Boone v. Price et al (INMATE 3)

Filing 40

MEMORANDUM OPINION AND ORDER: it is ORDERED as follows that: 1. the Petitioner's 30 objections are OVERRULED; 2. the 27 Recommendation of the Magistrate Judge is ADOPTED; 3. the petition for writ of habeas corpus is DENIED; and 4. this case is DISMISSED with prejudice. A separate judgment will be entered. Signed by Chief Judge Emily C. Marks on 9/15/2021. (bes, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
DAOUD BOONE, #276751,

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Petitioner,
v.
CHERYL PRICE, et al.,
Respondents.

CIV. ACT. NO. 2:15-cv-556-ECM
(WO)

MEMORANDUM OPINION and ORDER
Now pending before the Court is Petitioner Daoud Boone’s petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254 challenging his state conviction for capital
murder. (Doc. 1). In his petition, Boone raises claims of ineffective assistance of counsel
(doc. 2 at 23, 32, 37, and 43-44), as well as a claim that the prosecutor improperly
commented on his post-arrest silence. (Id. at 2-3). The Magistrate Judge entered a
Recommendation that the petition be denied. (Doc. 27). The Petitioner timely filed
objections. (Docs. 30-31).
When a party objects to a Magistrate Judge’s Report and Recommendation, the
district court must review the disputed portions de novo. 28 U.S.C. § 636(b)(1). See also
United States v. Raddatz, 447 U.S. 667, 674 (1980). The district court “may accept, reject,
or modify the recommended disposition; receive further evidence; or resubmit the matter
to the magistrate judge with instructions.” 28 U.S.C. § 636(b)(1). De novo review requires
that the district court independently consider factual issues based on the record. Jeffrey S.
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by Ernest S. v. State Bd. of Educ. of State of Ga., 896 F.2d 507, 513 (11th Cir. 1990). “[A]
party that wishes to preserve[his] objection must clearly advise the district court and
pinpoint the specific findings that the party disagrees with.” United States v. Schultz, 565
F.3d 1353, 1360 (11th Cir. 2009) (alteration added).
Following an independent evaluation and de novo review of the record in this case,
the Court finds the objections to be without merit and are due to be overruled.
DISCUSSION
On November 23, 2010, a Montgomery County, Alabama jury found Daoud
Boone (“Boone” or “the Petitioner”) guilty of capital murder, in violation of Ala. Code
§ 13A-5-40(a)(7). The trial court sentenced Boone to life imprisonment without parole.
In his habeas petition, Boone makes the following claims: the prosecutor improperly
commented on his post-Miranda silence after he was arrested; trial counsel was ineffective
for failing to present alibi witnesses, including failing to allow him to testify; trial and
appellate counsel were ineffective for failing to adequately research and argue that he could
not be impeached with his 2009 felony drug conviction if he chose to testify, causing Boone
to not to testify; trial counsel rendered ineffective assistance by failing to object to the trial
court’s jury instruction amending the indictment, and failing to argue the capital murder
statute under which Boone was convicted was unconstitutionally vague. Boone also claims
that appellate counsel rendered ineffective assistance for failing to argue that the trial court
erroneously permitted unreliable witness identification testimony. (Doc. 27 at 13) (citing

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Docs. 1 & 2 at 3-53). The Magistrate Judge recommended that the petition for writ of
habeas corpus be denied and recommended dismissal of Boone’s petition. (Doc. 27 at 43).
Although Boone raises numerous grounds for relief in his petition and a variety of
objections1 to the Recommendation of the Magistrate Judge, his objections focus on
whether the evidence was sufficient to convict him and whether his trial counsel was
ineffective for failing to call alibi witnesses, including Boone, to testify at trial.2
Boone’s habeas petition is governed by 28 U.S.C. § 2254, as amended by the AntiTerrorism and Effective Death Penalty Act (“AEDPA”), which “establishes a highly
deferential standard for reviewing state court judgments.” Al-Amin v. Warden Ga. Dep’t of
Corrs., 932 F.3d 1291, 1298 (11th Cir. 2019). To prevail on a § 2254 claim adjudicated
on the merits by the state courts, Boone must demonstrate that the decisions by the Alabama
courts were “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 state court.”

Boone details in length his objections to the Magistrate Judge’s characterization of the trial evidence. For
example, Boone objects to the Magistrate Judge’s characterization of Igor’s, the scene of the shooting, as a
nightclub. Igor’s was described as a nightclub both at trial and in the Court of Criminal Appeals’
decision. Despite Boone’s objections, the terminology used in the Recommendation was in no way
misleading, and Boone does not assert that he was prejudiced by the Magistrate Judge’s recounting of the
evidence.
Boone also extensively attacks the evidence presented at trial, attempts to impeach trial witnesses and
challenges the sufficiency of the evidence presented against him at trial. (Doc. 30 at 2–23). Although Boone
argues that these factual determinations were contrary to or an unreasonable determination of the facts, he
does not point to any legal error committed by the Magistrate Judge.
Thus, these objections do not merit further discussion and are due to be overruled.

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The Court addresses Boone’s objection that his counsel prevented him from testifying in the context of
his ineffective assistance of counsel claim.

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Dunn v. Madison, 138 S. Ct. 9, 11 (2017) (internal quotations omitted) (citing 28 U.S.C. §
2254(d)). “A habeas petitioner meets this demanding standard only when he shows that
the state court's decision was ‘so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fairminded
disagreement.’” Id. (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)).
A state court’s decision involves an “unreasonable application” of federal law if it
either (1) correctly identifies the governing rule but then applies it to a new set of facts in
a way that is objectively unreasonable, or (2) extends or fails to extend a clearly established
legal principle in a new context in a way that is objectively unreasonable. Williams v.
Taylor, 529 U.S. 362, 407 (2000). Federal district courts are likewise directed to determine
whether the state court based its findings 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
state court’s determinations of fact shall be “presumed to be correct,” and the habeas
petitioner “shall have the burden of rebutting the presumption of correctness by clear and
convincing evidence.” Wood v. Allen, 558 U.S. 290, 293 (2010) (quoting 28 U.S.C. §
2254(e)(1)). However, even when the state court addresses a question of law, this Court is
not authorized “to evaluate [a petitioner’s] claim de novo rather than through the lens of §
2254(d).” Price v. Vincent, 538 U.S. 634, 639 (2003).
Under § 2254(d)(2), “a state-court factual determination is not
unreasonable merely because the federal habeas court would
have reached a different conclusion in the first instance.” Wood
v. Allen, 558 U.S. 290, 301, 130 S.Ct. 841, 175 L.Ed.2d 738
(2010). Instead, AEDPA requires that we accord the state court
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substantial deference. “If reasonable minds reviewing the
record might disagree about the finding in question,” we must
yield to the state court’s factual determination. Brumfield v.
Cain, ––– U.S. –––, 135 S.Ct. 2269, 2277, 192 L.Ed.2d 356
(2015) (quotation marks omitted and alteration adopted).
“AEDPA also requires federal habeas courts to presume the
correctness of state courts’ factual findings unless applicants
rebut this presumption with ‘clear and convincing
evidence.’” Schriro v. Landrigan, 550 U.S. 465, 473–74, 127
S.Ct. 1933, 167 L.Ed.2d 836 (2007) (quoting 28 U.S.C. §
2254(e)(1)). “Clear and convincing evidence is a ‘demanding
but not insatiable’ standard, requiring proof that a claim is
highly probable.” Bishop v. Warden, GDCP, 726 F.3d 1243,
1258 (11th Cir.2013) (quoting Ward v. Hall, 592 F.3d 1144,
1177 (11th Cir.2010)). “[H]ighly probable” is a standard that
requires “more than a preponderance of the evidence but less
than proof beyond a reasonable doubt.” Ward, 592 F.3d at
1177 (quotation marks omitted).
Nejad v. Attorney Gen., State of Ga., 830 F.3d 1280, 1289 (11th Cir. 2016)
It is within these parameters that the Court turns to Boone’s objections.
A. Doyle Claim
Boone first objects that the Magistrate Judge erred in his resolution of his Doyle3
claim. In Doyle, the Supreme Court held that “the use for impeachment purposes of
petitioners’ silence, at the time of arrest and after receiving Miranda warnings, violated the
Due Process Clause of the Fourteenth Amendment.” 426 U.S. at 619. Boone reiterates the
claims made in his petition but offers nothing other than his own conclusory assertions that
the Court of Criminal Appeals decision was contrary to or an unreasonable application of
clearly established federal law or based on an unreasonable determination of the facts in

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See Doyle v. Ohio, 426 U.S. 610 (1976).

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light of the evidence presented in state court. As discussed in the Recommendation, the
Court of Criminal Appeals held that “no violation of the Doyle rule occurred, and, thus, the
trial court did not err in denying Boone’s motion for a mistrial.” (Doc. 27 at 22). The
Petitioner does not point to any legal error committed by the Magistrate Judge, and the
well-reasoned Recommendation of the Magistrate Judge effectively addresses this claim.
Thus, Boone’s objections related to his Doyle claim are due to be overruled.
B. Ineffective Assistance of Counsel Claims
The Court now turns to Boone’s claims of ineffective assistance of counsel. Boone
must satisfy the requirements of a two-pronged test to prevail on his claims of ineffective
assistance of counsel. First, Boone must establish that his attorneys’ performances “fell
below an objective standard of reasonableness.” Strickland v. Washington, 466 U.S. 668,
688 (1984). “The proper measure of attorney performance remains simply reasonableness
under prevailing professional norms.” Id. Once this threshold test is met, Boone must then
show that the deficient performance of his counsel prejudiced his defense. Id. at 687. To
establish prejudice, Boone is required to show that “there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694. With regard to the two-prong test itself, the Strickland Court
determined that a court should not treat the test as a mechanical set of rules. Therefore,
there is no reason for a court deciding an ineffective assistance
claim to approach the inquiry in the same order or even to
address both components of the inquiry if the defendant makes
an insufficient showing on one. . . . If it is easier to dispose of
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an ineffectiveness claim on the ground of lack of sufficient
prejudice . . . . that course should be followed.
Id. at 697.
There is a strong presumption that counsel’s performance was reasonable and
adequate and great deference is shown to choices dictated by reasonable trial strategy.
Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994). Any review of an ineffective assistance
of counsel claim is conducted from the perspective of defense counsel based on facts “as
they were known to counsel at the time of the representation.” United States v. Teague,
953 F.2d 1525, 1535 (11th Cir. 1992).
Before addressing his substantive ineffective assistance of counsel claims, the Court
turns to Boone’s objection that his counsel denied him his right to testify at trial. According
to Boone, part of his ineffective assistance of counsel claim about his alibi witnesses also
included a claim that his trial counsel denied him his right to testify in his own defense and
that the Recommendation failed to address this claim. Throughout his objections, Boone
asserts that he was prohibited by his attorney from testifying. However, in his petition and
in the state courts, Boone repeatedly asserted that his trial counsel was ineffective for
failing to present a successful argument that his 2009 felony drug conviction was
inadmissible as impeachment.4 The crux of Boone’s ineffective assistance claim was that

Even if the Court assumes that trial counsel prevented Boone from testifying, and that constitutes deficient
performance, Boone cannot demonstrate prejudice. See Nejad, 830 F.3d at 1290–95. It is undisputed that
Boone’s testimony from his first trial was read to the jury. (Doc. 11-17 at 82–116). Thereafter, the jury
convicted Boone. Boone has failed to demonstrate that there was a reasonable probability that the outcome
of his trial would have been different if he had testified. He is entitled to no relief on this basis.

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the trial court’s ruling on the admissibility of his prior conviction led to the decision not to
testify on his own behalf because of the possibility that he would be impeached. Boone
argued that if his lawyers were not deficient, he could have testified without fear of
impeachment with the prior conviction.5 To the extent that Boone is trying to assert a new
substantive Sixth Amendment claim that he was denied his right to testify, he may not now
amend his petition by raising new claims in his objections to the Recommendation of the
Magistrate Judge. See Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir.
2004) (citation omitted); Dukes v. Deaton, 852 F.3d 1035, 1046 (11th Cir. 2017).
Boone also objects at length to denial of his ineffective assistance of counsel claims
as they relate to counsel’s failure to present alibi witnesses, Tahira Boone and KeRae
Singer, as well as himself, at trial. (Doc. 30 at 35–46). The Magistrate Judge concluded
that Boone had failed to demonstrate prejudice under Strickland, 466 U.S. at 694.
Although Boone asserts that the Court must accept his claims as true because the State has
not refuted his claims, (doc. 30 at 39), he cites the Court to no authority for this proposition.

Moreover, the Magistrate Judge found that the ineffective assistance of counsel claim on this basis was
procedurally defaulted, and further found that even if Boone could establish cause for the default, he could
not establish prejudice because Boone “fails to demonstrate that his underlying claims are meritorious.”
(Doc. 27 at 40). In his objection, Boone fails to show that his trial and appellate counsel were ineffective
for failing to pursue this issue because he presents no authority or applicable case law that would establish
that his felony drug possession conviction could not have been introduced for impeachment purposes if he
had taken the stand at trial. Because the jury at Boone’s murder trial was read Boone’s testimony from his
first trial, and the same jury was not informed of Boone’s felony drug possession conviction, under the
circumstances, Boone has failed to demonstrate prejudice.
Furthermore, Boone ignores the fact that at trial, his counsel objected to the admissibility of his drug
conviction, and the trial court ruled against Boone. (Doc. 11-17 at 9–20; 68–74). His objections on this
basis are due to be overruled.
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It is Boone’s burden to “rebut[] the presumption of correctness by clear and convincing
evidence,” which he has failed to do. Wood, 558 U.S. at 293. (bracket added). Boone
repeats his arguments that counsel was ineffective but fails to demonstrate that there is a
reasonable probability that the result of the trial would have been different had he, Tahira
Boone and KeRae Singer testified at trial.6 The Court concludes that the Magistrate Judge
correctly applied Strickland, supra, to Boone’s claims.
In addition, this Court agrees with the conclusion of the Magistrate Judge that Boone
has failed to establish cause and prejudice sufficient to allow the Court to consider his
procedurally defaulted claims. (Doc. 27 at 38–42).
Finally, to the extent Boone objects to the denial of an evidentiary hearing, his
objection is due to be overruled. “An evidentiary hearing may be necessary where the
material facts are in dispute, but a petitioner is not entitled to an evidentiary hearing when
his claims are merely conclusory allegations unsupported by specifics.” San Martin v.
McNeil, 633 F.3d 1257, 1271 (11th Cir. 2011) (quoting Pugh v. Smith, 465 F.3d 1295, 1300
(11th Cir. 2006) (internal quotation marks, citation, and alterations omitted)). The Court
concludes that under the circumstances of this case, an evidentiary hearing is unnecessary.
CONCLUSION
Accordingly, upon an independent review of the record in this case and for good
cause, it is

As noted, Boone’s testimony from his first trial was read to the jury. Boone has failed to demonstrate
that his testimony would have differed at his second trial sufficient to establish a reasonable probability
that the result of the trial would have been different.

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ORDERED as follows that:
1.

the Petitioner’s objections are OVERRULED;

2.

the Recommendation of the Magistrate Judge is ADOPTED;

3.

the petition for writ of habeas corpus is DENIED; and

4.

this case is DISMISSED with prejudice.

A separate judgment will be entered.
DONE this 15th day of September, 2021.
/s/ Emily C. Marks
EMILY C. MARKS
CHIEF UNITED STATES DISTRICT JUDGE

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