Bibbs v. Patterson et al (INMATE 3)

Filing 23

ORDER: This case is before the court on the 21 Recommendation of the Magistrate Judge filed on 2/10/2015, and the Petitioner's 22 Objection (labeled Response), filed on 2/24/2015. In addition to objecting to the Recommendation, the Response includes renewal of his request for an evidentiary hearing, which the Magistrate Judge did not grant. After an independent evaluation and de novo review of the file in this case, the court finds that no evidentiary hearing is warranted, and that the request is DENIED. The Court finds the 22 Objection to be without merit, and it is hereby OVERRULED. The court ADOPTS the 21 Recommendation of the Magistrate Judge, and it is hereby ORDERED that this petition for habeas corpus relief is DENIED, and this case is DISMISSED with prejudice. Signed by Honorable Judge W. Harold Albritton, III on 3/17/2015. (dmn, )

IN THE UNITED STATES DISTRICT COURT
FORTHE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION

ALLEN D. BIBBS,
Petitioner,
vs.
TONY PATTERSON, et al.,
Respondents.

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CASE NO. 1:12-cv-141-WHA
(WO)

ORDER
This case is before the court on the Recommendation of the Magistrate Judge (Doc. #21),
filed on February 10, 2015, and the Petitioner’s Objection (labeled Response) (Doc. #22), filed
on February 24, 2015. In addition to objecting to the Recommendation, the Response includes
renewal of his request for an evidentiary hearing, which the Magistrate Judge did not grant.
After an independent evaluation and de novo review of the file in this case, the court finds that
no evidentiary hearing is warranted, and that request is DENIED. Further, the court makes the
following findings:
First, Petitioner objects to the conclusion that he failed to show he is entitled to habeas
relief on the claim that his counsel should have argued that under-representation of African
Americans on his venire was due to systematic exclusion of the group in the number of driver
licenses issued. Doc. No. 22, at 2; Doc. No. 21, at 11. Petitioner cites to new evidence to
support his claim, evidence that he did not present to the Magistrate Judge or the state courts. He
does not explain how this court has authority to consider the new evidence, and he does not
attempt to explain why the determination of factual issues by the state court should not be

presumed correct under 28 U.S.C. § 2254(e). His objection is not a basis for granting habeas
relief on the issue.
Second, Petitioner objects to the conclusion that he failed to show he is entitled to habeas
relief on the claim that his counsel should have challenged a juror removed for cause when the
juror said Petitioner would not be responsible if he was consuming alcohol. Doc. No. 22, at 3;
Doc. No. 21, at 12-13. Petitioner submits a new argument and evidence that the juror was one of
several who commented on intoxication, yet she was the only one removed; and studies have
shown African Americans, particularly those in the rural South, have different opinions and
habits concerning alcohol consumption compared to Caucasians. Petitioner further argues that if
the juror had remained on the panel:
studies show that there is a probability she would have had a different opinion about his
alcohol consumption than everyone else on the panel; specifically she would have found that
due to the Petitioner's intoxication, he would not have formed the intent necessary to commit
the crime alleged, which would have lead to a different result: instead of a conviction, there
would have been a hung jury. Furthermore, according to the Petitioner's mother Diane
Bibbs, the Petitioner's family has a history of bipolarism and split-personality disorder, and
the petitioner was at one time prescribed Zoloft, a medication that is known for creating
mental complications when combined with alcohol. These revelations are new as prior
counsel never discovered them, or at least never spoke with petitioner's mother.
Doc. No. 22, at 3-4. Again, Petitioner does not explain how this court may consider the new
evidence in light of 28 U.S.C. § 2254(e), or how the argument provides a basis for altering the
Magistrate Judge’s prior analysis.
Third, Petitioner objects to the conclusion that he failed to show he is entitled to habeas
relief on the claim that his counsel should have sought suppression of his statement to officers
that he "had an incident with [his] wife last night." Doc. No. 22, at 4; Doc. No. 21, at 14. He
argues that he was in custody and, contrary to the court's conclusion, his statements were not
voluntary. Petitioner adds that "the statement was not voluntary given the enhancement of his

intoxication as shown from the new revelations of his Zoloft usage and mental disorders."
Doc.No. 22, at 4. Petitioner does not explain how this court may consider the new evidence, see
28 U.S.C. § 2254(e), or show that the Magistrate Judge’s conclusion was in error.
Regarding the other claims of alleged ineffective performance by counsel, Petitioner
simply reasserts his prior arguments. Doc. No. 22, at 4-6; Doc. No. 21, at 16-25. He does not
provide any persuasive argument or authority suggesting the Magistrate Judge’s analysis was in
error.
Finally, Petitioner objects to the conclusion that he failed to overcome his procedural
default of the claim that the trial court should have granted a mistrial after the jury heard
evidence of Petitioner's prior bad acts. Doc. No. 21, at 25-30; Doc. No. 22, at 6-7. He argues it
was a fundamental miscarriage of justice not to order a mistrial based on the court's alleged error
and the totality of his other claims, including:
for example, the admission of a knife in the woods that had no other connection to the
parties; the systematic removal of all African Americans from the jury venire and panel and
anyone who might believe intoxication could excuse some actions; the lack of admonitions to
the jury about voluntary intoxication as a defense; the new revelations about the Defendant's
mental condition and medical history; the studies on racial views on alcohol; the studies of
who has a valid driver's license by race; the fact that the same trial judge also denied the Rule
32 petition; potential black jurors were struck for visiting relatives in jail, when blacks are
5.6 times as likely to be imprisoned in Alabama than are whites (see
http:www.sentencingproject.org/doc/publications/rd_stateratesofincbyraceandethnicity.pdf);
Diane Bibbs, Petitioner's mother, says Bibbs was taken out of school in junior high because
he had such mental problems and he would talk to himself and sleep with his eyes wide open
and scream randomly and black out; his brother had been killed in 1997 subjecting him to
further mental trauma.
Doc. No. 22, at 6-7. Many of the claims Petitioner identifies in his cursory listing are new
arguments not previously presented. Even assuming the court can consider the "totality of the
other issues," id. at 6, they do not meet the difficult standard to show that Petitioner's is the

"extraordinary case" warranting federal review of the defaulted claim. See House v. Bell, 547
U.S. 518, 538 (2006) (quotation marks and citation omitted).
For the foregoing reasons, the court finds the objection to be without merit, and it is
hereby OVERRULED. The court ADOPTS the Recommendation of the Magistrate Judge, and it
is hereby
ORDERED that this petition for habeas corpus relief is DENIED, and this case is
DISMISSED with prejudice.
DONE this 17th day of March, 2015.

/s/ W. Harold Albritton
W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT JUDGE