Tharp v. Jones et al (INMATE2)

Filing 20

REPORT AND RECOMMENDATIONS that the petition for habeas corpus relief be DENIED and DISMISSED with prejudice; Objections to R&R due by 10/26/2009. Signed by Honorable Terry F. Moorer on 10/13/09. (djy, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA S O U T H E R N DIVISION _______________________________ E V E S T E R THARP, #196 360 P e t i t io n e r , v. W A R D E N KENNETH JONES, et al., R e s p o n d e n ts . _______________________________ * * * * * 1:07-CV-172-WKW (WO)

R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE I . INTRODUCTION AND PROCEDURAL HISTORY T h is cause is before the court on a 28 U.S.C. § 2254 petition for habeas corpus relief f ile d on February 23, 2007 by Petitioner Evester Tharp. Tharp challenges his conviction for c a p ita l murder1 entered against him by the Circuit Court for Houston County, Alabama, on O c to b e r 19, 2001. The trial court sentenced Tharp to life without the possibility of parole. (D o c . No. 12, Exh. 1.) Tharp filed a direct appeal of his conviction. Tharp maintained on appeal that: (1) the evidence was insufficient to sustain his conviction for capital murder; (2) the trial court e rre d when it denied his motion for change of venue due to pre-trial publicity; and (3) the
1 A jury found Tharp guilty of the murder of Mary Spivey in violation of Ala. Code § 13A-5-40(a)(4). (Doc. No. 12, Exh. 1.)

tria l court erred in denying his motion challenging the composition of the petit jury which f a ile d to represent a fair cross section of the community. The Alabama Court of Criminal A p p e a ls affirmed Tharp's conviction on August 22, 2003 and denied his application for reh ea rin g on September 12, 2003. The Supreme Court of Alabama denied Petitioner's p e titio n for writ of certiorari and issued a certificate of judgment on November 21, 2003. (D o c. No. 12, Exhs. 2-5.) See Tharp v. State, 886 So.2d 179 (Ala.Cr.App. 2003) (table). Tharp filed a Rule 32 petition in the trial court on May 27, 2004 and an amended p e titio n on August 9, 2004. He presented the following claims for relief: 1) appellate counsel f a ile d to present in Tharps's application for rehearing and certiorari petition the issue of the s u f f ic ie n c y of the State's evidence; 2) appellate counsel failed to confer with Tharp regarding w h ic h issues to raise on appeal; 3) trial counsel failed to object to the trial court's instruction o n accomplice liability; and 4) trial counsel failed to object to a stipulation entered into by the parties. On April 22, 2005 the trial court held a hearing on the petition at which Tharp w a s represented by counsel. Following the hearing, the trial court entered an order denying th e post-conviction petition. On appeal the Alabama Court of Criminal Appeals affirmed the lo w e r court's decision and denied Tharp's application for rehearing on May 26, 2006. Tharp v . State, 978 So.2d 73 (Ala.Cr.App.) (table). The Alabama Supreme Court denied his p e titio n for writ of certiorari and issued a certificate of judgment on December 8, 2006. (Doc. N o . 12, Exhs. 6-10.)

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In the instant § 2254 petition Tharp presents the following claims: 1. The trial court erred by allowing the State and defense counsel to stipulate that T h a rp 's co-defendant was the trigger man which relieved the State of its burden of p ro o f and prevented the jury from fully determining Tharp's guilt or innocence; 2 . Trial counsel rendered ineffective assistance by entering into a stipulation with the s ta te which implied that Tharp was a participant in the crime but not the trigger man w h ic h was inapposite to Tharp's defense that he had no knowledge of the offense nor d id he participate in it; 3 . Appellate counsel was ineffective for failing to pursue on rehearing or petition for c e rtio ra ri the appellate court's determination that the evidence was sufficient to s u s ta in Tharp's conviction; 4 . The trial court erred by denying Tharp's motion for acquittal where the evidence w a s insufficient to demonstrate his involvement in the offense; 5 . The trial court denied Tharp a fair trial based on the jury selection process utilized b y the Circuit Court for Houston County which fails to represent a fair cross-section o f the community. (D o c. No. 1 at 6-9.) R esp o n d en ts filed an answer in which they argue that Tharp's claim that the trial court e rre d when it allowed the State and defense counsel to stipulate to the fact that Tharp's cod e f e n d a n t was the triggerman is procedurally defaulted. In support of their procedural default a rg u m e n t, Respondents assert that this claim was not presented to the state courts in a c c o rd a n c e with the state's procedural rules, see O'Sullivan v. Boerckel, 526 U.S. 838 (1 9 9 9 ), and, thus, Tharp is prohibited from presenting it in the instant petition without a s h o w in g of cause and prejudice for the default. See Teague v. Lane, 489 U.S. 288 (1989); H e n d e rs o n v. Campbell, 353 F.3d 880, 891 (11 th Cir. 2003). With respect to the remaining 3

is s u e s, Respondents maintain that Tharp's claims were properly adjudicated on the merits by th e state courts. (Doc. Nos. 11, 14.) See Williams v. Taylor, 529 U.S. 362, 404-05 (2000).

Upon review of the § 2254 petition, the answer and supplemental answer of Respondents, and Tharp's response thereto, the court concludes that no evidentiary hearing is required and that the petition is due to be denied in accordance with the provisions of Rule 8(a), Rules Governing Section 2254 Cases in United States District Courts. II. DISCUSSION A. Actual Innocence - Independent Claim
T o the extent Tharp alleges he is innocent of capital murder, the law is well settled " th a t `[c]laims of actual innocence ... have never been held to state a ground for federal h a b e a s relief absent an independent constitutional violation occurring in the underlying state crim inal proceeding.' Herrera v. Collins, 506 U.S. 390, 400 (1993). It is not our role to make a n independent determination of a petitioner's guilt or innocence based on evidence [ p re se n ted at trial or] that has emerged since the trial. `This rule is grounded in the principle th a t federal habeas courts sit to ensure that individuals are not imprisoned in violation of the C o n stitutio n -n o t to correct errors of fact.' Id." Brownlee v. Haley, 306 F.3d 1043, 1065 (11th C ir.2 0 0 2 ). In accordance with the foregoing directives, Tharp is entitled to no relief from this c o u rt on any independent claim of actual innocence. (See Doc. No. 16.)

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B. The Adjudicated Claims To prevail on his § 2254 claims adjudicated on the merits by the state courts, Tharp must show that a decision by the Alabama state courts was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or was "based on an unreasonable determination of the facts, in light of the evidence presented in the State court proceeding." 28 U.S.C. §2254(d)(1) & (2);2 see Williams, 529 U.S. at 412-13. A state court's decision can be "contrary to" federal law either (1) if it fails to apply the correct controlling authority, or (2) if it applies the controlling authority to a case involving facts "materially indistinguishable" from those in a controlling case, but nonetheless reaches a different result. Id. at 405-06. A state court's decision can involve an "unreasonable application" of federal law if it either (1) correctly identifies the governing rule but then applies it to a new set of facts in a way that is objectively unreasonable, or (2) extends or fails to extend a clearly established legal

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28 U.S.C. § 2254(d) provides that: 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 adjudicated on the merits in State court proceedings unless the adjudication of the claim: (1) resulted in a decision contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court; or (2) resulted in a decision based on an unreasonable determination of the facts, in light of the evidence presented in the State court proceedings.

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principle to a new context in a way that is objectively unreasonable. Id. at 407. "Federal habeas relief is available under the `unreasonable application' standard only if the state court's application of clearly established federal law was `objectively unreasonable.'" Parker v. Head, 244 F.3d 831 (11th Cir. 2001) (citing Williams, 529 U.S. at 409). It is the objective reasonableness, not the correctness per se, of the state court decision that this court must decide. See Williams, 529 U.S. at 411; Brown v. Head, 272 F.3d 1308, 1313 (11th Cir. 2001). Federal district courts are likewise directed to determine whether the state court based its findings on "an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2). A responsible, thoughtful decision that is made after a full opportunity to litigate suffices, "even if it is wrong." Lindh v. Murphy, 96 F.3d 856, 876-77 (7th Cir. 1996), rev'd on other grounds, 521 U.S. 320 (1997). A state court's determinations of fact shall be "presumed to be correct," and
th e habeas petitioner "shall have the burden of rebutting the presumption of correctness by clea r and convincing evidence." 28 U.S.C. § 2254(e)(1). "However, the statutory

p re su m p tio n of correctness applies only to findings of fact made by the state court, not to m ix e d determinations of law and fact." Parker, 244 F.3d at 835 (citing McBride v. Sharpe, 2 5 F.3d 962, 971 (11 th Cir. 1994)). However, even when the state court addresses a question o f law, this court is not authorized "to evaluate [a petitioner's] claim de novo rather than

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th ro u g h the lens of § 2254(d)." Price v. Vincent, 538 U.S. 634, 639 (2003). The Supreme C o u rt admonishes that such evaluation "exceeds the limits imposed on federal habeas review b y 28 U.S.C. § 2254(d). . . " Id. at 636. Additionally, a state court's summary rejection of a federal constitutional issue qualifies as an adjudication on the merits under § 2254(d) so th a t the summary rejection is entitled to the same deference as a written opinion. See Wright v . Sec. of Dept. Of Corr., 278 F.3d 1245, 1254 (11 th Cir. 2002). i. Sufficiency of the Evidence T h a rp argues that the trial court violated his constitutional rights when it denied his m o t io n for judgment of acquittal where the evidence was insufficient to sustain his c o n v ictio n . Tharp argues that the only evidence that connected him to the offense was his " a ss o c ia tio n with the aka triggerman." (Doc. No 1 at 7.) The Due Process Clause of the Fourteenth Amendment prohibits a criminal conviction " e x ce p t upon proof beyond a reasonable doubt of every fact necessary to constitute the c rim e ." In re Winship, 397 U.S. 358, 364 (1970). Under § 2254 , habeas relief on a claim of in s u f f ic ie n t evidence is appropriate only "if it is found that upon the record evidence adduced a t trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." J a c k so n v. Virginia, 443 U.S. 307, 324 (1979); see also Lewis v. Jeffers, 497 U.S. 764, 781 (19 9 0 ). B u t this inquiry does not require a court to "ask itself whether it b e lie v e s that the evidence at the trial established guilt beyond a 7

rea so n ab le doubt." ... [I]nstead, the relevant question is whether, a f te r viewing the evidence in the light most favorable to the p ro s e c u tio n , any rational trier of fact could have found the e ss e n tial elements of the crime beyond a reasonable doubt. J a c k s o n , 443 U.S. at 318-319. To be sufficient, the "evidence need not exclude every re a so n a b le hypothesis of innocence or be wholly inconsistent with every conclusion except th a t of guilt." United States v. Harrell, 737 F.2d 971, 979 (11 th Cir.1984). Sufficiency c la im s are judged by the elements defined by state law. Jackson, 443 U.S. at 324 n.16. T h a rp raised his challenge to the sufficiency of the evidence on direct appeal. The A la b a m a Court of Criminal Appeals reviewed the evidence in the record and determined that th e evidence presented by the State showed the following: T h e victim, Mary Spivey, owned and operated the Seven Day Food Mart, near H ig h w a y 52, in rural Houston County. She lived in five rooms connected to th e store. The victim drove a green minivan which she kept parked in her front ya r d . A state's witness, Deborah Hackett, worked for the victim as her assistant m a n a g er. She testified that around noon, on June 23, 1997, she observed S h a b e r Wimberly in the store with several other black males. She knew W im b e rly because he had been in the store before. At approximately 7:00 PM th a t evening, Hackett closed out the register, and put all of her cash, which was a p p ro x im a te ly $1,000, into a paper sack, took it into the victim's living q u a rte rs , and placed it on a desk. She testified that when she left for the e v e n in g , the victim's green minivan was parked in the front yard. The State presented evidence that approximately 8:00 PM on June 23, 1997, the appellant and Shaber Wimberly left Wimberly's house in Frank Coleman's P o n tia c because Wimberly's Buick Regal was low on gas. After running the [ P ]o n tia c into a ditch, Wimberly called a friend, Ansell Dawsey, to come and g et them. Dawsey set out to pick them up, but ran out of gas in Wimberly's v e h ic le . The State presented evidence tending to show that Wimberly and the a p p e lla n t, having already committed the burglary/ murder, had to return to the c rim e scene and take the victim's minivan for transportation. Evidence was 8

p re se n te d that they did not return to Wimberly's residence until 3:00AM the f o llo w in g morning. At approximately 2:45 AM on June 24, the victim's green m in iv a n was found burning on Jessie Road, off Highway 52. Upon checking th e car registration, it was determined that the vehicle belonged to the victim. D e p u ty Gary Lindsey, of the Houston County Sheriff's Department, went to th e victim's residence, and found her dead on the floor. She had been shot o n c e in the left eye. Her living quarters had been ransacked, and her money a n d the cash register had been taken from the store. T h e State presented the testimony of Ansell Dawsey, who testified that after m id n ig h t on June 23, 1997, he was visiting Melitta Wimberly, at Shaber W im b e rly's house. He testified that Wimberly and the appellant drove up in a green minivan and asked Dawsey to follow them. With Dawsey following th e m , Wimberly and the appellant drove out to a dirt road, stopped the m in iv a n , removed a number of items from it, and loaded the goods into the tru n k . Dawsey testified that some of the items included a cash register, some c ig a re tte s , and a brown paper sack. Jesse Carroll testified that at around 1:00 AM on June 24, 1997, Shaber W im b e rly waked him and his wife, Mary, and asked them if he could borrow a chain to pull a car from a ditch. He testified that Wimberly was in a green m in iv a n and the appellant was with him. He testified that Wimberly was c a rryin g a "large wad" of money. J a m e s Pruitt testified that shortly after 1:00 AM, Wimberly and the appellant c a m e to his house and asked him to help them take a green minivan "back to [ W im b e rly's ] aunt's house." He testified that Wimberly proceeded to drive th e vehicle out to Jessie Road, with Pruitt following him in the car. On the w a y, Wimberly and Pruitt were stopped by Deputy Jeff Carlisle, when he o b se rv e d the minivan lose a hubcap. Pruitt testified that he knew Deputy C a rlis le , and when he vouched for Wimberly, Deputy Carlisle told them to go h o m e , and answered another call. Wimberly and the appellant drove away, and s t o p p e d just a few yards away to set the van on fire. Pruitt testified that W im b e rly and the appellant then got in the car with him, and that the appellant h a d a gun in his possession. Wimberly asked Pruitt to take them to the lo c a tio n where they had "ditched" Frank Coleman's Pontiac. Pruitt helped th e m rig Jesse Carroll's chain to the Pontiac, and they pulled it out of the ditch. S h a b e r Wimberly then jumped in the Pontiac and drove off, leaving the a p p e llan t and Pruitt on the side of the road. Pruitt then took the appellant to W im b e rly's house. While there, both Pruitt and Dawsey saw Wimberly, the 9

a p p e lla n t, and Frank Coleman, burning something in a barrel. Later, the a p p e llan t took a cash register out of the trunk of Wimberly's car and threw it o n the ground, causing it to break open. The State presented evidence that the following day, Dawsey was paged by M e litta Wimberly to come over and help her dispose of a gun. Melitta W im b e rly retrieved a gun from the attic of the house. Dawsey took the gun, w ra p p e d it in a towel, and buried it at the end of the street. The gun was re trie v e d , tested, and determined to be the murder weapon. Evidence was presented that Deputy Carlisle's encounter with Wimberly and th e appellant in the minivan, and the fact that he knew James Pruitt, ultimately led to the appellant's arrest. H e re , the jury could conclude from the State's evidence that the gun used to k ill the victim was transported throughout the night by the appellant. A s s u m in g arguendo, that the appellant did not enter the victim's residence, as h e contends, the State still presented overwhelming evidence of the a p p e lla n t 's guilt based on an accomplice liability theory. § 13A-2-23, Ala. C o d e 1975. See Wilson v. State, 777 So. 2d 856, 932 (Ala. Crim. App. 1999) (" `Actual participation in the crime need not be proved by positive testimony to convict someone of aiding and abetting. "The jury is to determine whether th e appellant's participation exists and the extent of it from the conduct of the p a rtie s and all the testimony presented." ' ") Moreover, "[e]vidence of intent is hardly ever capable of direct proof. Such questions are normally questions fo r the jury." McMurphy v. State, 455 So. 2d 924 (Ala. Crim. App. 1984). T h e State presented sufficient circumstantial evidence linking the appellant to the murder/burglary. Because the appellant and Wimberly left Wimberly's h o u s e together, remained together throughout the night, were seen driving the v ictim 's minivan, setting it on fire, and later vandalizing its contents, the jury h a d ample evidence from which it could reasonably infer that appellant was an a c tiv e participant in the crime.

(D o c. No. 12, Exh. 4 at pgs. 1-4.) The state court rejected Tharp's challenge to the sufficiency of the evidence used to c o n v ic t him. This court must, therefore, deny habeas relief unless one of the two exceptions

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f o u n d in § 2254(d) applies. See Mobley v. Head, 267 F.3d 1312, 1316 (11 th Cir. 2001). H aving independently reviewed the record, the arguments presented by the parties, applicable s ta tu te s, and controlling case law, the undersigned finds that Tharp has not met his burden in this regard. That is, the Alabama Court of Criminal Appeals did not decide Tharp's

challenge to the sufficiency of the evidence "differently than [the Supreme] Court has [in a case based] on a set a of materially indistinguishable facts" nor did the state courts apply a rule that contradicts governing federal law. Williams, 529 U.S. at 413. Consequently, the state appellate court's rejection of the sufficiency claim was not contrary to actual Supreme Court decisions. Further, a thorough review of the evidentiary materials submitted in this case establishes that the state court's rejection of Tharp's argument was objectively reasonable and likewise constituted a reasonable determination of the facts in light of the evidence presented by the parties. (See Doc. No. 12, Exh. 1.) Tharp is, therefore, not
e n title d to habeas relief on his sufficiency of the evidence claim. ii. Ineffective Assistance of Counsel T o show a violation of his constitutional right to counsel, Tharp must demonstrate b o th that counsel's performance fell below an objective and reasonable professional norm a n d that he was prejudiced by this inadequacy. Strickland v. Washington, 466 U.S. 668, 686 (1 9 8 4 ); Williams, 529 U.S. at 390. "The same standard applies whether [a court is] e x a m in in g the performance of counsel at the trial or appellate level." Eagle v. Linahan, 279 F .3 d 926, 938 (11 th Cir. 2001) (citing Matire v. Wainwright, 811 F.2d 1430, 1435 (11 th Cir. 1 9 8 7 )); Shere v. Sec. Dept. of Corrections, ___ F.3d ___, 2008 WL 3066738 *5 (11 th Cir.

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2 0 0 8 ) (to establish appellate counsel's ineffectiveness a petitioner must show deficient p e rf o rm a n c e and, but for appellate counsel's deficient performance, petitioner would have p re v a ile d on appeal). In applying Strickland, the court may dispose of an ineffective a s s is ta n c e claim if Tharp fails to carry his burden on either of the two prongs. Strickland, 466 U .S . at 697. In assessing the performance of counsel, "a court must indulge a strong presumption t h a t counsel's conduct falls "within the wide range of reasonable professional assistance; th a t is, [Tharp] must overcome the presumption that, under the circumstances, the challenged a c tio n `might be considered sound trial strategy.' " Strickland, 466 U.S. at 689 (citation o m itte d ); see also Dingle v. Secretary for Dept. of Corrections, 480 F.3d 1092, 1099 (11 th C ir. 2007). Counsel's conduct must be evaluated from the perspective at the time the

re le v a n t decision was made and without the distortion of hindsight. Strickland, 466 U.S. at 6 8 9 . See Lancaster v. Newsome, 880 F.2d 362, 375 (11 th Cir. 1989) (emphasizing that p etitio n er was "not entitled to error-free representation"). W ith regard to the prejudice requirement, Tharp must establish that, but for counsel's d e f ic ie n t performance, the outcome of the proceeding would have been different. Strickland, 4 6 6 U.S. at 694. Focusing solely on "outcome determination," however, is insufficient; "[t]o s e t aside a conviction or sentence solely because the outcome would have been different but f o r counsel's error may grant the defendant a windfall to which the law does not entitle him." L o c k h a rt v. Fretwell, 506 U.S. 364, 369-70 (1993). Tharp, therefore, must establish "that c o u n s e l's errors were so serious as to deprive [him] of a fair trial, a trial whose result is

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re lia b le ." Id. at 369 (quoting Strickland, 466 U.S. at 687). "Even if counsel's decision a p p e ars to have been unwise in retrospect, the decision will be held to have been ineffective a ss is ta n c e only if it was `so patently unreasonable that no competent attorney would have c h o se n it.' " Dingle, 480 F.3d at 1099 (quoting Adams v. Wainwright, 709 F.2d 1443, 1445 (11 th Cir. 1983)). T h a rp complains that trial counsel performed deficiently by entering into a stipulation w ith the State that Tharp's co-defendant was the actual triggerman. Tharp complains that su ch action amounted to assisting the prosecution in its case because it implied that Tharp w a s involved in the crime albeit he was not the individual who actually shot the victim. T h a r p asserts that counsel's conduct "went against" his defense that he had no knowledge o f the crime nor did he participate in it.

The Alabama Court of Criminal Appeals addressed this challenge to trial counsel's conduct on Tharp's appeal from the denial of his Rule 32 petition. The relevant portion of this opinion reads as follows: Tharp testified that trial counsel was ineffective for allowing a stipulation that conceded that it was Tharp's codefendant, Shaber Chamond Wimberly, who fired the fatal gunshot into the victim and not Tharp. Tharp asserted that the State should have had to prove the facts of the case. The circuit court interrupted and the following transpired.

"THE COURT: Let me interrupt you just a minute, Mr. Lamere [(defense attorney)]. Do you understand that probably saved your life? "THE WITNESS (Tharp): I understand that, too, Judge.

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"THE COURT: Okay."

(R. 8-9.) .... After the hearing, the circuit court issued the following order denying relief to Tharp: "The matter before the Court is Evester Tharp's petition for Rule 32 relief. An evidentiary hearing was conducted April 22, 2005. The Defendant was represented through appointed counsel, Mr. Matt Lamere. The State was represented through its assistant district attorney, Mr. David Atwell. Petitioner alleges that trial counsel was ineffective in that the attorney failed to object to a joint stipulation of fact that codefendant Wimberly fired the murder weapon instead of Petitioner Tharp. This allegation of ineffectiveness is preposterous. This Court tried both capital cases. The Petitioner in the present case was sentenced to life in prison without the possibility of parole. The co-defendant Wimberly was sentenced to death. Having actually presided over the trial, this Court is of the opinion that this joint stipulation was instrumental in the jury's recommendation of life without parole and the Court's sentence. Citing to Strickland v. Washington, 466 U.S. 688, the trial court concluded that Petitioner failed to meet the first prong of the Strickland standard with regard to his challenge to counsel's performance. The Alabama Court of Criminal Appeals affirmed the lower court's decision concluding that the trial court's reasons for rejecting Tharp's claim of ineffective trial counsel were supported by the record. (Doc. No. 12, Exh. 9 at pgs. 2-6; see also Doc. No. 1 at TR. 797-822.)

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In order for Tharp to obtain relief on his ineffective assistance of trial counsel claim,
th is court must find that the state court's dismissal of his claim involved an unreasonable a p p lic a tio n of Strickland. As noted, under Strickland, the standard by which the state court w a s required to review Tharp's claim is a two-prong test in which Tharp must prove both in e f f e c tiv e assistance (incompetence) and prejudice. Kimmelman v. Morrison, 477 U.S. 365, 3 8 1 (1986). In order to grant relief, therefore, the state court had to find that Tharp's trial a tto rn e y's performance fell below the range of competence demanded of lawyers in criminal c a se s, and that there was a reasonable probability that, but for counsel's deficient p e rf o rm a n c e , the outcome of the trial would have been different. Strickland, 466 U.S. at 690, 694. W ith respect to Strickland's first prong - counsel's performance - the record indicates th a t trial counsel performed adequately. The record reflects that Tharp's trial counsel, as a m a tte r of strategy, made a decision to enter into the challenged stipulation in order to, as the tria l court put it, "save[] [Tharp's] life." (Doc. No. 1, TR. at 797-822.) In reviewing Tharp's

ineffectiveness claims under the Strickland standard, the state courts did not decide his claim of ineffective assistance of counsel "differently than [the Supreme] Court has [in a case based] on a set a of materially indistinguishable facts" nor did the state courts apply a rule that contradicts governing federal law. Williams, 362 U.S. at 412. Consequently, the state appellate court's rejection of the ineffective assistance of counsel claim was not contrary to actual Supreme Court decisions. Additionally, based on the record before it, this

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c o u rt cannot say that counsel's strategic decision to enter into the stipulation with the State w a s unreasonable. Accordingly, the state court's rejection of Petitioner's ineffective a s s is ta n c e of trial counsel claim was objectively reasonable. See Williams v. Taylor, supra. T h is decision was likewise a reasonable determination of the facts in light of the evidence p re se n te d . 28 U.S.C. § 2254(d)(2). Consequently, Tharp is not entitled to habeas relief on th is challenge to trial counsel's performance. T h arp also challenges the performance of his appellate counsel. Specifically, Tharp a rg u e s that appellate counsel failed to pursue review to the Alabama Supreme Court with re g a rd to the Alabama Court of Criminal Appeals' "misapplication" of federal law where it a ss u m e d a material fact in reaching its determination that the evidence was sufficient to s u p p o rt the jury's guilty verdict. The record in this matter reflects that the state courts adjudicated Tharp's challenge to his appellate counsel's performance. The Court of Criminal Appeals' decision affirming th e trial court's denial of Tharp's post-conviction petition noted that appellate counsel te stif ie d at Tharp's Rule 32 hearing. Appellate counsel testified that while he had never sp o k e n with Tharp directly concerning his appeal, they had corresponded by mail. Appellate c o u n s e l further testified that he filed a petition for writ of certiorari with the Alabama S u p r e m e Court which listed only one ground for review and that issued concerned selection o f the jury panel. Appellate counsel indicated that he did not pursue certiorari review

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re g a rd in g the sufficiency of the evidence claim because he found no basis under the ap p lica b le rules to pursue the claim further.3 (Doc. No. 12, Exh. 9 at pgs. 2-6.) T h e Alabama Court of Criminal Appeals rejected Tharp's challenge to appellate c o u n se l's performance concluding that the trial court's reasons for rejecting the claim was s u p p o rte d by the record.4 The appellate court further held that because Tharp was not entitled

The court notes that Respondents argue that Petitioner exhausted his sufficiency of the evidence claim which he presented on direct appeal. (Doc. No. 11 at pg. 5.) Respondents, therefore, have waived any requirement of exhaustion or claim of procedural default as to this issue inasmuch as the evidence before the court indicates that appellate counsel did not pursue the sufficiency of the evidence claim in his application for rehearing or in the petition for writ of certiorari which was required to properly exhaust this claim in the state courts. Will v. Secretary for Dept. of Corr., 2008 WL 2067452 n. 4 (11th Cir. 2008); see also Williams, 529 U.S. 362. To the extent the court has the discretionary authority to sua sponte raise the exhaustion requirement, see e.g., Day v. McDonough, 547 U.S. 198 (2006), the court finds no reason to do so in this case and has, accordingly, addressed the merits of the issue.
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In its order denying Tharp's Rule 32 petition, the trial court found: "Petitioner Tharp also alleges that appellate counsel Mr. Charles Decker was ineffective in his representation of the Petitioner on appeal. However, Petitioner testified that appellate counsel Decker did a fine job in the original appeal to the Court of Criminal Appeals. His main complaints were that Mr. Decker should have argued that the evidence was not sufficient to convict; that the evidence was circumstantial; and that Mr. Decker did not correspond with him. Mr. Decker testified that he made application for certiorari to the Alabama Supreme Court but was denied. He further testified that he notified Petitioner of the same. "A review of Mr. Decker's brief to the Alabama Court of Criminal Appeals presents five issues for review. The first two issues set out in the brief are as follows: (1) Whether there was sufficient evidence to support the conviction of capital murder; and (2) Whether the circumstantial evidence was sufficient to justify a verdict of guilt in this capital murder case. Therefore, Mr. Decker did present these issues on appeal contrary to Petitioner's allegations. . . . "The standard to be applied in a Rule 32 petition is set out in Strickland v.

(continued...) 17

t o counsel on discretionary review, he could not prevail on his challenges to appellate c o u n se l's performance regarding the filing of an application for rehearing and petition for w rit of certiorari. Specifically, the appellate court held: " [ A ] rehearing is a discretionary review; thus, there is not right to counsel on application for rehearing. Kinsey [v. State, 545 S. 2 d [200,] at 205 [(Ala. Cr. App. 1989)] quoting Wainwright v. T o r n a , 455 U.S. 586, 71 L.Ed.2d 475, 102 S. Ct. 1300 (1982). W h e r e there is no right to counsel, there can be no claim of in ef fe ctiv e assistance. Patty v. State, 652 So. 2d 337 (Ala. Cr. A p p . 1994)."

Elliot v. State, 768 S. 2d 422, 424 (Ala. Cr. App. 1999). Because Tharp was n o t entitled to counsel on rehearing, Tharp cannot prevail on his claim that c o u n se l was ineffective regarding the application for rehearing. A d d i t i o n a l l y, " `The right to effective assistance of counsel is dependent on th e right to counsel itself.' Evitts v. Lucey, 469 U.S. 387, 369 n .7 , 105 S.Ct. 830, 836 n.7, 83 L.Ed.2d 821 (1985). There is no c o n stitu tio n a l right to counsel on a discretionary appeal to the s ta t e supreme court. Ross v. Moffitt, 417 U.S. 600, 610, 94 S .C t. 2437, 41 L.Ed.2d 341 (1974); Wainwright v. Torna, 455 U .S . 586, 587, 102 S. Ct. 1300, 1301, 71 L.Ed.2d 475 (1982). `R e v ie w by certiorari is entirely discretionary with our Supreme C o u rt (except in [cases in which the death penalty has been im p o s e d ]). See A.RA.P. Rule 39.' Kinsey v. State, 545 So. 2d 2 0 0 , 203 (Ala. Cr. App. 1989)."

4

(...continued)
Washington, 466 U.S. 688, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984). The Petitioner in this case has failed to produce any evidence to indicate that the attorney's performance was deficient. Therefore, the Petitioner cannot even meet the first prong of the Strickland test." (Doc. No. 12, Exh. 9 at pg. 4.)

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J a c k s o n v. State, 612 So. 2d 1356, 1357 (Ala. Crim. App. 1992). Because T h a rp was not entitled to counsel for certiorari review, Tharp cannot prevail o n his claim that counsel was ineffective regarding the petition for writ of c e rtio ra ri. (D o c . No. 12, Exh. 9 at pgs. 5.) The State of Alabama authorizes appointment of counsel for a convicted defendant w h o files a first appeal as of right following his conviction. See Johnson v. State, 584 So.2d 8 8 1 , 883 (Ala. Crim. App. 1991). In affirming the denial of Tharp's post-conviction petition, th e Court of Criminal Appeals correctly held that this right to appointed counsel is not further e x te n d e d for a defendant who seeks either discretionary review in the Supreme Court of A la b a m a or a writ of certiorari in the United States Supreme Court. Ross, 417 U.S. at 6101 2 , 615-18; Wainwright, 455 U.S. at 587 ("a criminal defendant does not have a c o n stitu tio n a l right to counsel to pursue discretionary state appeals or application for review in the [United States Supreme] Court." Because Tharp's challenge to appellate counsel's c o n d u c t provides no basis for federal habeas corpus relief as no question of a constitutional n a tu re is involved, the claim is due to be dismissed. iii. The Jury Selection Claim T h a rp complains that trial court violated his right to a fair trial under the Sixth A m e n d m e n t due to the manner in which juries are selected in the Circuit Court for Houston C o u n ty. Specifically, Tharp argues that potential jurors are chosen from citizens who either

19

p o s s e ss a driver's license or a non-drivers-license identification card and this method of c h o o sin g jurors excludes persons who have neither due to "social reasons of poverty." Tharp presented this challenge on appeal of his conviction. The Alabama Court of C rim in a l Appeals addressed Tharp's contention that the trial court erred in denying his m o tio n challenging the composition of his petit jury which he claimed is derived from a " c o m b in a tio n of county residents who hold driver's licenses, and a list of residents who hold id e n tif ic a tio n cards other than driver's licenses, [and] improperly excludes those persons who m a y be too poor to afford the $20 cost of a non-driver-license identification card." (Doc. No. 1 2 , Exh. 4 at pg. 5.) The appellate court held: T h e Sixth Amendment requires that petit juries be drawn from a source fairly re p re se n ta tiv e of the community. See Acklin v. State, 790 So. 2d 975, 985 (A la. Crim. App. 2000). "When the raising of a claim under this requirement, a defendant has the burden of establishing a prima facie case of a `fair cross s e c tio n ' violation." Acklin, supra at 985, quoting Sistrunk v. State, 630 So. 2d 1 4 7 , 149 (Ala. Crim. App. 1993). In Alabama, "[r]andom selection from a list o f licensed drivers has been held to be an acceptable manner in which to select a jury." Acklin v. State, supra at 985. Additionally, § 12-16-55, Ala. Code 1 9 7 5 provides, that ". ..all qualified citizens (shall) have the opportunity, in a c co rd a n c e with this article, to be considered for jury service." Possession of a drivers license, or identification card, is a reasonable criterion under state law f o r the qualification of a person for jury service. (D o c . No. 12, Exh. 4 at pg. 5.)

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T h e Supreme Court has held that a criminal defendant has a Sixth Amendment5 right to have the jury pool from which grand and petit juries are selected represent a "fair crosss e c tio n " of the community. Taylor v. Louisiana, 419 U.S. 522, 527-531 (1975). To establish a prima facie case of a violation of this requirement of the Sixth Amendment, a petitioner m u s t show that: (1) the group alleged to be excluded is a distinctive group in the community; (2 ) the representation of this group in venires from which juries are selected is not fair and rea so n ab le in relation to the number of persons in the community; and (3) this underre p re s e n ta tio n is due to systematic exclusion of the group in the jury selection process. Duren v . Missouri, 439 U.S. 357, 364 (1979). Failure to establish any one of these elements is fatal to the claim. United States v. Pepe, 747 F.2d 632, 648 (11 th Cir. 1984). However, the Taylor C o u rt clarified that there is no constitutional requirement that petit juries actually chosen m u s t mirror the community and reflect the various distinctive groups in the population. 419 U .S . at 538. T h a rp 's challenge to the jury selection process is unavailing as he has presented no e v id e n c e , just speculation, that under-representation in his case was due to the systematic e x c lu s io n of "impoverished" persons, nor has Tharp produced evidence that impoverished p e rso n s are a cognizable class. Tharp has also failed to produce any statistical evidence to e sta b lis h that the representation of persons considered to be living below the poverty line was

5

Const. Amend. VI states in relevant part, "[i]n all criminal prosecutions, the accused shall enjoy the right to a ... trial ... by an impartial jury of the State and district wherein the crime shall have been committed"

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n o t fair and reasonable or that this group of persons was under-represented to an u n co n stitutio n al degree for a significant period of time. Accordingly, the court concludes that

the state court's determination that Petitioner failed to demonstrate trial court error in denying his motion challenging the composition of this petit jury is neither "contrary to" nor an "unreasonable application" of clearly established federal law as determined by the Supreme Court of the United States. Williams v. Taylor, supra. Accordingly, Petitioner is due no relief on his Sixth Amendment challenge. C. Procedural Default
R e sp o n d e n ts assert that Petitioner has procedurally defaulted his claim that the trial c o u rt erred when it allowed the State and trial counsel to enter into a stipulation that his cod e f en d a n t, Shaber Wimberly, was the "triggerman." The procedural default doctrine ensures th a t "state courts have had the first opportunity to hear the claim sought to be vindicated in a federal habeas proceeding." Picard v. Connor, 404 U.S. 270, 276 (1971). Thus, claims w h ic h have never been presented to a state court or claims which were not exhausted p ro p e rly in the state courts are procedurally defaulted if presentation of the claims in state c o u rt would be barred by state procedural rules. Gray v. Netherland, 518 U.S. 152, 161-162 (1 9 9 6 ) (where state-court remedies are no longer available because petitioner failed to file a direct appeal or initiate timely state post-conviction action, petitioner has procedurally d e f au lte d on his claims and is generally barred from asserting claims in a federal habeas p ro c e e d in g ); Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991) (citations omitted) ("[I]f

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th e petitioner failed to exhaust state remedies and the court to which the petitioner would be re q u ire d to present his claims in order to meet the exhaustion requirement would now find th e claims procedurally barred[,] ... there is a procedural default for purposes of federal h a b e a s." ); Henderson v. Campbell, 353 F.3d 880, 891 (11 th Cir. 2003) (when petitioner fails to properly exhaust claims in state court and is barred from raising claims in state court by a p p lic a b l e procedural rules, such claims are procedurally defaulted). In the instant action, P e titio n e r's challenges to his convictions are defaulted due to his failure to present his claims in accordance with the state's procedural rules. T h is court may reach the merits of Petitioner's procedurally defaulted claim "only in tw o narrow circumstances. First, a petitioner may obtain federal review of a procedurally d e f au lte d claim if he can show both `cause' for the default and actual `prejudice' resulting f ro m the default. See Murray v. Carrier, 477 U.S. 478, 485, 106 S.Ct. 2639, 2644, 91 L .E d .2 d 397 (1986); [Wainwright v.] Sykes, 433 U.S. [72,] 87 [(1977)]. . . . Second, a f e d e ra l court may also grant a habeas petition on a procedurally defaulted claim, without a s h o w in g of cause or prejudice, to correct a fundamental miscarriage of justice. Murray, 477 U .S . at 495-96, 106 S.Ct. at 2678. A `fundamental miscarriage of justice' occurs in an e x tra o rd in a ry case, where a constitutional violation has resulted in the conviction of someone w h o is actually innocent. Id." Henderson, 353 F.3d at 892. i. Cause and Prejudice " T o establish `cause' for procedural default, a petitioner must demonstrate that s o m e objective factor external to the defense impeded the effort to raise the 23

c la im properly in the state court." Wright v. Hopper, 169 F.3d 695, 703 (11 th C ir.1 9 9 9 ). To establish "prejudice," a petitioner must show that there is at le a st a reasonable probability that the result of the proceeding would have been d if f e re n t. Id.; Crawford v. Head, 311 F.3d 1288, 1327-28 (11 th Cir.2002). H e n d e rs o n , 353 F.3d at 892. The court afforded Petitioner an opportunity to demonstrate the existence of cause for h is failure to raise his defaulted claim in the state courts properly and prejudice resulting f ro m this failure. In his response, Tharp simply asserts that his claim of trial court error in a llo w in g the parties to enter into a stipulation is not procedurally defaulted and "bears" on h is allegation of actual innocence. (Doc. No. 16 at pg. 7.) Tharp has not established the existence of any "objective factor external to the d e f e n se that prevented [him] from raising the claim and which cannot be fairly attributable to his own conduct." Murray, 477 U.S. at 488. Tharp has, therefore, failed to demonstrate c a u se for his failure to present his claim of trial court error to the state courts in compliance w ith applicable procedural rules. Furthermore, Tharp has not shown the existence of actual p re ju d ic e emanating from infringement of federal law. Nevertheless, this court may still re a ch the merits of Tharp's procedurally defaulted claim in order to prevent a fundamental m is c a rria g e of justice.6 ii. Fundamental Miscarriage of Justice

6 Even if the claim was not defaulted, based on the court's disposition of Tharp's claim regarding trial counsel's performance, the issue concerning the trial court's conduct in allowing the challenged stipulation appears equally without merit. See Estelle v. McGuire, 502 U.S. 62 (1991); Osborne v. Wainwright, 720 F.2d 1237, 1238 (11th Cir. 1983).

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T h a rp maintains that he is not guilty of capital murder. In support of this contention, T h a rp argues that nothing puts him at the scene of the crime except the unreliable testimony o f State witness, James Pruitt, that he "just happened to be in association with `Wimberly' o n the day of the event," that being friends with Wimberly did not establish the necessary in te n t to commit murder, and that he simply helped Wimberly remove a car from a ditch and b u s t a cash register that Wimberly removed from the victim's store (Doc No. 16 at pgs. 2, 3 , 8.) The miscarriage of justice standard is directly linked to innocence. Schlup v. Delo, 5 1 3 U.S. 298, 321 (1995). Although an actual innocence claim "can itself be defaulted is not to say that the procedural default may not itself be excused if the petitioner can satisfy the c a u se -a n d -p re ju d ic e standard [or fundamental miscarriage of justice exception] with respect to that claim." Edwards, 529 U.S. at 453 (emphasis in original). Innocence is not an

ind ep en d en t claim; instead, it is the "gateway" through which a petitioner must pass before a court may consider constitutional claims which are defaulted. Schlup, 513 U.S. at 315. T h is exception applies where a petitioner establishes that "a constitutional violation has p ro b a b ly resulted in the conviction of one who is actually innocent." Murray, 477 U.S. at 4 9 6 ; Schlup v. Delo, supra. "[T]he Schlup standard is demanding and permits review only in the 'extraordinary' case." House v. Bell, 547 U.S. 518, 538 (2006) (citations omitted). T h u s, "[i]n the usual case the presumed guilt of a prisoner convicted in state court counsels a g a in s t federal review of defaulted claims." Id. at 537.

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" T o establish actual innocence, [a habeas petitioner] must demonstrate that . . . `it is m o re likely than not that no reasonable juror would have convicted him.' Schlup v. Delo, 5 1 3 U.S. 298, 327-328, 115 S.Ct. 851, 867-868, 130 L.Ed.2d 808 (1995)." Bousley v. U n ite d States, 523 U.S. 614, 623 (1998); House, 547 U.S. at 538. In this context, Tharp must s h o w constitutional error coupled with newly discovered evidence that was not presented at tria l that would establish factual innocence rather than mere legal insufficiency. Bousley, 523 U .S . at 623-24; Johnson v. Alabama, 256 F.3d 1156, 1171 (11 th Cir. 2001). See also Schlup, 5 1 3 U.S. at 324. S c h lu p observes that a substantial claim that constitutional error has caused the c o n v ic tio n of an innocent person is extremely rare. . . . To be c re d ib le, such a claim requires petitioner to support his a lle g a tio n s of constitutional error with new reliable evidence ­ w h e t h e r it be exculpatory scientific evidence, trustworthy e ye w itn e ss accounts, or critical physical evidence ­ that was not p re se n ted at trial. Id . at 324.

The instant claims of innocence are based on the same defenses and evidence presented by Tharp at trial. The jury rejected these arguments and found Tharp guilty of one count of capital murder. The court has carefully reviewed the allegations submitted in
su p p o rt of Tharp's actual innocence argument. From that review, the court finds that Tharp d o e s not assert that he has "new" reliable evidence of factual innocence, and there is nothing in the record that suggests a miscarriage of justice will occur if the court does not reach the m e rits of his defaulted claim. Tharp simply presents no evidence nor suggests that any exists 26

w h ic h could satisfy the difficult standard set forth in Schlup. His procedurally defaulted c la im is, therefore, foreclosed from federal habeas review. I I I . CONCLUSION A c c o rd in g ly, it is the RECOMMENDATION of the Magistrate Judge that the petition f o r habeas corpus relief filed by Evester Tharp be DENIED and DISMISSED with prejudice. It is further O R D E R E D that the parties are DIRECTED to file any objections to the said R ec o m m en d ati o n on or before October 26, 2009. Any objections filed must specifically id e n tif y the findings in the Magistrate Judge's Recommendation to which a party objects. F r iv o lo u s , conclusive or general objections will not be considered by the District Court. The p a rtie s are advised that this Recommendation is not a final order of the court and, therefore, it is not appealable. F a ilu re to file written objections to the proposed findings and recommendations in the M a g is tra te Judge's report shall bar the party from a de novo determination by the District C o u rt of issues covered in the report and shall bar the party from attacking on appeal factual f in d in g s in the report accepted or adopted by the District Court except upon grounds of plain e rr o r or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5 th Cir. 1982). See Stein v . Reynolds Securities, Inc., 667 F.2d 33 (11 th Cir. 1982). See also Bonner v. City of P r ic h a r d , 661 F.2d 1206 (11 th Cir. 1981) (en banc), adopting as binding precedent all of the d e c is io n s of the former Fifth Circuit handed down prior to the close of business on S e p te m b e r 30, 1981. 27

D o n e , this 13 th day of October 2009.

/s/Terry F. Moorer TERRY F. MOORER U N IT E D STATES MAGISTRATE JUDGE

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