Kelley v. Estes et al (INMATE 3)

Filing 27

ORDERED as follows: 1. The 23 Objections and the 26 Addendum to Objections are OVERRULED. 2. The court ADOPTS the 20 Recommendation of the Magistrate Judge. 3. This 1 petition for writ of habeas corpus under 28 U.S.C. § 2254 is DENIED, and this case is DISMISSED with prejudice. Signed by Honorable Judge W. Harold Albritton, III on 12/14/2015. (kh, )

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

JOEL C. KELLEY,
Petitioner,
vs.
DEWAYNE ESTES, et al.,
Respondents.

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CASE NO. 2:13-cv-522-WHA

ORDER
This case is before the court on the Recommendation of the Magistrate Judge (Doc. #20),
entered on October 13, 2015, together with the Petitioner’s Objections (Doc. #23), filed on
November 6, 2015, and Petitioner’s Addendum to Objections (Doc. #26), filed on December 2,
2015. The court has conducted an independent evaluation and de novo review of the file in this
case and, having done so, finds the objections to be without merit.
A jury found Kelley guilty of sexual torture, first-degree sodomy, and first-degree
assault. Kelley submits a 29-page objection to the Recommendation that his 28 U.S.C. § 2254
habeas petition be denied. Essentially, he (A) takes exception to the standard of habeas review
the Magistrate Judge applied to the claims considered on the merits by the state courts [i.e., his
IAC Claims] and (B) reargues all his ineffective assistance of counsel (IAC) claims.
The Magistrate Judge applied the correct standard of review. All of Kelley’s arguments
regarding his IAC claims were considered in the Recommendation.

CLAIMS 1-4

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In his habeas petition, Kelley asserted 7 claims, the first 4 of which were:
1. His original trial counsel, Larry R. Grissett, rendered ineffective assistance by failing
to timely move to sever the charges as to the two victims (“E.P.” and “B.B.”) for purposes of
trial.
2. His second trial counsel, Alfred F. Livaudais, Jr., rendered ineffective assistance by
failing to move for a severance immediately after entering the case.
3. Livaudais and David J. Harrison (Kelley’s third trial counsel) rendered ineffective
assistance by failing to request a jury instruction that the evidence from one count could not be
used to determine guilt on the remaining counts.
4. Livaudais and Harrison rendered ineffective assistance of counsel by failing to move
for a mistrial and/or renew the motion for severance on the ground that the State engaged in
prosecutorial misconduct by causing the grand jury to indict Kelley on a sexual-torture count that
was later nol-prossed.
The Recommendation found that these claims were correctly adjudicated on the merits by
the state courts. In particular, with regard to severance, the Recommendation found:
Here, the offenses consolidated were similar in that each of the incidents occurred
at E.P.’s residence in the same or similar manner; each occurred after Kelley
appeared at the residence uninvited, when each victim was alone and had ingested
medication or alcohol; and each victim was attacked by surprise and was
unconscious or otherwise unable to defend herself before the sexual portion of the
attack. Kelley has not shown that consolidation was improper based on the facts
of the attacks on the two victims. Consequently, he fails to show that Grissett
performed deficiently in failing to timely move for a severance or that he was
prejudiced by Grissett’s allegedly deficient performance in this regard. ....

This court agrees and, for the same reason, none of Kelley's attorneys were ineffective for
failing to move for a severance.

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With regard to the IAC claim based on a proposed jury instruction, the Recommendation
found:
The proposed jury instruction was not an accurate statement of the law because,
as the trial court found, the evidence regarding Kelley’s acts against B.B. was
admissible to help prove his commission of the acts against E.P. Thus, Kelley’s
attorneys were not ineffective for failing to request the jury instruction.

This court agrees.
As to Kelley’s IAC claim rooted in alleged “prosecutorial misconduct,” the
Recommendation found:
Kelley wholly fails to demonstrate prosecutorial misconduct regarding the sexualtorture count as to B.B. that was ultimately nol-prossed, and he fails to show that
a severance of the charges for trial would have been granted had the indictment
not originally included the sexual-torture count as to B.B. He therefore fails to
show that his trial counsel performed deficiently here or that he was prejudiced by
his counsel’s allegedly deficient performance.

Again, this court agrees with the Magistrate Judge.
For the reasons stated, the court agrees with the Recommendation as to all of Kelley’s
IAC claims.
In his addendum to his original Objections, Kelley takes exception to the Magistrate
Judge’s finding that Claims 5 and 6 in his habeas petition were procedurally defaulted. The
court has determined, however, that the Magistrate Judge correctly found that the claims were
unexhausted and defaulted.
In Claim 5, Kelley asserted that the State’s evidence did not support the jury’s verdicts.
In Claim 6, he asserted that the trial court violated his rights under the Fifth, Sixth, and
Fourteenth Amendments by admitting into evidence a flashlight alleged to have been used to
sexually torture one of the victims. Kelley failed to exhaust these claims because he did not

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present them as constitutional claims in his application for rehearing after the Alabama Court of
Criminal Appeals affirmed his convictions on direct appeal and then did not pursue the claims in
the petition for writ of certiorari he subsequently filed with the Alabama Supreme Court.
The Magistrate Judge’s Recommendation also notes the following regarding Kelley's
Claim 6:
With particular regard to Kelley’s claim that the trial court violated his rights by
admitting into evidence a flashlight alleged to have been used to sexually torture
E.P., this court notes that, “[a]s a general rule, a federal court in a habeas corpus
case will not review the trial court’s actions concerning the admissibility of
evidence,” Alderman v. Zant, 22 F.3d 1541, 1555 (11th Cir. 1994), since the state
court “has wide discretion in determining whether to admit evidence at trial....”
Lynd v. Terry, 470 F.3d 1308, 1314 (11th Cir. 2006); see also Baxter v. Thomas,
45 F.3d 1501, 1509 (11th Cir. 1995) (evidentiary ruling claims reviewed only to
determine whether the alleged error “was of such magnitude as to deny
fundamental fairness”). Where the petitioner claims that the state court’s
evidentiary ruling deprived him of due process, the habeas court asks only
whether the error was of such magnitude as to deny the petitioner his right to a
fair trial, i.e., whether the error “was material as regards a critical, highly
significant factor.” Alderman, 22 F.3d at 1555; see also Kight v. Singletary, 50
F.3d 1539, 1546 (11th Cir.1995). Claims in this regard will not support federal
habeas relief unless the asserted error “had substantial and injurious effect or
influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S.
619, 623 (1993) (quotation omitted). Even if Kelley had properly exhausted his
claim about the admission of the flashlight in evidence at trial, this court cannot
say that he was denied a fundamentally fair trial because of the admission of this
evidence. Alderman, 22 F.3d at 1555.
Recommendation at pp. 18-19 n.5.
This court finds Kelley’s new Objections, as it does as to his original Objections, to be without
merit.
Therefore, it is hereby ORDERED as follows:
1. The Objections and the Addendum to Objections are OVERRULED.
2. The court ADOPTS the Recommendation of the Magistrate Judge.
3. This petition for writ of habeas corpus under 28 U.S.C. § 2254 is DENIED, and this
case is DISMISSED with prejudice.
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DONE this 14th day of December, 2015.

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

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