Dickinson v. Masan, et al (INMATE 2)

Filing 15

ORDER ON MOTION directing that, upon consideration of the 14 Motion and for good cause, it is ORDERED that Petitioner's 14 motion to amend is GRANTED; the Clerk is DIRECTED to mail copy of this order and the amended petition to the Attorney General for the State of Alabama and cause a copy of the same to be served upon Warden Mason; an answer to the amended petition shall be filed on or before October 17, 2011, as further set out. Signed by Honorable Judge Terry F. Moorer on 9/26/11. (scn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
_______________________________
SHAWN M. DICKINSON, #256 934,

*

Petitioner,

*

v.

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WARDEN MASAN, et al.,

3:11-CV-700-TMH
(WO)

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Respondents.
_______________________________

*

ORDER ON MOTION
Petitioner filed a motion to amend his petition. Upon consideration of the motion and
for good cause, it is
ORDERED that Petitioner’s motion to amend (Doc. No. 14) is GRANTED.
The Clerk is DIRECTED to mail copy of this order and the amended petition to the
Attorney General for the State of Alabama and cause a copy of the same to be served upon
Warden Mason. An answer to the amended petition shall be filed on or before October 17,
2011.
In filing their answer to the amended petition, Respondents should comply with the
provisions of Rule 5 of the rules governing § 2254 cases in the district courts which requires,
in pertinent part, that the answer
. . . indicate what transcripts (of pretrial, trial sentencing, and
post-conviction proceedings) are available, when they can be
furnished, and also what proceedings haven been recorded and

not transcribed.
Rule 5 also requires that Respondents attach to their answer such portions of the transcript
as they deem relevant. Additionally, Respondents should make specific reference to 28
U.S.C. § 2244(d)(1).1
Respondents are advised that the answer should contain a procedural history from
which the court can determine the applicability of 28 U.S.C. § 2244(d). In so doing,
Respondents shall provide the court with copies of documents indicating the disposition of
the case in the state appellate court, including but not limited to the case action summary
maintained by the trial court, all state court appellate decisions, the docket sheet(s) indicating
the dates of such decisions, and copies of the briefs filed in the state court. Respondents are
cautioned that if they fail to assert the timeliness issue it may be waived. Respondents
1

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.

shall also inform the court of whether this is the first habeas petition filed by Petitioner
challenging the conviction which is the basis for the instant petition. If Petitioner has
filed a previous federal habeas application challenging the conviction underlying the present
petition, Respondents shall provide the court with the disposition of such petition.2
Section 2254(d)(1) of the AEDPA significantly “modifies the role of federal habeas
courts in reviewing petitions filed by state prisoners.” Williams v. Taylor, 529 U.S. 362, 403
(2000). 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
on the merits in state court. Specifically, the statute allows this court to grant a writ of
habeas corpus only “if the relevant state-court decision was either (1) ‘contrary to ... clearly
established Federal law, as determined by the Supreme Court of the United States,’ or (2)
‘involved an unreasonable application of ... clearly established Federal law, as determined
by 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
relief only if the state court decision denying relief is ‘contrary to’ clearly established federal
law or is an ‘unreasonable application’ of federal law.” Brown v. Head, 272 F.3d 1308, 1313
(11th Cir. 2001). In the vast majority of cases, a federal district court will be faced with the
contention that the state court unreasonably applied federal law.

2

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,

however, does not render a subsequent petition successive.

In determining whether the state court’s decision is an
unreasonable application of the law set out in [applicable]
Supreme Court decisions, we need not decide whether we would
have reached the same result as the state court if we had been
deciding the issue in the first instance. Instead, we decide only
whether the state court’s decision of the issue is objectively
unreasonably. See Williams v. Taylor, 529 U.S. 362, 411, 120
S.Ct. 1495, 1522, 146 L.Ed.2d 389 (2000) (“Under
§2254(d)(1)’s ‘unreasonable application’ clause, then, a federal
habeas court may not issue the writ simply because that court
concludes in its independent judgment that the relevant statecourt decision applied clearly established federal law
erroneously or incorrectly. Rather, that application must also be
unreasonable.”); Brown v. Head, 272 F.3d 1308, [1313] (11th
Cir. 2001)(“It is the objective reasonableness, not the
correctness per se, of the state court decision that we are to
decide.”).
Wright v. Secretary for the Dept. of Corrections, 278 F.3d 1245, 1256 (11th Cir. 2002).
Additionally, 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
light 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
habeas 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
court relied in adjudicating Petitioner’s claims and the decision of the state court on
each claim. Moreover, if Petitioner has not raised his federal claims in the state courts and
has an available state court remedy wherein he may present such claims, Respondents shall

identify the remedy available to Petitioner. The court deems such action necessary as the law
requires 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
exhausted the remedies available in the courts of the State . . ."

28 U.S.C.

§

2254(1)(b)(1)(A). In addition, if this court is barred from reviewing a petitioner’s
claims due to his failure to properly present any of the federal claims to the state courts,
Respondents shall identify the defaulted claim(s) and provide a basis for the procedural
default.
Where Petitioner alleges ineffective assistance of counsel or insufficiency of the
evidence and these claims must be addressed on their merits, the entire trial record must be
filed. 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
particular ruling did not render the trial "fundamentally unfair" or that a particular error is
"harmless error." The Magistrate Judge recognizes that the burden of producing the state
court record is sometimes unduly onerous. However, it is clear that pursuant to the procedure
governing habeas corpus actions, "[t]he obligation to come forward with the state court
record is squarely upon the Respondent, not upon the petitioner." Bundy v. Wainwright, 808
F.2d 1410, 1415 (11th Cir. 1987).
The Clerk of Court IS DIRECTED to not accept for filing any pleadings submitted
by Petitioner which are not in compliance with either the Federal Rules of Civil Procedure
or the directives contained in this order.

Done, this 26th day of September 2011.

/s / Terry F. Moorer
TERRY F. MOORER
UNITED STATES MAGISTRATE JUDGE