Flournoy v. McSwain-Holland et al (INMATE 2)

Filing 13

ORDER directing that that on or before October 7, 2011 Petitioner may file a response to the answer filed by Respondents, as further set out. Signed by Honorable Judge Wallace Capel, Jr on 9/16/11. (scn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
____________________________
DONNELL FLOURNOY, #126385

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Petitioner,

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v.

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WARDEN MCSWAIN-HOLLAND, et al.,
Respondents.
____________________________

1:11-CV-522-MEF
(WO)

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ORDER
This cause is before the court on a 28 U.S.C. § 2254 petition for habeas corpus relief
filed by Petitioner Donnell Flournoy on June 28, 2011.1 In this petition, Petitioner challenges
matters associated with the revocation of his parole by the Circuit Court for Houston County,
Alabama, in January 2010.
Respondents filed an answer in accordance with the provisions of Rule 5, Rules
Governing Section 2254 Cases in the United States District Courts. (Doc. No. 11 .) They
contend therein that the present habeas corpus petition is due to be denied because the claims
presented by Petitioner provide no basis for relief. Specifically, Respondents maintain that
Petitioner’s allegations that the trial court violated state law when: 1) it failed to determine

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Although the present petition was stamped "filed" in this court on June 30, 2011, Petitioner signed
the petition on June 28, 2011. A pro se inmate’s petition is deemed filed the date it is delivered to prison
officials for mailing. Houston v. Lack, 487 U.S. 266, 271-272 (1988); Adams v. United States, 173 F.3d
1339, 1340-41 (11th Cir. 1999); Garvey v. Vaughn, 993 F.2d 776, 780 (11th Cir. 1993). In light of the
foregoing, the court considers June 28, 2011 as the date of filing.

whether he could be released on bond during the pendency of the revocation hearing; 2)
failed to inform him that he could request to be released on bond; and 3) revoked his
community corrections sentence despite having options other than the revocation available,
do not present cognizable federal claims. Respondents further maintain that the following
issues presented by Petitioner are procedurally defaulted: 1) the trial court failed to inform
him of the nature of the allegations against him; 2) the trial court failed to provide him with
a written copy of the allegations; 3) the trial court failed to advise him that any admissions
he made could be used against him; 4) the trial court failed to advise him of the right to
request appointed counsel; 5) the trial court failed to schedule a separate revocation hearing;
6) the trial court failed to appoint counsel to represent him; and 7) the trial court erroneously
revoked his community corrections sentence despite having options other than revocation.
In support of this argument, Respondents contend that the defaulted claims were not
presented to the state courts in accordance with the requirements of the state’s procedural
rules. See O’Sullivan v. Boerckel, 526 U.S. 838 (1999); Teague v. Lane, 489 U.S. 288
(1989); Wainwright v. Sykes, 433 U.S. 72 (1977).; Smith v. Jones, 256 F.3d 1135, 11401146 (11th Cir. 2001); Brownlee v. Haley, 306 F.3d 1043, 1065 (11th Cir. 2002); Holladay
v. Haley, 209 F.3d 1243, 1254 n. 9 (11th Cir.); Bailey v. Nagle, 172 F.3d 1299, 1303 (11th
Cir. 1999); Collier v. Jones, 901 F.2d 770, 773 (11th Cir. 1990). (Doc. No. 11.)
In sum, § 2254(d)(1) places new constraints on the power of a federal court to grant
a state prisoner’s application for habeas corpus relief with respect to those claims adjudicated

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on the merits in state court. The statute allows this court to grant a writ of habeas corpus
only “if the relevant state-court decision was either (1) ‘contrary to ... clearly established
Federal law, as determined by the Supreme Court of the United States,’ or (2) ‘involved an
unreasonable application of ... clearly established Federal law, as determined by the Supreme
Court of the United States.’ (Emphases added.)” Williams, 529 U.S. at 404-405. “Under §
2254(d)(1) and the Williams decision, [a federal court] can grant relief only if the state court
decision denying relief is ‘contrary to’ clearly established federal law or is an ‘unreasonable
application’ of federal law.” Brown v. Head, 272 F.3d 1308, 1313 (11th Cir. 2001). In the
vast majority of cases, a federal district court will be faced with the contention that the state
court unreasonably applied federal law.

In determining whether the state court’s decision is an
unreasonable application of the law set out in [applicable]
Supreme Court decisions, we need not decide whether we would
have reached the same result as the state court if we had been
deciding the issue in the first instance. Instead, we decide only
whether the state court’s decision of the issue is objectively
unreasonably. See Williams v. Taylor, 529 U.S. 362, 411, 120
S.Ct. 1495, 1522, 146 L.Ed.2d 389 (2000) (“Under
§2254(d)(1)’s ‘unreasonable application’ clause, then, a federal
habeas court may not issue the writ simply because that court
concludes in its independent judgment that the relevant statecourt decision applied clearly established federal law
erroneously or incorrectly. Rather, that application must also be
unreasonable.”); Brown v. Head, 272 F.3d 1308, [1313] (11th
Cir. 2001)(“It is the objective reasonableness, not the
correctness per se, of the state court decision that we are to
decide.”).
Wright v. Secretary for the Dept. of Corrections, 278 F.3d 1245, 1256 (11th Cir. 2002).
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Additionally, the statute makes it clear that a federal court cannot grant relief with respect
to claims adjudicated on the merits by the state courts “unless the adjudication of the claim
. . . 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.” 28 U.S.C. § 2254(d)(2).
A procedural default bars consideration of the merits of a claim “unless the prisoner
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 claims will result in a
fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct.
2546, 2565, 115 L.Ed.2d 640 (1991); Peoples v. Campbell, 377 F.3d 1208, 1235 (11th Cir.
2004); Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir. 2003). However, even if the
petitioner fails to show cause and prejudice, a procedural default will not preclude a federal
court from considering a habeas petitioner's federal constitutional claim where the
petitioner is able to show that the court's failure to address his claim would result in a
"fundamental miscarriage of justice." Schlup v. Delo, 513 U.S. 298, 320 (1995); Murray
v. Carrier, 477 U.S. 478 (1986). The miscarriage of justice exception allows federal courts
to address procedurally defaulted claims if the petitioner shows that "a constitutional
violation has probably resulted in the conviction of one who is actually innocent." Carrier,
477 U.S. at 496.
Accordingly, it is
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ORDERED that on or before October 7, 2011 Petitioner may file a response to the
answer filed by Respondents. Any pleadings, documents or evidence filed after this date
will not be considered by the court except in exceptional circumstances. Petitioner is
advised that at any time after October 7, 2011 the court shall "determine whether an
evidentiary hearing is required. If it appears that an evidentiary hearing is not required, the
[court] shall make such disposition of the petition as justice shall require." Rule 8(a),
Rules Governing Section 2254 Cases in the United States District Courts.
Petitioner is instructed that when responding to Respondents' answer he may file
sworn affidavits or other documents in support of his claims. Affidavits should set forth
specific facts which demonstrate that Petitioner is entitled to relief on those grounds
presented in the habeas corpus petition. If documents which have not previously been filed
with the court are referred to in the affidavits, sworn or certified copies of those papers
must be attached to the affidavits or served with them.

When Petitioner attacks

Respondents' answer by use of affidavits or other documents, the court will, at the proper
time, consider whether to expand the record to include such materials. See Rule 7, Rules
Governing Section 2254 Cases in the United States District Courts.
Petitioner is cautioned that in responding to Respondents' assertion that some of his
constitutional claims for relief are procedurally defaulted he must state specific reasons
why he failed to comply with the state's procedural rules or otherwise did not present or
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pursue these claims in state court either at the trial court level, on appeal, or in available
post-conviction proceedings. Petitioner is advised that the reasons presented must be
legally sufficient and that the facts surrounding or relating to the reasons for the failure
must be stated with specificity. If Petitioner asserts that this court should address the
procedurally defaulted claims under the fundamental miscarriage of justice exception,
Petitioner must show specific reasons for the application of this exception.
Done, this 16th day of September 2011.

/s/ Wallace Capel, Jr.
WALLACE CAPEL, JR
UNITED STATES MAGISTRATE JUDGE

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