Lockwood v. Hooks et al (INMATE3)

Filing 25

MEMORANDUM OPINION AND ORDER directing as follows: (1) Mr. Lockwood's 23 Objections are OVERRULED; (2) the 21 Recommendation of the Magistrate Judge is ADOPTED; (3) Mr. Lockwood's 1 Petition for Habeas Corpus Relief is DENIED; and (4) this case is DISMISSED with prejudice. Signed by Honorable William Keith Watkins on 11/20/2009. (wcl, )

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION A L B E R T JEROME LOCKWOOD, # 134376, P e titio n e r v. R A L P H HOOKS, et al., R e s p o n d e n ts ) ) ) ) ) ) ) ) ) ) )

C A S E NO. 2:07-CV-715-WKW [WO]

M E M O R A N D U M OPINION AND ORDER T h is matter is before the court on inmate Albert Jerome Lockwood's ("Mr. L o c k w o o d " ) petition for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254 (Doc. # 1 ), the Magistrate Judge's Recommendation that Mr. Lockwood's petition (Doc. # 21) be d e n ie d , and Mr. Lockwood's objections to the Magistrate Judge's Recommendation (Doc. # 23). After careful consideration of the applicable law, the parties' briefs, and the record a s a whole, the court finds that Mr. Lockwood's objections are due to be overruled and the M a g is tra te Judge's Recommendation is due to be adopted. I. FACTS AND PROCEDURAL HISTORY M r. Lockwood seeks relief from his 2004 conviction for attempted murder following a jury trial in Circuit Court of Montgomery County, Alabama. Mr. Lockwood filed a direct a p p e a l, presenting claims that, among other things, the trial court erred in admitting into

evidence (1) a transcript of a statement he made to police when the audiotape recording of th a t statement had been lost by law enforcement and (2) his statement to police. (Doc. # 9, E x . B.) He contended that the transcript was inadmissable because the audiotape was lost in bad faith and that the statement was inadmissable because it was taken in violation of his rig h t to remain silent and his right to an attorney. (Doc. # 9, Ex. B.) The Alabama Court of C ri m in a l Appeals affirmed Mr. Lockwood's conviction and sentence, holding (1) that his a rg u m e n t that the trial court erred in admitting the transcript of his statement to police was " m e ritle s s" and (2) that Mr. Lockwood's remaining claims had not been properly preserved f o r appellate review. (Doc. # 9, Ex. D 2-4.) Mr. Lockwood did not seek certiorari review w ith the Alabama Supreme Court, and the Alabama Court of Criminal Appeals entered a c e rtif ic a te of judgment on November 3, 2004. (Doc. # 9, Ex. G.) Mr. Lockwood subsequently filed a state post-conviction petition pursuant to Rule 32 o f the Alabama Rules of Criminal Procedure, arguing that he was denied effective assistance o f counsel because counsel failed to preserve, among other things, the following claims for a p p e lla te review: (1) the improper admission of the transcript of his statement to police when th e evidence showed that the police acted in bad faith in losing the audio recording, and (2) th e improper admission of his statement to police when the evidence showed that it was p ro c u re d in violation of his constitutional right to remain silent and have an attorney present. (Doc. # 9, Ex. H 5-25.) The trial court denied Mr. Lockwood's Rule 32 petition. The A la b a m a Court of Criminal Appeals affirmed the trial court, holding that Mr. Lockwood

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"failed to meet the two-prong test required by Strickland [v. Washington, 466 U.S. 668 1984] to prevail on an ineffective assistance of counsel claim." (Doc. # 9, Ex. K.) Mr. Lockwood s u b s e q u e n tly filed a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. # 1.) The M a g is tra te Judge recommended that his petition be denied. (Doc. # 21.) I I. DISCUSSION P u rs u a n t to 28 U.S.C. § 636(b)(1), the court conducts a de novo review of the portions o f the Recommendation to which objections are made. Mr. Lockwood objects to the M a g is tra te Judge's Recommendation on two grounds. First, Mr. Lockwood claims that the M a g is tra te Judge afforded improper deference to the state court's opinion under § 2254(d). (Doc. # 23, at 5-6).) Second, Mr. Lockwood contends that the Magistrate Judge incorrectly f o u n d that the state court's holding was neither "contrary to" federal law nor "involved an u n re a s o n a b le application" of federal law under § 2254(d)(1). (Doc. # 23, at 6-7.) M r. Lockwood first contends that § 2254(d)'s deferential standard does not apply in t h is case because the state court did not resolve the merits of his claim. Section 2254(d) p ro v id e s that "an application for a writ of habeas corpus . . . shall not be granted with respect to any claim that was adjudicated in State court proceedings unless the adjudication of the c la im " was either (1) "contrary to, or involved an unreasonable application of, clearly e s ta b lis h e d Federal law," or (2) "based on an unreasonable determination of the facts, in light o f the evidence presented in the State court proceeding." Id. (emphasis added). Mr. L o c k w o o d claims that the state court did not apply the correct standard to his ineffective

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assistance of counsel claim and that "where a State Court misconstrues a properly raised c la im , the State Court fails to resolve the merits of the claim." (Pet'r Br. 6 (Doc. # 23).) Mr. L o c k w o o d 's argument lacks merit. Mr. Lockwood first raised his ineffective assistance of counsel claim in his Rule 32 p e t i tio n in state court on January 24, 2005. (Doc. # 9, Ex. H, at 5-11.) The Alabama trial c o u rt denied his petition for state habeas corpus relief, finding that Mr. Lockwood "failed to m e e t his burden of proof regarding ineffective assistance of counsel" as to the admission of th e transcript and his statement to police. (Doc. # 9, Ex. H, at 31-32.) In affirming the trial c o u rt, the Alabama Court of Criminal Appeals provided a detailed explanation of the twop ro n g test for ineffective assistance of counsel claims brought under Strickland. (Doc. # 9, E x . K, at 2-5.) The court ultimately held that Mr. Lockwood failed to satisfy the two-prong te s t because he "failed to prove that his counsel's performance was deficient" and "fail[ed] to prove how that alleged deficiency prejudiced his defense." (Doc. # 9, Ex. K, at 5.) Contrary to Mr. Lockwood's contention, the state court clearly resolved the merits of his in e f f e c tiv e assistance of counsel claim, and the Magistrate Judge was correct to apply the d e f e re n tia l standard of § 2254(d). Mr. Lockwood's reliance on Davis v. Secretary for the Department of Corrections is m isp la c e d . 341 F.3d 1310 (11th Cir. 2003). Davis addressed the unusual scenario where a d e f e n d a n t raises the claim that trial counsel, "while efficacious in raising an issue [during tria l], nonetheless failed to preserve it for appeal." Id. at 1316. In Davis, the petitioner's

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(Davis) attorney raised a Batson challenge during jury selection, but did not preserve the c la im for appellate review by renewing his objections before the swearing in of the jury. Id. a t 1312. After the state appellate court declined to address the Batson issue on appeal, the p e titio n e r filed a state habeas petition, asserting a claim for ineffective assistance of counsel f o r failing to preserve the Batson challenge. Id. The state habeas petition was denied, and th e denial was affirmed. Id. at 1313. As explained in Davis, the state courts construed his c la im as "resting on the clearly unsupported assertion that trial counsel failed to raise a B a ts o n claim." Id. In other words, the state court never addressed the true basis for Davis' i n e f f e c t i v e assistance of counsel claim. Thus, as the Eleventh Circuit ultimately held, the s ta te court did not resolve the merits of Davis' claim, and the deferential standard of § 2 2 5 4 (d ) did not apply. Id. Mr. Lockwood contends that the same thing has happened here ­ namely, that the state c o u rts only resolved whether his attorney was ineffective for failing to object 1 to the in tro d u c tio n of the evidence at issue, and not whether his attorney was ineffective for failing to preserve the evidentiary issues for appeal. However, this case does not involve the u n u s u a l scenario in Davis where an attorney timely objects, yet fails to preserve the objection f o r appellate review. The issue in Davis was "not trial counsel's failure to bring the Batson is su e to the attention of the trial court, but failure in his separate and distinct role of

Although Mr. Lockwood's attorney objected to the introduction of the transcript, Mr. Lockwood claims that his attorney did not do so on the basis of bad faith. (Doc. # 9, Ex. B, at 3.) In other words, Mr. Lockwood contends that his trial counsel did not properly object at trial.

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preserving error for appeal." Id. at 1315 (internal quotations marks omitted) (emphasis a d d e d ). Here, on the other hand, the failure to object and failure to preserve are one in the s a m e . While the attorney error in Davis ­ failure to preserve the previously-asserted Batson c h a l l e n g e for appeal ­ "was, by its nature, unrelated to the outcome of [the petitioner's] tria l," id., here, if Mr. Lockwood is correct that the evidence at issue was inadmissable, the f a ilu re to object necessarily affected the trial itself. It appears that Mr. Lockwood's second objection relates to whether the Magistrate J u d g e correctly found that the state court's rejection of Mr. Lockwood's ineffective a s s is ta n c e of counsel claim was "objectively reasonable" under § 2254(d)(1). As noted a b o v e , to prevail on a federal habeas petition under § 2254(d), Mr. Lockwood must d e m o n s tra te that the state court's adjudication of the claim resulted in a decision that was either (1) "contrary to, or involved an unreasonable application of, clearly established Federal la w ," or (2) "based on an unreasonable determination of the facts, in light of the evidence p re s e n te d in the State court proceeding." Mr. Lockwood claims that the Magistrate Judge " m is u n d e rs t[ o o d ] the applicable law" and "misconstru[ed] the claim." (Pet'r Br. 7.) Thus, M r. Lockwood appears to argue that the Magistrate Judge incorrectly found that the state c o u r t ' s holding was neither "contrary to" federal law nor "involved an unreasonable a p p lic a tio n " of federal law under § 2254(d)(1). T o show that a state court's decision was "contrary to" clearly established federal law, M r. Lockwood must show that the state court (1) failed to apply the correct controlling

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authority, or (2) applied the correct controlling authority to a case involving facts "materially in d is tinguish ab le" from those in a controlling case, but nonetheless reached a different result. Williams v. Taylor, 529 U.S. 362, 405-06 (2000) (defining "contrary to" as "diametrically d if f e re n t," "opposite in character or nature," or "mutually opposed"). Mr. Lockwood claims th a t Davis is controlling authority in this case and that by failing to apply Davis, the state c o u rt's decision was "contrary to" clearly established law. As discussed above, Davis relates to the causation prong of a claim for ineffective assistance of counsel ­ i.e., that the a tto rn e y's deficient performance prejudiced the defendant's defense. Strickland, 466 U.S. a t 687. Mr. Lockwood contends that according to Davis, the correct inquiry in this case is n o t the likelihood of a more favorable outcome at trial, but the likelihood of a more f a v o ra b le outcome on appeal. As discussed above, Davis applies when a defendant raises " th e unusual claim" that his attorney, despite having appropriately raised an issue at trial, was n o n e th e le ss ineffective for failing to preserve that issue for appeal. 341 F.3d at 1316. Here, h o w e v e r, Mr. Lockwood contends that his attorney failed to preserve the evidentiary issues f o r appellate review by failing to object properly to the introduction of that evidence during tria l. Thus, Davis is inapposite. The state court applied the correct controlling authority, and th e decision was not "contrary to" clearly established law. Mr. Lockwood further objects on the basis of the state court's application of the law to his ineffective assistance of counsel claim. To show that a state court's decision involved a n "unreasonable application" of clearly established federal law under § 2254(d)(1), Mr.

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Lockwood must show that although the state court correctly identified the governing law, it a p p lie d the law to the facts in an objectively unreasonable manner, or extended or failed to e x te n d a clearly established legal principle to a new context in a way that is objectively u n re a s o n a b le . Williams, 529 U.S. at 407. "Under § 2254(d)(1)'s `unreasonable application' c la u s e , . . . a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established f e d e ra l law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. Mr. Lockwood disputes the state court's application of the law to his attorney's failure to object to the admission of the transcript of his statement to police on the basis of bad faith. Alabama law clearly establishes the admissibility of such evidence absent a showing of bad f a ith : "Where the tape-recorded statement or conversation is missing or unavailable, `[a] typ e w ritte n transcript of [the recording] is admissible where the officer who listened to the c o n v e rs a tio n at the time of the recording testifies that the transcript accurately reflect[s] the c o n v e rs a tio n .'" Jackson v. State, 594 So. 2d 1289, 1297 (Ala. Crim. App. 1991) (quoting H a w k in s v. State, 443 So. 2d 1312, 1314-15 (Ala. Crim. App. 1983). Here, Officer D. J. Belcher testified at Mr. Lockwood's trial that he was present d u rin g the interview with Mr. Lockwood, he reviewed the audiotape before it was lost, he c o m p a re d the audiotape to the transcript, and the transcript accurately represented the c o n v e rs a tio n . (Trial Tr., Doc. # 9, Ex. A, Vol 2, at 149-50.) Thus, the prosecution satisfied

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the "reliable representation standard" discussed in Jackson, and the evidence was not in a d m is s a b le on this basis. Rather than disputing the reliability of the transcript, Mr. L o c k w o o d contends that the Montgomery Police Department lost the audiotapes in bad faith. Specifically, he claims that his counsel's failure to object to the admission of this evidence o n this basis prejudiced his defense because "it is undisputed that Detective Belcher [k]new th a t [the] audio tape held exculpatory value, since the tape contained evidence that petitioner h a d invoked his right to remain silent and right to counsel[,]" and that "the record s u b s ta n tia te s that the Montgomery Police Department destroyed the evidence." (Pet'r Br. 7.) This allegation is not supported by the trial testimony. Officer Belcher testified at trial as f o llo w s : Q: S o you reviewed the audiotape and compared it with the transcription to d e te rm in e if there were any errors; is that correct? T h a t's correct. A f te r that review, after you reviewed the transcript and the audio tape, what d id you do with those items? A f te r I ­ I put them in a box, and we put them ­ the tape and the transcript w [ e re ] placed in a box. Okay. And I assume that you were ­ well, what was your intent? Who were yo u trying to turn that item over to? I was trying to turn it over to wh[o] is now Sergeant Jeff Davis. D o you know if he ever received that audiotape? M y understanding, Mr. Jeff Davis received the ­ what I have here in front of m e , the transcri[ption], but not the audiotape. 9

A: Q:

A:

Q.

A: Q: A:

Q: A:

H a v e you been able to locate that audiotape? N o , sir. We've looked very diligently. I've looked everywhere basically and ju s t haven't been able to find the tape. Is it lost at this point? At this point, it is. But you do have the transcription? Y e s , sir.

Q: A: Q: A:

(Trial Tr., Doc. # 9, Ex. A, Vol 2, at 150-51.) Mr. Lockwood points to no evidence disputing this testimony. Thus, the state court's d e te rm in a tio n that defense counsel's failure to object to the admission of the transcript on th e basis of bad faith did not prejudice Mr. Lockwood's defense was not unreasonable ­ th e re is no evidence, other than mere speculation as to Officer Belcher's knowledge, that the a u d io ta p e was lost in bad faith. Accordingly, the state court's rejection of Mr. Lockwood's in e f f e c tiv e assistance of counsel claim was objectively reasonable, and Mr. Lockwood is not e n title d to federal habeas relief on this basis. III. CONCLUSION For the foregoing reasons, it is ORDERED as follow: (1 ) (2) (3) M r. Lockwood's objections (Doc. # 23) are OVERRULED; the Recommendation of the Magistrate Judge (Doc. # 21) is ADOPTED; M r. Lockwood's Petition for Habeas Corpus Relief (Doc. # 1) is DENIED; and

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(4)

this case is DISMISSED with prejudice.

DONE this 20th day of November, 2009. /s/ W. Keith Watkins UNITED STATES DISTRICT JUDGE

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