack of notice of Petitioner's prior convictions, and failed to request a sentencing hearing; (6) discriminatory selection of the jury in that the prosecution used its strikes to remove black jurors; (7) the prosecution improperly failed to disclose exculpatory evidence as required by Brady (8) conviction obtained through the use of illegal photographs; and (9) denial of the right to counsel during a photo lineup procedure.
On October 26, 1998, Respondent filed an Answer (Doc. 35) asserting that all but one of Petitioner's claims are barred from review in this Court pursuant to procedural default principles. According to Respondent, only Petitioner's claim that he was denied effective assistance of appellate counsel wherein counsel failed to file a brief survives procedural default analysis. However, Respondent contends that this claim is without merit.
By Order dated October 30, 1998 (Doc. 36), Petitioner was advised of Respondent's assertion that all but one of his claims were procedurally defaulted, and Petitioner was afforded the opportunity to respond. Petitioner filed his Response (Doc. 37) on November 5, 1998.
DISCUSSION
As set forth above, Respondent asserts that all but one of the nine claims raised by Petitioner in his habeas corpus petition are procedurally barred from review pursuant to procedural default principles. In order to understand how these principles may apply to Petitioner's habeas claims, it is necessary to track the procedural history of the individual claims.
With regard to Petitioner's claim (1) that he was denied the right to appeal where his appellate counsel failed to file a brief on behalf of Petitioner, the Court notes that Petitioner attempted to assert this claim as a part of a series of motions to amend his Rule 20 petition in state court. However, as set forth above, the trial court denied his motion to amend and apparently Petitioner never appealed the denial of that motion. Therefore, this claim appears to have been abandoned by Petitioner and was never properly presented to the state courts by way of a motion to reconsider or by way of an appeal of the denial of the motion to amend.
Even if Petitioner had properly asserted this claim before the State courts, his claim still fails because the Anders brief filed on his behalf, while minimally sufficient, is nonetheless adequate given this Courts review of the facts and circumstances. See Grubbs v. Singletary, 120 F.3d 1174 (11th Cir. 1997); United States v. Edwards, 822 F.2d 1012 (11th Cir. 1987). Moreover, in the documents sent to Petitioner by his Appellate Counsel, Petitioner was notified of his opportunity to file a brief on his own but failed to do so.
With regard to Petitioner's claim (3) that Petitioner's sentence violated his right to due process because he was not afforded a sentencing hearing and the state failed to prove the validity of his prior convictions, the Court notes that this claim was raised by Petitioner in his Rule 32 petition. As set forth above, both the trial court and the Alabama Court of Criminal Appeals denied Petitioner's Rule 32 petition on the grounds that the petition was precluded and barred by the statute of limitations.
With regard to claim (4) that the prior convictions used to enhance Petitioner's punishment were invalid, the Court notes that this claim was raised by Petitioner in his Rule 32 petition. However, as noted, the Alabama courts denied Petitioner's Rule 32 petitions on the grounds that the petition was precluded and barred by the statute of limitations.
With regard to claim (5) that Petitioner received ineffective assistance of counsel during sentencing where counsel failed to object to proper notice of Petitioner's prior convictions, failed to investigate the validity of Petitioner's prior convictions, failed to object to the lack of notice of Petitioner's prior convictions, and failed to request a sentencing hearing, the Court notes that this claim was raised by Petitioner in his Rule 32 petition. As noted, the Rule 32 petition was denied by the Alabama courts on grounds of preclusion and as violative of the statute of limitations.
With regard to claim (6) that Petitioner was subjected to a discriminatory selection of a jury wherein the prosecution used its strikes to remove black jurors, the Court notes that this claim was raised by Petitioner in his Rule 20 petition. As set forth above, on appeal of the denial of Petitioner's Rule 20 petition, the state argued that this claim was precluded pursuant to Rule 20.2 of the Alabama Rules of Criminal Procedure. Also, as noted, the Alabama Court of Criminal Appeals affirmed the denial of the Rule 20 petition.
Even if this claim were not procedurally barred, Petitioner's allegations as contained in his habeas corpus petition fail to state a claim under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Petitioner merely states that he was denied a fair trial when the Prosecutor used all of his strikes to remove black jurors from Petitioner's jury where Petitioner was charged with a crime against a white person. These allegations are insufficient to make out a prima facie case of purposeful discrimination, for in order to do so, "the Defendant must point to more than the bare fact of the removal of certain venirepersons and the absence of an obvious valid reason for the removal." United States v. Allison, 908 F.2d 1531, 1538 (11th Cir. 1990) (quoting United States v. Young-Bey, 893 F.2d 178, 179 (8th Cir. 1990)). "Numbers alone are not sufficient to establish or negate a prima facie case." Id,. quoting United Statesv. Moore, 895 F.2d 484, 485-86 (8th Cir. 1990). "[T]he Defendant must identify facts and circumstances that support the inference of discrimination, such as a pattern of discriminatory strikes, the prosecutor's statements during voir dire suggesting discriminatory purpose, or the fact that white persons were chosen for the petit jury who seem to have the same qualities as stricken black venirepersons." Young-Bey, 893 F.2d at 180 (citing Batson, 476 U.S. at 96-97, 106 S.Ct. at 1722-23). Accordingly, in the case sub judice, Petitioner's allegations fall short of the requirement to demonstrate to this Court that his claim has any merit,.
With regard to claim (7) that the prosecution improperly failed to disclose exculpatory evidence as required by Brady, the Court notes that this claim was raised during Petitioner's failed attempt to amend his Rule 20 petition. As set forth above, that amendment was denied by the trial court and Petitioner never appealed that denial. Therefore, this claim was never properly presented to the Alabama courts.
Even assuming that this claim has not been procedurally defaulted, the claim is found to be meritless. In the habeas petition, Petitioner asserts that the prosecutor in some way violated the principles of Brady when the prosecutor, at trial, failed to correct the testimony of Petitioner's co-defendant, Earnest Arrington, with respect to promises made to the co- defendant by the prosecution. A review of the trial transcript reveals that the "deal" made with Petitioner's codefendant who testified at trial was thoroughly discussed with the trial judge before trial (see Respondent's Exhibit G, R11-12), and was brought out during the examination and cross-examination of the co-defendant at trial (Id. at R111, R120-21). Prior to trial, during a hearing outside the presence of the jury, the prosecutor stated to the Court that, in exchange for Arrington's testimony, the prosecutor agreed to write a letter to the Parole Board informing the Board that Arrington testified for the State as a State's witness (Id. at R11-12). The prosecutor also stated that Arrington had asked him to "look into the fact that he [had received] two consecutive life sentences that he thought were to be run concurrent" (Id.). According to the prosecutor, Arrington had already been sentenced, and he had informed Arrington that he did not think that he could help him but that he would "look into it" (Id.). During his direct examination, Arrington testified that he had received no promises in exchange for his testimony but that he was told that the prosecutor would write a letter to the Parole Board and tell them that he had testified (Id. at R111). Then, Arrington was cross-examined with regard to the State's offer to help Arrington with his sentence (Id. at R120- 21). While Arrington denied that any promises had been made to him regarding his sentence, he did state that he discussed his sentence with the prosecutor in the courtroom during or before trial (Id. at R121). Thus, the evidence in the light most favorable to the prosecution, reveals that, in exchange for his testimony at trial, Arrington was told that the State would write a letter to the Parole Board on his behalf, and that the State would look into the possibility of having his sentences run concurrent instead of consecutive. With regard to the sentencing issue, the record reveals that the discussion regarding sentencing took place in the courtroom before or during Petitioner's trial. The jury then heard Arrington's testimony and had sufficient information to draw reasonable inferences regarding his credibility. Therefore, Petitioner's claim that he was, in some way, prejudiced by the failure of the State to reveal the deal made with Arrington for his cooperation is without merit.
With regard to claim (8) that Petitioner's conviction was obtained through the use of illegal photographs, a review of the record and exhibits in this action by this Court does not reveal that this claim, as presented in this habeas petition, was ever raised before the state courts. Therefore, Petitioner has never exhausted this claim and has never given the state courts an opportunity to review the claim. The claim is now procedurally barred. Collier v. Jones, 910 F.2d 770, 773 (11th Cir. 1990).
Finally, with regard to claim (9) that Petitioner was denied the right to counsel during a photo lineup procedure, the Court notes that this claim was raised in Petitioner's Rule 20 petition. As set forth above, in its brief following the trial court's denial of the Rule 22 petition, the state argued that this claim was precluded pursuant to Rule 20.2 in that the claim could have been, but was not, raised by Petitioner during his direct appeal. As noted, the denial of this claim was affirmed by the Alabama Court of Criminal Appeals.
Moreover, this claim is obviously without merit. There is no law which supports Petitioner's contention that he was entitled to have an attorney present during the showing of a photo spread to the victim.
Procedural Default
"In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law. . . ." Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991). "[I]f the Petitioner failed to exhaust state remedies and the court to which the Petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred[,]. . . there is a procedural default for purposes of federal habeas. . . ." Id. at 735 n. 1, 111 S.Ct. at 2557 n. 1; see Teague v. Lane, 489 U.S. 288, 297-99, 109 S.Ct. 1060, 1068-69, 103 L.Ed.2d 334 (1989); Chambers v. Thompson, 150 F.3d 1324, 1326 (11th Cir. 1998). Alabama law effectively requires a Petitioner to preserve any federal constitutional error by objection at trial, and to pursue that assertion of error on direct appeal, if the error is capable of being raised at those times. See Ala.R.Crim.P. 32(a)(5) (barring collateral review of issues not so raised); Cain v. State, 712 So.2d 1110, 1112 (Ala.Crim.App. 1997); Horsley v. State, 675 So.2d 908, 909 (Ala.Crim.App. 1996); Brown v. State, 663 So.2d 1028, 1030 (Ala.Crim.App. 1995). Claims that may be raised in direct proceedings and are not raised there are accordingly unexhausted and later procedurally barred from federal habeas corpus review. See Magwood v. Smith, 791 F.2d 1438, 1444 (11th Cir. 1986) (interpreting Alabama procedural rules). In addressing petitions for collateral relief, Alabama courts have consistently deemed issues not raised on appeal to be procedurally defaulted under Ala.R.Crim.P. 32.2(a)(5), which bars relief on grounds that could have been, but were not, raised on appeal. See, e.g., Hays v. State, 599 So.2d 1230, 1237 (Ala.Crim.App. 1992); Thompson v. State, 581 So.2d 1216, 1218-19 (Ala.Crim.App. 1991).With the noted exclusion of Petitioner's habeas claim (2), all of the remaining claims could have been raised by Petitioner on direct appeal, but were not, or were improperly raised through a Rule 32 petition. As discussed above, a defendant who is procedurally barred from raising a federal constitutional claim in state court is also barred from raising the claim in a federal habeas petition unless he can show cause for and actual prejudice for making the default.
As set out above, Petitioner attempted to raise habeas claims (3),(4), and(5) through his Rule 32 petition filed on January 12, 1996. As noted above, on June 21, 1996, the Alabama Court of Criminal Appeals affirmed the denial of Petitioner's Rule 32 petition on the grounds that the petition was precluded and barred by the statute of limitations. A review of the record in this case reveals that the Alabama Court of Criminal Appeals' decision to affirm the denial of Petitioner's Rule 32 petition was based on independent and adequate state procedural rules which are firmly established and regularly followed. Cochran v. Herring, 43 F.3d 1404, 1408 (11th Cir. 1995).
Having first injected the concept of "cause" into the context of habeas corpus litigation in 1977, see Wainwright v. Sykes, 433 U.S. at 87-88, 97 S.Ct. at 2506-07, the Supreme Court has stated generally that "cause" for a procedural default exists if "the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the state's procedural rule." Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986). To establish prejudice, a petitioner must show "not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 1596, 71 L.Ed.2d 816 (1982). "The terms `cause' and `actual prejudice' are not rigid concepts; they take their meaning from the principles of comity and finality.... In appropriate cases those principles must yield to the imperative of correcting a fundamentally unjust incarceration." Engle v. Isaac, 456 U.S. 107, 135, 102 S.Ct. 1558, 1575-76, 71 L.Ed.2d 783 (1982). However, both cause and prejudice must be shown to excuse a procedural default and permit relief on the defaulted claim. Murray v. Carrier, 477 U.S. at 485 86, 106 S.Ct. at 2644. This Court is obligated, however, to consider a procedurally defaulted claim in the absence of cause if a "fundamental miscarriage of justice" has "probably resulted in the conviction of one who is actually innocent." Smith v. Murray, 477 U.S. at 537, 106 S.Ct. at 2668.
By Order dated October 30, 1998 (Doc. 36), Petitioner was afforded the opportunity to demonstrate cause and prejudice for his default. His response (Doc. 37) has been duly considered by this Court.
Given the procedural history of this case, the factors discussed above, and Petitioner's response, this Court finds that Petitioner has failed to demonstrate that "some objective factor external to the defense impeded [Petitioner's] efforts to comply with the state's procedural rule[s]." Murray v. Carrier, 477 U.S. at 488, 106 S.Ct. at 2645. Moreover, Petitioner has failed to show that he is "actually innocent" thereby establishing that a fundamental miscarriage of justice would occur if this Court did not consider these claims. See Murray v. Carrier, 477 U.S. at 496, 106 S.Ct. at 2649 ("[I]n an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default."). The Magistrate Judge is of the opinion that Petitioner has failed to establish cause and prejudice as those terms are defined by law and has failed to establish a showing of fundamental miscarriage of justice. Therefore, these claims are procedurally barred in this Court.
Ineffective Assistance of Appellate Counsel
As asserted by Respondent, this claim was properly raised by Petitioner through his Rule 20 petition since it is not a claim that could have been raised on direct appeal. As set forth above, Petitioner's Rule 20 petition was denied by the trial court and the denial was affirmed, without opinion, by the Alabama Court of Criminal Appeals. Therefore, this claim has been exhausted in the state courts and, as argued by Respondent, is due to be considered on the merits in this federal court.
In Petitioner's habeas petition, Petitioner asserts that his appellate counsel failed to file an appeal brief on behalf of Petitioner and did not submit to the appellate court the required "Anders brief." Essentially, Petitioner argues that the no merit letter was constitutionally defective and deprived Petitioner of his right to appeal.
A review of the record in this case reveals that on March 13, 1987, Petitioner's appellate counsel filed a letter brief with the Alabama Court of Criminal Appeals in which, citing Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), counsel stated that he carefully reviewed the transcript of the evidence in Petitioner's case and concluded that there was no error contained in the record (Exhibit J). Counsel suggested that further action on Petitioner's appeal be held in abeyance until such time as Petitioner could file his own brief or, if deemed appropriate by the court, additional counsel could be appointed to pursue the matter further (Id.). The letter brief also contains a statement of facts which correctly summarizes the significant facts adduced at trial (Id.). Attached to the letter brief submitted to the Alabama Court of Criminal Appeals is a copy of a letter sent to Petitioner by appellate counsel explaining that he had submitted the brief to the Alabama Court of Criminal Appeals after determining that, following a search of the record, he had failed to find any error in the record which would be grounds to have Petitioner's case reversed (Id).
In this Circuit, an ineffective assistance of appellate counsel claim is analyzed under the two-prong test enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Heath v. Jones, 941 F.2d 1126, 1130 (11th Cir. 1991). This test requires a Petitioner to show that (1) appellate counsel's performance was deficient, and (2) the deficient performance prejudiced the defense. InGrubbs v. Singletary, 120 F.3d 1174 (11th Cir. 1997), the Court of Appeals observed that "a number of courts have held that in an Anders context, where appellate counsel must submit a brief advising the court of anything in the record that is arguably meritorious, a defendant need not satisfy the prejudice prong." 120 F.3d at 1177. The Court cited for example Evans v. Clarke, 868 F.2d 267, 268 (8th Cir. 1989), but declined to decide whether this rule has been adopted by the Eleventh Circuit.Id. Instead, the Court found, based on the facts of the case before it, that the petitioner had failed to prove that petitioner's appellate counsel's performance was deficient. Id.
A review of Petitioner's habeas corpus petition in the case sub judice, with respect to his claim of ineffective assistance of appellate counsel, reveals that Petitioner has failed to demonstrate that his counsel's performance was deficient and, assuming that the Eleventh Circuit Court of Appeals may not follow the rule in Evans v. Clarke, this Court finds that Petitioner has failed to demonstrate that he was prejudiced in any way by counsel's alleged deficient performance. While counsel's letter brief is in fact "brief," it does state that he searched the record and found no error worthy of review. Counsel also attached a statement of facts which substantially summarizes the facts proven at trial.
This Court has reviewed the record in this case including the trial transcript and concludes that Petitioner's appellate counsel was correct, there was no reversible error. There is nothing in the record which substantiates or supports Petitioner's claims that he was denied the right to appeal, or that his federal rights were violated by the performance of his trial counsel, by the admission of his prior convictions which were used to enhance his sentence, by any failure to give notice of his prior convictions, by the manner in which his jury was selected, by the substance and presentation of the agreement made between the state and Petitioner's co-defendant who testified, by the photographs introduced into evidence, or by the photo lineup procedures used to identify Petitioner as the robber and assailant. In short, none-of Petitioner's present habeas claims are supported by the evidentiary record before this Court. Therefore, it would have been fruitless for Petitioner's appellate counsel to attempt to raise any of these claims on appeal of his conviction and sentence. Therefore, this Court finds that Petitioner has failed to carry his burden pursuant to Strickland v. Washington in demonstrating that his appellate counsel was ineffective. This claim is without merit.
CONCLUSION
It is the opinion of the Magistrate Judge that Petitioner's rights were not violated in this. cause on the issues raised in his petition for habeas corpus relief, and that such petition should therefore be denied. It is so recommended.
The attached sheet contains important information regarding objections to this Recommendation.