Landers v. Hooks et al (INMATE 1)

Filing 33

MEMORANDUM OPINION AND ORDER that petition is DENIED. Signed by Honorable Judge Mark E. Fuller on 6/8/2011. (cc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
MARK SAMUEL LANDERS,
Petitioner,
v.
RALPH HOOKS,
Respondent.

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Case No. 2:06-cv-975

(WO-DO NOT PUBLISH)

MEMORANDUM OPINION AND ORDER
Petitioner Mark Samuel Landers (“Landers”) was convicted of capital murder in
the Circuit Court of Elmore County, Alabama in 1997. Elmore County Circuit Judge
Bush sentenced Landers to life imprisonment without parole. Landers now petitions the
Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. # 1). For the
following reasons, that petition is due to be denied.
I. FACTUAL AND PROCEDURAL HISTORY
A jury convicted Landers of killing Robert Landers, Sr., (“the victim”) Landers’s
father, for pecuniary gain or other valuable consideration under Alabama Code (1994) §
13A-5-40(a)(7). This is a capital offense in Alabama.
On the night of February 12, 1992, Landers and his mother discovered the victim’s
body and telephoned law enforcement. A bulldozer was located on top of the left side of
the victim’s body. The bulldozer’s engine was not running, but was in reverse gear. The
bulldozer’s blade was down. A white dump truck hitched to a flat trailer was also located
at the scene. There were no tracks from either the truck or the bulldozer in the immediate

vicinity of the body. Landers told investigators that he and his father had been working at
Landers’s nearby lake house that day. After finishing up, the men pulled the vehicles and
equipment to the scene and drove the bulldozer onto the trailer. Landers left while his
father tied down the bulldozer. Landers speculated that after he left, his father had likely
attempted to unload the bulldozer from the trailer and had somehow fallen off the
bulldozer, which then somehow ran over him.
Authorities could not locate any chain binders at the scene, either in the dump
truck or on the trailer.1 On February 13, 1992, the day after the victim’s body was found,
the sheriff recovered a pair of plastic frame glasses from under one of the bulldozer’s
tracks. Later testing revealed that type O blood, the same type as the victim’s, was
located on the glasses.
The authorities later attempted to reconstruct the alleged accident. They
determined that if the bulldozer had been backed off the trailer in the manner in which
Landers described, the bulldozer would have left tracks and “backblading” marks in the
ground. Neither kind of mark was found at the scene. They also determined that the
bulldozer’s blade would have to be raised in order for it to be backed down the ramp.
Once raised, hydraulic pressure keeps the blade in the raised position until the operator
pulls a lever.

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Chain binders are used to tie down heavy equipment, like bulldozers, to prevent
the equipment from sliding off the trailer during transport.
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After initially receiving the victim’s body, the state medical examiner Dr. James
Lauridson determined that the injuries the victim suffered were consistent with being run
over by a bulldozer. Dr. Lauridson declared the death an accident and released the body
for burial. After conferring with the Alabama Bureau of Investigation, Dr. Lauridson
exhumed the body and conducted a more complete autopsy. The latter examination
revealed head injuries that were not consistent with being run over by a bulldozer. The
victim’s crushing injuries exhibited a horizontal pattern, while the skull fractures on the
victim’s left temple were vertically oriented. Dr. Lauridson concluded that due to the
amount of hemorrhaging in the tissues surrounding the head injury and the fractures’
orientation, the fractures in the left temple must have been the result of blunt force trauma
inflicted before the victim was run over by the bulldozer. Based on these findings, Dr.
Lauridson ruled the death a homicide.
A grand jury indicted Landers on October 4, 1996. The indictment accused
Landers of “intentionally causing the death of Robert Landers, Sr. by running him over
and crushing him with a bulldozer.” However, the state’s theory at trial was that Landers
had caused the blunt force trauma to the victim’s head, and then staged the scene to look
like a bulldozer accident. This was supported by evidence from the victim’s skull,
testimony from the medical examiner, and the pair of glasses found at the scene. The left
arm of the glasses was bent, and the medical examiner testified that the defect in the
glasses was consistent with the location of the blunt force trauma skull fractures.

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At trial, the state presented evidence that Landers had a financial motive to kill his
father. Landers was the sole beneficiary of a $1,000,000 life insurance policy taken out
on the victim’s life less than six months before his death. Landers paid the $37,580.00
yearly premiums out of his company’s funds.2 On April 6, 1992, less than two months
after the victim’s death, Landers filed a claim on the life insurance policy. Because the
insured had died within two years of taking out the policy, the insurance company
challenged the claim in federal court, but was unsuccessful. Landers ultimately collected
on the policy.
Financial records demonstrated that before the victim’s death, Landers’s
construction company was facing significant financial trouble. The company was past
due on the majority of its loans and was engaged in several contract disputes with its
customers. Landers used nearly $200,000 of the insurance proceeds he received after the
victim’s death to settle one of those contract disputes. The state also produced evidence
at trial tending to show that Landers had a habit of filing false insurance claims. Landers
was fired from Allstate for filing false claims and encouraging others to do so.

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Landers testified during a deposition that his insurance agent provided a blank
application to sign and that Landers signed the form before any financial information was
filled out. Landers also testified that his father had requested the insurance coverage as a
part of his estate planning. Much of the financial information included on the application
form was incorrect, and Landers testified that his insurance agent pulled the numbers out
of thin air, thinking that the insurance company would grant the application regardless of
what financial information was included on the form. Landers’s insurance agent stood to
make $17,000 in commission off of the life insurance policy.
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The state called Landers’s sister Victoria Landers Goolsby to the stand. She
testified that the victim had accused Landers of trying to run him over with a bulldozer
only six days before the victim was killed.
After Landers’s trial and sentencing, his mother found a glasses case, allegedly
given to her by law enforcement the night of the victim’s death, which she claims
contains the victim’s actual glasses. At trial, Landers presented evidence suggesting that
the victim’s glasses were wire-rimmed, and therefore that the plastic-rimmed glasses
found underneath the bulldozer did not belong to the victim. Landers argues this new
evidence demonstrates that the glasses found at the scene were not the victim’s, and
therefore that the state’s evidence regarding the glasses could not support his conviction.
At trial, his mother testified that the sheriff had offered her the victim’s rings, wallet, and
glasses on the night the body was discovered. Mrs. Landers recalled taking the wallet and
rings, but refusing the glasses, as they were prescription and she would have no use for
them. This testimony conflicted with the sheriff’s testimony that the glasses were not
found on the scene until the next morning.
After his motion for new trial was denied, Landers appealed his conviction to the
Court of Criminal Appeals on the grounds that:
(1) the evidence was insufficient to sustain his conviction;
(2) the trial court erred in denying his motion to dismiss the indictment, or
in the alternative suppress certain evidence;

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(3) the trial court denied his challenges for cause as to five prospective
jurors;
(4) the trial court erred in denying his motion for change of venue;
(5) the trial court erred in allowing evidence of “collateral” conduct to be
admitted, including evidence regarding the existence of the life insurance
policy;
(6) the trial court erred in allowing Landers’s sister to testify about the
incident six days before the victim’s death;
(7) the trial court erred in allowing evidence regarding the state’s
reconstruction but precluding evidence of the defendant’s experiment;
(8) the trial court erred in denying his motion to continue closing arguments
after defense counsel’s father died;
(9) the trial court erred in refusing to give five of Landers’s requested jury
instructions;
(10) the trial court erred in instructing the jury that evidence of collateral
conduct could only be used for showing motive, plan, or knowledge; and
(11) the trial court erred in denying his motion for new trial.
The Court of Criminal Appeals affirmed Landers’s conviction in an unpublished opinion
on December 15, 2000. Landers v. State, 820 So. 2d 167 (Table) (Ala. Crim. App. 2000).
The court denied Landers’s petition for rehearing without an opinion on March 2, 2001.

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Landers v. State, 821 So. 2d 1029 (Table) (Ala. Crim. App. 2001). Landers then appealed
to the Alabama Supreme Court. The Alabama Supreme Court initially granted his writ of
certiorari, but quashed the writ on June 18, 2004 after receiving the parties’ briefs. Ex
parte Landers, 916 So. 2d 632 (Table) (Ala. 2004).
On May 31, 2005, Landers filed a Rule 32 petition for relief from judgment in the
Circuit Court of Elmore County challenging his conviction on the grounds that:
(1) the state violated Brady v. Maryland 3 by failing to turn over blood
evidence taken from the frame of the victim’s glasses;
(2) the state violated Brady v. Maryland by failing to turn over blood
evidence taken from the lens of the victim’s glasses;
(3) the state violated Brady v. Maryland by failing to turn over the medical
examiner’s notes;
(4) the trial court violated his due process rights by refusing to postpone
closing arguments after defense counsel’s father died;
(5) the State violated his due process rights and right to a fair trial by
delaying his indictment;
(6) the State violated his due process rights and right to a fair trial by failing
to disclose and correct false evidence;
(7) he possessed new evidence in the form of eyeglasses which established

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Brady v. Maryland, 373 U.S. 83 (1963).
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his innocence;
(8) there was a fatal variance between the indictment and the proof offered
at trial; and
(9) that the evidence presented at trial was insufficient to support the
conviction.
In a written order dated September 23, 2005, Circuit Judge Bush found that Landers’s
claims were either precluded from review based on Alabama Rule of Criminal Procedure
32 or were not meritorious.
Landers appealed the denial of his Rule 32 petition to the Court of Criminal
Appeals, which affirmed the trial court’s dismissal of Landers’s petition. Landers v.
State, 978 So. 2d 77 (Table) (Ala. Crim. App. 2006). In its unpublished memorandum
opinion, the Court of Criminal Appeals agreed with the trial court’s assessment that
Landers’s claims were procedurally precluded from review. The Court of Criminal
Appeals denied Landers’s petition for rehearing. Landers, 978 So. 2d 77 (Table).
Landers filed a petition for a writ of certiorari to the Alabama Supreme Court. The
Alabama Supreme Court initially granted the writ, but later quashed it. Ex parte Landers,
992 So. 2d 805 (Table) (Ala. 2006). Landers filed the instant habeas corpus petition on
October 30, 2006.4 (Doc. # 1). He moved for leave to amend his petition, and on June
11, 2007 this Court granted his motion. (Docs. # 7 and 9). Landers filed a second motion

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The state agrees that Landers’s petition is timely filed.
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for leave to amend his petition on July 14, 2009, but later withdrew the motion. (Docs. #
23, 28, 29).
II. LEGAL STANDARD
Section 2254 of the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) provides that a district court “shall entertain an application for a writ of
habeas corpus on behalf of a person in custody pursuant to the judgment of a State court
only on the ground that he is in custody in violation of the Constitution or laws or treaties
of the United States.” 28 U.S.C. § 2254(a). “A federal court may not grant habeas relief
unless the decision of the state court either 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.’” Stephens v. Hall, 407 F.3d 1195,
1201 (11th Cir. 2005) (quoting 28 U.S.C. § 2254(d)).
A state court decision is contrary to clearly established Federal law if “the state
court applies a rule that contradicts the governing law as set forth in Supreme Court case
law” or if “the state confronts a set of facts that are materially indistinguishable from
those in a decision of the Supreme Court and nevertheless arrives at a result different
from the Supreme Court precedent.” Id. at 1202. A state decision is an unreasonable
application of clearly established Federal law when it “identifies the correct legal rule
from Supreme Court case law but unreasonably applies that rule to the facts of the

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petitioner’s case or unreasonably extends, or unreasonably declines to extend, a legal
principle from Supreme Court case law to a new context.” Id. An incorrect application
of federal law is not sufficient to warrant habeas relief, as an “unreasonable application of
federal law is different from an incorrect application of federal law.” Id.
III. DISCUSSION
A district court must resolve all claims for relief raised in a petition for writ of
habeas corpus regardless of whether habeas relief is ultimately granted or denied. Clisby
v. Jones, 960 F.2d 925, 936 (11th Cir. 1992). In this petition, Landers has raised eight
grounds for relief. A summary of those grounds follows:
(1) Landers’s Fifth, Sixth, and Fourteenth Amendment rights were violated
because the indictment returned against him contained an allegation of
death different than the evidence the state produced at trial;
(2) Landers’s Fourteenth Amendment rights were violated because the
evidence presented against him at trial was insufficient to support his
conviction;
(3) Landers’s Fourteenth Amendment rights were violated when the
prosecutor failed to turn over certain physical evidence and destroyed or
disposed of other physical evidence favorable to Landers;
(4) Landers’s Fourteenth Amendment rights were violated when the
prosecutor failed to disclose and/or destroyed the notes made by the medical

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examiner during the first examination of the victim’s body;
(5) Landers’s Sixth and Fourteenth Amendment rights were violated when
the trial judge refused to continue the closing arguments of the punishment
phase of trial after the death of defense counsel’s father;
(6) Landers’s Fourteenth Amendment rights were violated when the state
unduly delayed the prosecution against him;
(7) Landers’s Fourteenth Amendment rights were violated when the state
prevented him from presenting newly discovered evidence material to his
defense; and
(8) Landers’s Fourteenth Amendment rights were violated because the trial
court did not have subject matter jurisdiction to try the case.
Landers requests an evidentiary hearing on his petition. Because his petition is not
meritorious, his request for a hearing is denied.
A. Exhaustion requirements
AEDPA requires that before obtaining habeas relief from a federal court, a state
prisoner must exhaust the remedies available in the courts of the state.5 28 U.S.C. §

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Exhaustion requires that the petitioner present his claims in “one complete round
of the State’s established appellate review process.” O’Sullivan v. Boerckel, 526 U.S.
838, 845 (1999). In Alabama, a complete round of established appellate review process
includes an appeal to the Alabama Court of Criminal Appeals, an application for
rehearing to the Alabama Court of Criminal Appeals, and an application for discretionary
review by the Alabama Supreme Court. See Ala. R. App. P. 4, 39–40.
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2254(b)(1)(A). “This rule of comity reduces friction between the state and federal court
systems by avoiding the “unseemliness’ of a federal district court’s overturning a statecourt conviction without the state courts having had an opportunity to correct the
constitutional violation in the first instance.” Woodford v. Ngo, 548 U.S. 81, 92 (2006).
A petitioner has exhausted state-court remedies when those remedies are no longer
available, regardless of the reason for their unavailability. Id. at 92–93. “Thus, if statecourt remedies are no longer available because the prisoner failed to comply with the
deadline for seeking state-court review or for taking an appeal, those remedies are
technically exhausted.” Id. at 93. However, exhaustion in this sense does not entitle the
petitioner to litigate his claims in federal court. Id. Instead, the claims are considered
procedurally defaulted. Id.; McNair v. Campbell, 416 F.3d 1291, 1305 (11th Cir. 2005)
(“It is well established that when a petitioner has failed to exhaust his claim by failing to
fairly present it to the state courts and the state court remedy is no longer available, the
failure also constitutes a procedural bar.”); Bailey v. Nagle, 172 F.3d 1299, 1305 (11th
Cir. 1998) (“[F]ederal courts may treat unexhausted claims as procedurally defaulted,
even absent a state court determination to that effect, if it is clear from state law that any
future attempts at exhaustion would be futile.”).
In this case, the state asserts that three of Landers’s claims have not been
exhausted—(1) that the state improperly failed to turn over or destroyed relevant physical
evidence including (a) the victims skull, (b) the blood specimen collected from the frame

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of the glasses found at the scene, (c) the blood specimen collected from the lens of the
glasses, and (d) blood specimens collected from the victim’s body; (2) that the state
improperly failed to turn over the medical examiner’s notes; and (3) that the trial judge
erred by refusing to continue closing arguments after the death of defense counsel’s
father. (Doc. # 6 at 19–27). The state claims that each of these claims is unexhausted for
different reasons, and accordingly each claim will be discussed independently below.
1. Destruction of relevant physical evidence
a. The victim’s skull
Landers claims that the state violated his Fourteenth Amendment rights when it
disposed of the victim’s skull before allowing the defense to view or inspect the skull.
This argument was not included as an independent ground for relief on direct appeal.
However, Landers indirectly presented the issue by arguing that the trial court had erred
by failing to suppress the medical examiner’s testimony regarding the vertical fractures
found in the victim’s skull. Landers argued that because the state had destroyed all of the
victim’s skull except that portion of the left temple exhibiting the vertical fractures, the
defense team could not properly counter the examiner’s testimony. Therefore, Landers
argues, his right to due process had been violated and his trial had been rendered
fundamentally unfair.
The Court of Criminal Appeals found that Landers could not demonstrate that the
state acted in bad faith in destroying the victim’s skull. Applying the standard set out in

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Arizona v. Youngblood, 488 U.S. 51 (1988), the Court of Criminal Appeals determined
that the state’s destruction of the victim’s skull was not a due process violation.6 After
the Court of Criminal Appeals denied his direct appeal, Landers applied for rehearing in
the Court of Criminal Appeals and a writ of certiorari to have his appeal heard by the
Alabama Supreme Court.
Both the Alabama Court of Criminal Appeals and the Alabama Supreme Court had
the opportunity to apply the relevant constitutional standard to the facts of Landers’s case.
Accordingly, the Court finds that his claim as to the victim’s skull was in fact exhausted.
Because the state of Alabama was given the opportunity on direct appeal to correct the
alleged constitutional violations, this Court may consider the merits of Landers’s claim.
b. Blood specimen from glasses frame
In his Rule 32 petition, Landers argued that the state’s failure to turn over the
blood specimen from the victim’s glasses amounted to a violation of his rights to due
process. The Court of Criminal Appeals found that Landers’s argument was precluded
from review under Alabama Rule of Criminal Procedure 32.2(a) because the issues could

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The Court recognizes that the Alabama Court of Criminal Appeals went on to
apply a less stringent state standard to Landers’s claims as set out in Ex parte Gingo, 605
So. 2d 1237 (Ala. 1992). However, because Landers presented the operative facts
regarding his due process claim to the Alabama Court of Criminal Appeals, this Court
finds that the Alabama Court of Criminal Appeals and the Alabama Supreme Court had a
fair opportunity to apply the controlling federal principles. Accordingly, the Alabama
Court of Criminal Appeals’ further application of state law standards did not affect
whether the claim was exhausted.
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have been, but were not, raised at trial or on appeal. The state argues that Landers
neglected to argue either in his petition for rehearing or his briefs to the Alabama
Supreme Court that the Court of Criminal Appeals was incorrect in finding his claims
were precluded. Accordingly, the state contends that Landers has failed to exhaust his
state law remedies and therefore that this claim is procedurally defaulted.
However, the Court need not determine whether or not this individual claim is
exhausted. If Landers’s Rule 32 petition did not exhaust the claim, Alabama Rule of
Criminal Procedure 32.2 now prevents him from seeking review of the claim on a
subsequent Rule 32 petition. Because Landers’s time for filing a Rule 32 petition has
passed, his claim is both technically exhausted and procedurally defaulted. See
Woodford, 548 U.S. at 93.7 If Landers’s Rule 32 petition did exhaust the claim, it is still
defaulted, as the Court of Criminal Appeals found that the issue could have been raised
on trial or appeal. This will be discussed in more detail below. However, because the
claim is procedurally defaulted regardless of whether it was properly exhausted, this
Court need not apply the exhaustion requirements to Landers’s claim that the state
violated his due process rights by destroying the blood specimen found on the victim’s

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Alabama Rule of Criminal Procedure 32.2(c) provides that a petition for relief
under Rule 32 must be filed within one year after the issuance of the certificate of
judgment by the Court of Criminal Appeals. The Alabama Supreme Court issued a
certificate of judgment on Landers’s direct appeal on June 18, 2004. Accordingly, his
time for filing a Rule 32 petition has passed, and any unexhausted claim would now be
procedurally defaulted. See Woodford, 548 U.S. at 93.
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glasses frame.
c. Blood specimen from glasses lens
Like his claim regarding blood from the glasses frame, Landers raised a claim
regarding blood from the glasses lens in his Rule 32 petition. The Alabama Court of
Criminal Appeals found that the claim was precluded from review because it could have
been, but was not, raised at trial. Accordingly, as described above, this claim is
procedurally defaulted regardless of whether Landers exhausted it. The Court will
therefore not apply the exhaustion requirements to this claim.
d. Blood specimens from the victim’s body
Last, Landers argues that the state violated his rights to due process by failing to
turn over and/or destroying blood samples taken from the victim’s body. The state argues
that Landers failed to present this claim for relief on both his direct appeal and his Rule
32 proceedings. However, Landers did present this claim in his Rule 32 petition.
Landers discusses in the section entitled “Ground A” how important the blood samples
from both the glasses and the body of the victim were to the prosecution’s case. He
alleges numerous times that he requested the blood specimens, but that both the forensic
lab had either destroyed or consumed through testing both the blood from the victim’s
glasses and the samples taken from the body. Landers also alleges that the state’s failure
to turn over the “blood specimens,” presumably referring both to the blood found on the
glasses and the blood taken from the victim, violated his due process rights. However, on

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appeal, the Court of Criminal Appeals overlooked Landers’s claim that the state violated
his due process rights by failing to turn over the vial of the victim’s blood. Instead, the
court only considered Landers’s claims that the state should have turned over the blood
samples the state took from the two locations on the victim’s glasses. Nothing in the
record indicates that Landers brought this oversight to the Court’s attention. Accordingly,
the state courts did not get a fair opportunity to apply the prevailing constitutional
standard to Landers’s claim regarding the vial of blood. Therefore, Landers’s claim was
not initially exhausted.
Alabama Rule of Criminal Procedure 32.2(c) provides that a petition for relief
under Rule 32 must be filed within one year after the issuance of the certificate of
judgment. The Alabama Supreme Court issued a certificate of judgment on June 18,
2004. Because Landers’s time for filing a Rule 32 petition has passed, his claim is both
technically exhausted and procedurally barred. See Woodford, 548 U.S. at 93.
2. Destruction of medical examiner’s notes
Landers’s fourth ground for relief on this petition is that the state violated his due
process rights by destroying the medical examiner’s notes. The state argues that Landers
has not exhausted this claim. Landers raised this issue on his Rule 32 petition, but the
Alabama Court of Criminal Appeals found that the claim was barred, as it could have
been raised during trial or on appeal. Therefore, as explained above in connection with
the blood evidence, regardless of whether or not the claim was exhausted, it is now

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procedurally defaulted. Accordingly, the Court need not apply the exhaustion
requirements to this claim.
3. Trial judge’s refusal to continue closing arguments
Landers’s petition also alleges that the trial judge erred by refusing to continue the
closing arguments of the trial after defense counsel’s father died. The state argues that
while this ground for relief was presented in the Rule 32 petition, and was appealed, the
Court of Criminal Appeals failed to rule on the ground. This is factually incorrect. The
Court of Criminal Appeals identified Landers’s fourth ground for relief in the Rule 32
petition as follows: “[h]e was denied due process rights when the trial court refused to
postpone closing arguments until after the funeral of his lead counsel’s father.” (Doc. # 6
Ex. F). The Court of Criminal Appeals then went on to explain that Landers’s fourth
ground, among others, was “precluded from review” because it was raised and addressed
on direct appeal. Id. Landers also raised the ground in his petition for certiorari in the
Alabama Supreme Court. (See Doc. # 6 Ex. I at 12).
Landers invoked one complete round of state appellate review with regard to his
claim that the trial judge erred by failing to continue the trial after the death of defense
counsel’s father. The state of Alabama was therefore given the opportunity when
reviewing Landers’s Rule 32 petition to correct the alleged constitutional violations.
Accordingly, Landers’s claim was exhausted. However, as described below, the claim
was procedurally defaulted when the Alabama Court of Criminal Appeals determined that

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it was precluded from review.
B. Procedurally barred claims
“The doctrine of procedural default was developed as a means of ensuring that
federal habeas petitioners first seek relief in accordance with established state
procedures.” Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001). Generally, “[f]ederal
courts may not review a claim that the petitioner procedurally defaulted under state law if
the last state court to review the claim stated clearly and expressly that its judgment rested
on a procedural bar, and the bar presented an independent and adequate state ground for
denying relief.” Baldwin v. Johnson, 152 F.2d 1304, 1318 (11th Cir. 1998) (internal
alternations omitted).
The Eleventh Circuit has established a three pronged test for determining whether
or not a state law procedural ruling constitutes an independent and adequate state law
ground for denying relief. See Card v. Dugger, 911 F.2d 1494, 1516 (11th Cir. 1990).
First, the last state court rendering a judgment in the case must clearly and expressly
articulate that it is relying on state procedural rules to decide the federal law issue without
reaching the merits. Id.; Judd, 250 F.3d at 1313. Second, the state’s decision must be
made solely on state law grounds, and not be “intertwined with an interpretation of
federal law.” Card, 911 F.2d at 1516. Third, the state procedural rule must not be
applied in an arbitrary or unprecedented manner. Id. If the procedural rule is “manifestly
unfair” as applied to the petitioner’s federal constitutional claim, then the procedural rule

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is not ‘adequate’ and cannot be the basis for a procedural default. Judd, 250 F.3d at 1313.
A federal court may grant habeas relief even on a procedurally defaulted claim if
the petitioner can establish cause for the default and prejudice from the asserted error.8
House v. Bell, 547 U.S. 518, 536 (2006). A federal court may also grant habeas relief on
a procedurally defaulted claim if the petitioner can demonstrate that his incarceration is a
miscarriage of justice or fundamentally unjust. See id. (“In appropriate cases . . . the
principles of comity and finality that inform the concepts of cause and prejudice ‘must
yield to the imperative of correcting a fundamentally unjust incarceration.’”). In Schlup v.
Delo, the United States Supreme Court found that a claim of actual innocence may be
enough to bring a petitioner within the “narrow class of cases” which implicate the
fundamental-miscarriage-of-justice rule. 513 U.S. 298, 314 (1995). In this way, the
petitioner’s “claim of innocence is thus ‘not itself a constitutional claim, but instead a
gateway through which a habeas petitioner must pass to have his otherwise barred
constitutional claim considered on the merits.’” Id. (quoting Herrera v. Collins, 506 U.S.
390, 404 (1993).
1. Claims decided on independent and adequate state procedural grounds
The Alabama Court of Criminal Appeals reviewed, and denied on procedural

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Landers does not argue—either in his petition, his amended petition, or his
response to the state’s answer—that he can establish either cause or prejudice. He seems
to rely solely on the argument that his claim for actual innocence is sufficient to allow the
Court to review his constitutional claims on the merits. Accordingly, the Court will not
analyze whether Landers could meet the cause and prejudice standard.
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grounds, almost all of the claims for relief that Landers brings in this habeas petition.
Landers claims, in the first amendment to his petition, that the procedural grounds that the
state courts relied upon were not independent and adequate, and therefore that his claims
are not procedurally defaulted. All of the procedural grounds on which the Alabama
Court of Criminal Appeals relied are contained in Alabama Rule of Criminal Procedure
32.2. The version of the rule in effect at the time the court denied Landers’s Rule 32
petition states, in pertinent part:
(a) PRECLUSION OF GROUNDS. A petitioner will not be given relief
under this rule based upon any ground:
(1) Which may still be raised on direct appeal under the
Alabama Rules of Appellate Procedure or by posttrial motion
under Rule 24; or
(2) Which was raised or addressed at trial; or
(3) Which could have been but was not raised at trial, unless
the ground for relief arises under Rule 32.1(b); or
(4) Which was raised or addressed on appeal or in any
previous collateral proceeding not dismissed pursuant to the
last sentence of Rule 32.1 as a petition that challenges
multiple judgments, whether or not the previous collateral
proceeding was adjudicated on the merits of the grounds
raised; or
(5) Which could have been but was not raised on appeal,
unless the ground for relief arises under Rule 32.1(b).9

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Alabama Rule of Criminal Procedure 32.1 reads in part:

Subject to the limitations of Rule 32.2, any defendant who has been
convicted of a criminal offense may institute a proceeding in the court of
original conviction to secure appropriate relief on the ground that . . .
(b) The court was without jurisdiction to render judgment or to impose
sentence . . .
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The Alabama Court of Criminal Appeals, the last state court to render an opinion
on the merits of Landers’s claims, found that almost every ground for relief contained in
Landers’s federal habeas petition was barred by Rule 32.2(a)(2), (3), or (4), or some
combinations of those provisions.10 In rendering its decision affirming the circuit court’s
denial of Landers’s Rule 32 petition, the Alabama Court of Criminal Appeals relied only
on the state law procedural rules cited above. Therefore, the court’s decision clearly
meets the first and second prongs of the Card test. See 911 F.2d at 1516. The only
question that remains is whether or not the procedural rules applied were “adequate.”
Landers has not provided the Court with a single piece of evidence to demonstrate that
the rules were arbitrarily applied or unfairly applied in this case. The Eleventh Circuit
has previously found that Rule 32(a)(3) and (5) were adequate grounds capable of
triggering a procedural default. See Brownlee v. Haley, 306 F.3d 1043, 1065–66 (11th
Cir. 2002); Kennedy v. Hopper, 156 F.3d 1143, 1147 (11th Cir. 1998) (“In addressing

A petition that challenges multiple judgments entered in more than a single
trial or guilty-plea proceeding shall be dismissed without prejudice.
10

Landers’s claim that the state violated his due process rights by destroying
portions of the victim’s skull before the defense could inspect it was not raised on
Landers’s Rule 32 petition. It was instead raised on appeal, and the Court of Criminal
Appeals rendered an opinion on the merits of that claim. Accordingly, that claim was not
procedurally defaulted, and this Court will review the merits of the claim with the
deference due the state court decision. The Court of Criminal Appeals found that claim 1
was barred by Rule 32.2(a)(3), claim 2 by 32.2(a)(4), claim 4 by 32.2(a)(4), claim 5 by
32.2(a)(4), claim 6 by 32.2(a)(4), claim 7 by 32.2(a)(2), (3), and (4), and claim 8 by
32.2(a)(3).
22

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)”).
Because Landers cannot demonstrate that the state procedural rules were an
inadequate state law ground, the procedural default will bar this Court’s review of claims
1, 2, 4, and 5-8 unless Landers can demonstrate a sufficient claim of innocence.
2. Landers’s procedural claim of actual innocence
In order to rise to the level of a fundamental miscarriage of justice, thereby
triggering the exception to the procedural default rule, a petition alleging actual innocence
must demonstrate that a constitutional error in his case “probably resulted” in the
conviction of an innocent person. Schlup, 513 U.S. at 326–27. In other words, the
petitioner must demonstrate that “it is more likely than not that no reasonable juror would
have found petitioner guilty beyond a reasonable doubt.” Id. at 327. When determining
whether a petitioner’s claims meet the standard set out in Schlup, a court’s focus should
be on the “probative force of relevant evidence that was either excluded or unavailable at
trial.” Id. at 327–28.
In this case, Landers relies on the pair of wire-framed glasses that his mother
discovered after Landers was convicted and sentenced. Landers claims that the wireframed glasses are the victim’s glasses, and that they refute the crux of the state’s case
against him. According to him, the state’s case was based on the theory that Landers
killed the victim by striking him in the head with a blunt object. The state supported that

23

theory with testimony from the medical examiner that the plastic-framed glasses found at
the scene of the crime, and allegedly belonging to the victim, had a deformity in the left
arm consistent with the head injury sustained by the victim. Landers claims that the
glasses his mother found do not have such a deformity.
The Court considers the probative value of the newly discovered glasses, if they
are indeed newly discovered,11 to be slim. During trial, the defense presented substantial
evidence to refute the state’s claim that the plastic framed glasses found at the scene were
not the victim’s. The defense presented the testimony of the convenience store clerk who
saw the victim hours before his death and testified that he was wearing wire-framed
glasses. Landers’s mother testified that her husband wore wire-framed glasses, and
identified several photographs in which the victim was pictured wearing wire-framed
glasses. Landers’s mother also testified that the sheriff had offered her the victim’s
glasses the night the body was found, which cast doubt on the state’s argument that the
glasses found at the scene the morning after were truly the victim’s. The defense also
elicited testimony demonstrating that the scene was unsecured between the time that the
body was found and the time that the glasses were found. Therefore, the newly
discovered glasses were not necessary to cast doubt on the state’s theory, and likely would

11

Landers’s mother testified at trial that the sheriff offered her the victim’s glasses
on the night the body was discovered. Therefore, the defendant should have been alerted
to the possible existence of a pair of glasses belonging to the victim other than the plastic
ones offered by the state.
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have added little probative weight to the evidence already admitted.
Landers contends that the new glasses would entirely refute the state’s evidence
regarding the plastic-framed glasses, thereby disproving the state’s theory that the death
was a homicide. However, even if the jury disregarded all evidence regarding the plasticframed glasses, they would still have evidence upon which to convict Landers for murder.
In other words, the defect in the plastic glasses was not the only evidence of homicide.
The medical examiner testified that there was a significant laceration above the victim’s
left temple and a vertically-oriented impact fracture in the skull at that point. The medical
examiner testified that the fracture in the left temple was inconsistent with an accidental
crushing, and that the amount of blood in the tissues surrounding the wound indicates that
the blunt force trauma occurred before the victim died. The state also submitted pictures
of the victim’s skull and body, demonstrating the presence of the fracture and
hemorrhaging. Therefore, the plastic-framed glasses were not the state’s only evidence
that the victim’s death was the result of a homicide, and a reasonable jury could have
found that Landers killed his father even without the state’s testimony regarding the
glasses.
Landers has not demonstrated that “it is more likely than not that no reasonable
juror would have found petitioner guilty beyond a reasonable doubt” when presented with
the pair of glasses Landers’s mother found. Schlup, 513 U.S. at 326–27. Accordingly,
Landers has not overcome the procedural default of his claims, and this Court may not

25

grant him relief on any defaulted claim.
3. Claims implicating subject matter jurisdiction
In his habeas petition, Landers argues that the indictment returned against him was
so flawed that the trial court did not have subject matter jurisdiction to enter a judgment
against him. To support this, Landers points to the fact that the indictment alleges that
Landers killed the victim by running him over with a bulldozer, but that the state offered
proof at trial to show that Landers killed the victim with blunt force trauma to the head.
Landers failed to raise this argument during trial or on direct appeal, but did include this
claim in his Rule 32 petition. When adjudicating the Rule 32 petition, the Elmore County
Circuit Court found that any variance in the indictment, if one existed, did not rise to the
level of a jurisdictional issue. Because the claim could have been raised at trial or on
appeal, the circuit court found that the claim was procedurally barred by Rule 32.2(a)(3).
Rule 32.2(a)(3) prohibits relief for any ground “[w]hich could have been but was not
raised at trial, unless the ground for relief arises under Rule 32.1(b).” Rule 32.1(b)
provides that a petitioner may bring a claim alleging that the trial court lacked
jurisdiction. The Court of Criminal Appeals upheld the circuit court’s finding that the
claim was procedurally barred, implicitly agreeing that the claim was not a jurisdictional
one.
Landers now re-argues that because the variance deprived the circuit court of
jurisdiction, that his claim falls within the category contemplated by 32.1(b), and that

26

32.2(a)(3) could not act to bar his claim. However, the state court clearly found that the
variance in Landers’s indictment was not a fatal one and did not implicate the court’s
jurisdiction to render a judgment on the murder conviction. That decision was a matter of
state law. See Hunt v. Tucker, 875 F. Supp. 1487, 1522 (N.D. Ala. 1995) (“The question
of whether the state courts had jurisdiction is one for those courts.”). “Jurisdiction to try
an offense includes jurisdiction to determine whether the offense is properly charged.”
Murphy v. Beto, 416 F.2d 98, 100 (5th Cir. 1969).12
Landers has provided no citations in his petition which would indicate to this
Court that the state circuit court’s decision was in error. Accordingly, this Court will not
disturb the state court’s decision that any variance in the indictment was not
jurisdictional, and therefore that the claim was procedurally defaulted.13
C. Destruction of the victim’s skull
Because Landers cannot demonstrate any exception to the procedural default rule,
this Court cannot grant him relief on claims 1, 2, and 4-8. The only claim that remains to
12

In Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir. 1981) (en
banc), the Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions
handed down prior to the close of business on September 30, 1981.
13

There may not even be a variance between the indictment and the state’s proof.
The medical examiner’s testimony was that the victim was struck in the left temple before
being run over by the bulldozer. The medical examiner could not determine whether the
blow to the head was the sole cause of death. In other words, Dr. Lauridson testified that
the victim may still have been alive when he was run over by the bulldozer. The lack of
hemorrhaging in the crushing injuries could be a sign that the victim was dead before he
was run over, or that the bulldozer acted like a natural tourniquet that prevented blood
from flowing to the injured areas.
27

be discussed on the merits is claim 3—that the state violated his rights to due process
when it destroyed much of the victim’s skull before the defense was able to inspect it.
The state retained that portion of the skull that exhibited the vertically oriented fracture
over the victim’s left temple.
In Arizona v. Youngblood, the United States Supreme Court held that the state’s
failure to preserve potentially useful evidence does not constitute a denial of due process
unless the criminal defendant can demonstrate bad faith on the part of the state. 488 U.S.
51, 58–59 (1988). Landers raised this claim on direct appeal, and the Alabama Court of
Criminal Appeals found that Landers had not presented any evidence of bad faith on the
part of the state. In his habeas petition in front of this Court, Landers includes no
allegations of bad faith on the part of the state in its failure to preserve the victim’s entire
skull. Accordingly, this Court can find no reason why the state’s decision in denying
Landers’s request for relief was contrary to established federal law, and Landers is not
entitled to relief on this claim.
IV. CONCLUSION
Landers has not demonstrated that he is entitled to relief on any of the claims
presented in his habeas petition. Accordingly, it is hereby ORDERED that his petition is
DENIED.
Done this the 8th day of June, 2011.
/s/ Mark E. Fuller
UNITED STATES DISTRICT JUDGE
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