Waites v. Cummins et al (INMATE 2)

Filing 4

ORDER re 1 Petition for Writ of Habeas Corpus filed by Barry Waites; clerk is DIRECTED to mail a copy of the petition and this order to Attorney General of Alabama and Warden John Cummins; further ordering that on or before May 12, 2010 respondents shall file an answer to the petition, as further set out in order. Signed by Honorable Terry F. Moorer on 4/19/10. (scn, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA EASTERN DIVISION ____________________________ B A R R Y WAITES, #250 157 P e t i t io n e r , v. J O H N CUMMINS, WARDEN, et al., Respondents. ____________________________ * * * * * 3:10-CV-295-ID (W O )

ORDER T h is cause is before the court on a 28 U.S.C. § 2254 petition for habeas corpus relief f iled by Petitioner Barry Waites on April 4, 2010.1 In this petition, Petitioner challenges his c o n v ic tio n for murder entered against him by the Circuit Court for Chambers County, A la b a m a , on November 21, 2006. The Clerk is DIRECTED to mail a copy of the petition and this order to the Attorney G e n e ra l of the State of Alabama and cause a copy of the same to be served upon Warden J o h n Cummins. On or before May 12, 2010 Respondents shall file an answer to the petition.

Although the present petition was stamped "filed" in this court on April 6, 2010, the petition was signed by Petitioner on April 4, 2010. A pro se inmate's petition is deemed filed the date it is delivered to prison officials for mailing. Houston v. Lack, 487 U.S. 266, 271-272 (1988); Adams v. United States, 173 F.3d 1339, 1340-41 (11th Cir. 1999); Garvey v. Vaughn, 993 F.2d 776, 780 (11th Cir. 1993). "Absent evidence to the contrary in the form of prison logs or other records, [this court] must assume that [the instant petition] was delivered to prison authorities the day [Waites] signed it . . ." Washington v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001). In light of the foregoing, the court considers April 4, 2010 as the date of filing.

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In filing their answer, Respondents should comply with the provisions of Rule 5 of the rules g o v e rn in g § 2254 cases in the district courts which requires, in pertinent part, that the answer . . . indicate what transcripts (of pretrial, tria l sentencing, and post-conviction proceedings) are available, when they can be f u rn is h e d , and also what proceedings haven been recorded and not transcribed. R u le 5 also requires that Respondents attach to their answer such portions of the transcript a s they deem relevant. Additionally, Respondents should make specific reference to 28 U .S .C . § 2244(d)(1).2 R e sp o n d e n ts are advised that the answer should contain a procedural history from w h ic h the court can determine the applicability of 28 U.S.C. § 2244(d). In so doing, R e sp o n d e n ts shall provide the court with copies of documents indicating the disposition of

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28 U.SC. § 2244(d) provides:

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. (2) The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

the case in the state appellate court, including but not limited to the case action summary m a in ta in e d by the trial court, all state court appellate decisions, the docket sheet(s) indicating th e dates of such decisions, and copies of the briefs filed in the state court. Respondents are c a u tio n ed that if they fail to assert the timeliness issue it may be waived. Respondents s h a ll also inform the court of whether this is the first habeas petition filed by Petitioner c h a lle n g in g the conviction which is the basis for the instant petition. If Petitioner has f ile d a previous federal habeas application challenging the conviction underlying the present p e titio n , Respondents shall provide the court with the disposition of such petition.3 S e c tio n 2254(d)(1) of the AEDPA significantly "modifies the role of federal habeas c o u rts in reviewing petitions filed by state prisoners." Williams v. Taylor, 529 U.S. 362, 403 (2 0 0 0 ). In sum, § 2254(d)(1) places new constraints on the power of a federal court to grant a state prisoner's application for habeas corpus relief with respect to those claims adjudicated o n the merits in state court. Specifically, the statute allows this court to grant a writ of h ab ea s corpus only "if the relevant state-court decision was either (1) `contrary to ... clearly e s ta b l is h e d Federal law, as determined by the Supreme Court of the United States,' or (2) `in v o lv e d an unreasonable application of ... clearly established Federal law, as determined b y the Supreme Court of the United States.' (Emphases added.)" Williams v. Taylor, 529 U .S . at 404-405. "Under § 2254(d)(1) and the Williams decision, [a federal court] can grant

This information is relevant to the disposition of this case as 28 U.S.C. § 2244(b)(3)(A) requires that "[b]efore a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." A prior petition dismissed for failure to exhaust state remedies,

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however, does not render a subsequent petition successive.

relief only if the state court decision denying relief is `contrary to' clearly established federal la w or is an `unreasonable application' of federal law." Brown v. Head, 272 F.3d 1308, 1313 (1 1 th Cir. 2001). In the vast majority of cases, a federal district court will be faced with the c o n te n tio n that the state court unreasonably applied federal law.

In determining whether the state court's decision is an u n re a s o n a b le application of the law set out in [applicable] S u p re m e Court decisions, we need not decide whether we would h a v e reached the same result as the state court if we had been d e c id in g the issue in the first instance. Instead, we decide only w h e th e r the state court's decision of the issue is objectively u n re a s o n a b ly. See Williams v. Taylor, 529 U.S. 362, 411, 120 S .C t. 1495, 1522, 146 L.Ed.2d 389 (2000) ("Under § 2 2 5 4 (d )(1 )'s `unreasonable application' clause, then, a federal h a b e a s court may not issue the writ simply because that court c o n c lu d e s in its independent judgment that the relevant statec o u rt decision applied clearly established federal law e rro n e o u sly or incorrectly. Rather, that application must also be u n re a so n a b le." ); Brown v. Head, 272 F.3d 1308, [1313] (11 th C ir. 2001)("It is the objective reasonableness, not the c o r re c tn e s s per se, of the state court decision that we are to d ec ide."). W r ig h t v. Secretary for the Dept. of Corrections, 278 F.3d 1245, 1256 (11 th Cir. 2002). A d d itio n a lly, the statute makes it clear that a federal court cannot grant relief with respect to claims adjudicated on the merits by the state courts "unless the adjudication of the claim . . . resulted in a decision that was based on an unreasonable determination of the facts in lig h t of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2). If Respondents contend, therefore, that this court is precluded from granting h a b ea s relief because claims raised by Petitioner have been properly adjudicated by the state courts in accordance with clearly established Supreme Court precedent,

Respondents must identify to this court the Supreme Court authority on which the state c o u r t relied in adjudicating Petitioner's claims and the decision of the state court on e a c h claim. Moreover, if Petitioner has not raised his federal claims in the state courts and h a s an available state court remedy wherein he may present such claims, Respondents shall id e n tif y the remedy available to Petitioner. The court deems such action necessary as the law re q u ire s that an application for writ of habeas corpus filed by "a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has e x h a u s te d the remedies available in the courts of the State . . ." 28 U.S.C. §

2 2 5 4 (1 )( b )( 1 )( A ). In addition, if this court is barred from reviewing a petitioner's c la i m s due to his failure to properly present any of the federal claims to the state courts, R e sp o n d e n ts shall identify the defaulted claim(s) and provide a basis for the procedural d e f a u l t. Where Petitioner alleges ineffective assistance of counsel or insufficiency of the e v id e n c e and these claims must be addressed on their merits, the entire trial record must be f ile d . The entire trial record should also be filed if Respondents assert that a ruling of the trial court is entitled to a presumption of correctness or if they defend on grounds that a p a rticu lar ruling did not render the trial "fundamentally unfair" or that a particular error is "h a rm les s error." The Magistrate Judge recognizes that the burden of producing the state co u rt record is sometimes unduly onerous. However, it is clear that pursuant to the procedure g o v ern ing habeas corpus actions, "[t]he obligation to come forward with the state court r e c o rd is squarely upon the Respondent, not upon the petitioner." Bundy v. Wainwright, 808

F.2d 1410, 1415 (11th Cir. 1987). T h e parties are advised that no motion for summary judgment, motion to dismiss o r any other dispositive motions addressed to the petition may be filed by any party w ith o u t permission of the court. If any pleading denominated as a motion for summary ju d g m e n t, motion to dismiss or other dispositive motion is sent to the court, the court shall n o t file or otherwise treat the pleading as a dispositive motion until and unless further order o f the court. Petitioner is cautioned that all amendments to the petition should be a c c o m p a n ie d by a motion to amend and must be filed within ninety (90) days from the d a t e of this order. T h e Federal Rules of Civil Procedure require that Petitioner mail to the lawyer for R e sp o n d e n ts a true copy of anything which is sent to the court. Consequently, Petitioner is a d v is e d that he must mail to the Attorney General for the State of Alabama a true copy of a n yth in g which he sends to the court. Anything sent to the court should specifically state that it has been sent to the Attorney General for the State of Alabama. Failure to comply with the d ire c tiv e s of this order may result in delaying resolution of this case. Moreover, Petitioner is specifically CAUTIONED that his failure to file pleadings in conformity with the Federal R u l e s of Civil Procedure and/or the directives contained in this order will result in such p le a d in g s not being accepted for filing. The Clerk of Court IS DIRECTED to not accept for filing any pleadings submitted b y Petitioner which are not in compliance with either the Federal Rules of Civil Procedure o r the directives contained in this order.

Done, this 19 th day of April 2010.

/s/ Terry F. Moorer TERRY F. MOORER U N IT E D STATES MAGISTRATE JUDGE