Conrad v. Culliver et al (INMATE3)

Filing 24

ORDER ADOPTING 20 REPORT AND RECOMMENDATION. Mr. Conrad's 1 Petition for Writ of Habeas Corpus is DENIED. This case is DISMISSED with prejudice. Final judgment will be entered with a separate document. Signed by Honorable William Keith Watkins on 5/7/2010. (dmn)

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA S O U T H E R N DIVISION R O B E R T THOMAS CONRAD, P e titio n e r, v. GRANT CULLIVER, et al., R e s p o n d e n ts . ) ) ) ) ) ) ) ) )

C A S E NO. 1:08-CV-32-WKW

ORDER T h e Magistrate Judge entered a Report and Recommendation ("R&R") (Doc. # 20) re c o m m e n d in g that Robert Thomas Conrad's petition for a writ of habeas corpus (Doc. # 1) b e denied. As Mr. Conrad has filed an Objection (Doc. # 23) to the R&R, the court reviews th o s e portions objected to de novo. 28 U.S.C. § 636(b). Although Mr. Conrad's original petition asserted numerous bases for relief, he objects to the R&R's treatment of only two of them. His first objection concerns his claim that his tria l counsel was ineffective in failing to object to a jury instruction regarding the degree of c o rro b o ra ti o n required to convict a defendant on the basis of a co-defendant's testimony. (R&R at 20-22; Objection at 1-2.) In Mr. Conrad's view, the jury instruction given allowed th e jury to infer that he could be convicted on the basis of co-defendant testimony alone, in c o n tr a v e n tio n of Alabama law. The R&R found that, even assuming an erroneous jury in s tru c tio n had been given, any such error was harmless beyond a reasonable doubt, because th e co-defendant's testimony was corroborated by sufficient other evidence of Mr. Conrad's

guilt. (R&R at 22.) In particular, the R&R noted that a bullet fired from the robbery victim's g u n was removed from Mr. Conrad's body and presented to the jury as evidence. (R&R at 2 2 .) Mr. Conrad acknowledges that the doctrine of harmless error applies, but appears to a rg u e that it should not bar his claim here because the bullet was "illegally seized" from his b o d y. (Objection at 2.) Indeed, the issue of "illegally seized" bullet is the basis for second prong of Mr. C o n ra d 's Objection to the R&R. He contends that his trial counsel was ineffective in not o b je c tin g to the admission of the bullet, which was obtained via a subpoena from the District A tto rn e y rather than by warrant, as Mr. Conrad claims was required. (Objection at 3.) The R & R did not address this claim on the merits, finding that it was procedurally defaulted by Mr. Conrad's failure to raise it at trial or on direct appeal. (R&R at 32-33.) The Objection d o e s not explain why this procedural bar does not apply, except to assert that Mr. Conrad is e n title d to the exception for actually innocent petitioners. See Schlup v. Delo, 513 U.S. 298, 3 2 0 (1995). For the reasons given in the R&R, the court finds that Mr. Conrad has made no s h o w in g of actual innocence, and his claims regarding the seizure of the bullet remain p ro c e d u ra lly defaulted. Accordingly, there was also no error with respect to the jury in s tru c tio n issue, as the admission of the bullet corroborated the testimony of Mr. Conrad's c o -d e f e n d a n t, and rendered any error harmless. F o r the foregoing reasons, it is ORDERED that: (1 ) The R&R (Doc. # 20) is ADOPTED;

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(2) Mr. Conrad's Petition for Writ of Habeas Corpus (Doc. # 1) is DENIED; and, (3 ) This case is DISMISSED with prejudice. F in a l judgment will be entered with a separate document. D O N E this 7th day of May, 2010.

/s/ W. Keith Watkins UNITED STATES DISTRICT JUDGE

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