Lacey v. Daniels et al
Filing
10
MEMORANDUM OPINION Signed by Judge William M Acker, Jr on 3/28/16. (SAC )
FILED
2016 Mar-28 PM 04:07
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
DANNY G. LACEY,
Petitioner,
v.
LEEPOSEY DANIELS, Warden, et
al.,
Respondents.
)
)
)
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Case No.:
SGC
1:13-cv-00301-WMA-
MEMORANDUM OPINION
Petitioner, Danny G. Lacey, has filed a petition for writ of
habeas corpus ("Petition") pursuant to 28 U.S.C. § 2254.
1).
(Doc.
Petitioner, through counsel, challenges his 2001 assault
convictions in the Circuit Court of Clay County, Alabama.
at 2-3).
has
(Id.
Respondents have answered (Docs. 4, 8), and Petitioner
replied
(Docs.
6,
9).
For
the
reasons
that
follow,
Petitioner's claims are due to be denied, either as procedurally
defaulted or as meritless.
I.
FACTS AND PROCEDURAL HISTORY
In 2000, Petitioner was charged with first- and seconddegree
assault.
Two
weeks
prior
to
trial,
the
prosecution
offered Petitioner a plea deal under which he would plead guilty
to two counts of third-degree assault and the prosecution would
recommend one year of imprisonment and $20,000 in restitution.
(Doc. 1 at 5-6).
Petitioner's trial counsel advised him to
1
reject the offer, stating he could secure more favorable terms
that involved a higher fine and probation but no incarceration.
(Id. at 6).
During a pretrial hearing, Petitioner alleges the
trial judge stated that, if found guilty on both counts, he would
receive a life sentence for first-degree assault and thirty-five
(Id.).1
years for second-degree assault.
Petitioner alleges his
trial counsel stated the judge was trying to intimidate him into
accepting the plea deal.
After
rejecting
the
(Id.).
plea
deal,
Petitioner
alleges
trial
counsel did not respond to communication until the eve of trial,
when he informed Petitioner the plea deal had been withdrawn.
(Doc. 1 at 6).
Petitioner also alleges his trial counsel failed
to prepare for trial, did not subpoena or call any witnesses, did
not move for a curative instruction or mistrial after an expert
witness testified about characteristics demonstrated by victims
of domestic abuse, and failed to object to the enhancement of
Petitioner's sentence as a habitual offender.
(Id.).
Although
Petitioner attended the first day of trial when the jury was
selected and impaneled, he "panicked" and did not appear for
subsequent
proceedings.
(Doc.
2
at
18;
Doc.
4-3
at
54).
Petitioner, who was addicted to methamphetamines at the time,
thought the judge would issue a bench warrant for failure to
1
The length of these sentences apparently reflects the trial judge's recognition
that Petitioner would be sentenced as a habitual offender under Alabama's
Habitual Felony Offender Act ("HFOA"), A LA. CODE § 13A-5-9.
2
appear.
(Doc. 4-3 at 54; see Doc. 2 at 18).
Instead, over
defense counsel's objection, the trial judge proceeded with trial
in absentia.
(Id. at 18-19)
The jury found Petitioner guilty of assault in the first
degree under ALA. CODE § 13A-6-20 and assault in the second degree
under ALA. CODE § 13A-6-21.
Petitioner
had
a
(Doc. 1 at 3; Doc. 4 at 2).
prior
felony
conviction,
Because
he
was
sentenced—pursuant to Alabama's HFOA—to life imprisonment on the
first-degree assault conviction and a concurrent twenty years of
imprisonment on the second-degree assault conviction.
3; Doc. 4-3 at 66-67; see Doc. 4-1 at 1).
(Doc. 1 at
Trial counsel filed a
notice of appeal on Petitioner's behalf but never filed a brief.
(Doc. 1 at 3).
petitioner
Petitioner retained new counsel who filed a
pursuant
to
Rule
32(f)
of
the
Alabama
Criminal Procedure (the "First Rule 32 Petition").
at 22).
of
(See Doc. 4-3
The First Rule 32 Petition sought only the right to file
an out-of-time appeal.
out-of-time
trial.
(See id.).
appeal,
counsel—appealed,
and
challenging
(See Doc. 4-1).
The trial court granted an
Petitioner—through
the
sufficiency
of
appellate
evidence
at
The Alabama Court of Criminal Appeals
affirmed both convictions on May 21, 2004.
1).
Rules
(Doc. 1 at 3; Doc. 4-
The Alabama Supreme Court denied certiorari, and Petitioner
did not seek certiorari from the United States Supreme Court.
(Doc.
1
at
3-4).
The
certificate
3
of
judgment
regarding
Petitioner's direct appeal issued on January 7, 2005.
(Doc. 4 at
3; Doc. 4-2).
On December 3, 2002, while Petitioner's direct appeal was
pending, he also filed—through counsel—a second Rule 32 petition
in the sentencing court (the "Second Rule 32 Petition").
at 10; Doc. 4-3 at 6-10; Doc. 4-4 at 2).
(Doc. 4
The sentencing court
stayed the Second Rule 32 Petition while the direct appeal was
pending.
(Doc. 4 at 10; Doc. 4-4 at 2).
As initially filed, the
Second Rule 32 Petition asserted Petitioner was entitled to a new
trial due to unspecified constitutional violations.
(Doc. 4-3
at 8).
On January 9, 2006, Petitioner amended the Second Rule 32
Petition to allege ineffective assistance of trial counsel and
due process violations under the principles enunciated in Giglio
v. United States, 405 U.S. 150 (1972).
(Doc. 4-3 at 16-55).
Regarding ineffective assistance of counsel, the amended Second
Rule 32 Petition alleged trial counsel was "severely impaired
during his trial" based on his subsequent one-year suspension
from practicing law, imposed in 2004 by the Alabama State Bar
Disciplinary Board.
(Doc. 4-3 at 35-36).
The amended Second
Rule 32 Petition alleged the problems leading to trial counsel's
suspension
also
Petitioner's
curative
resulted
in
ineffective
defense,
including
instruction
regarding
4
failure
the
assistance
to:
(1)
regarding
move
prosecution's
for
a
repeated
questioning of an expert witness concerning common behaviors of
domestic violence victims; (2) prepare for trial and interview
proposed witnesses; and (3) argue that Petitioner was not subject
to sentencing as a habitual offender.
(Doc. 4-3 at 36-45).
The
amended Second Rule 32 Petition also alleged the victim never
disclosed
her
intention
to
pursue
Petitioner, in violation of Giglio.
a
civil
lawsuit
against
(Doc. 4-3 at 45-46).
The sentencing court held a hearing on the Second Rule 32
Petition
on
November
18,
2009.
(Doc.
4-3
at
85-105).
On
December 7, 2009, Petitioner filed a brief containing additional
arguments regarding alleged ineffective assistance of counsel at
the sentencing phase.
(Doc. 4-3 at 62-64).
The brief: (1)
reasserted Petitioner's argument that trial counsel "failed to
question
felony"
or
otherwise
used
to
challenge
invoke
the
sentencing
assertion
as
a
of
habitual
the
prior
felon;
(2)
asserted arguments regarding trial counsel's failure to object to
evidence
of
considered,
prior
at
bad
acts;
sentencing,
(3)
evidence
argued
of
a
the
trial
subsequent
court
arrest
despite the prosecution's lack of detailed knowledge of that
arrest; (4) contended trial counsel failed to offer mitigating
circumstances at sentencing; (5) contended Petitioner was denied
the
right
of
a
direct
appeal;
and
(6)
claimed
the
maximum
sentences imposed were excessive in light of the prosecution's
5
failure to prove the existence of a prior adult felony.
(Doc. 4-
3 at 62-64).
On March 25, 2011, the sentencing court denied the Second
Rule 32
Petition
via
a
one
page
order.
(Doc.
4-3
at
75).
Petitioner appealed the denial of the Second Rule 32 Petition,
abandoning several of his claims, but pursuing his claim under
Giglio and his ineffective assistance of counsel claims based on
trial counsel's: (1) failure to move for a curative instruction
regarding the prosecution's repeated questioning of an expert
witness concerning common behaviors of domestic violence victims;
(2)
failure
witnesses;
to
and
prepare
(3)
for
failure
trial
interview
proposed
argue
to
and
that
Petitioner
was
subject to sentencing as a habitual offender.
not
(Doc. 4-4 at 2-3;
Doc. 4-3 at 77).
The Court of Criminal Appeals affirmed on October 21, 2011.
(Doc. 4-4).
First, the court noted that Petitioner had not
presented any evidence, either in briefing or at the evidentiary
hearing, in support of his claims.
Accordingly, the court found
Petitioner had failed to satisfy his burden under Rule 32 as to
any of his claims.
(Doc. 4-4 at 4).
Next, to the extent a
transcript of Petitioner's sentencing hearing could be construed
as evidence in support of his arguments regarding the application
of
the
proper.
HFOA,
the
court
found
(Doc. 4-4 at 5).
that
Petitioner's
sentence
was
The Court of Criminal Appeals also
6
found Petitioner had abandoned several claims on appeal and thus
did not consider those claims.
Supreme
Court
denied
(Doc. 4-4 at 4, 6).
certiorari,
judgment on February 10, 2012.
issuing
a
The Alabama
certificate
(Doc. 4-5 at 1).
The instant petition followed on February 8, 2013.
1).
It
asserts
claims
for
of
ineffective
assistance
(Doc.
of
trial
counsel, a claim under Giglio, and a claim that his trial in
absentia violated Petitioner's due process rights because he was
denied the right to confront his accusers.
(Id. at 5-11).
As to
ineffective assistance of counsel, the claims are based on: (1)
improper
advice
to
reject
the
guilty
plea;
(2)
failure
to
investigate the case; (3) failure to subpoena or call witnesses;
(4) failure to argue that Petitioner did not cause the scar on
the victim's arm—the basis for the first-degree assault charge;
(5)
failure
to
move
for
a
mistrial
or
request
a
curative
instruction regarding the prosecution's questioning of an expert
witness about characteristics of domestic violence victims; and
(6) failure to object to the application of Alabama's HFOA.
(Doc. 1 at 5-10).
As in the Second Rule 32 Petition, Petitioner
contended that trial counsel's substance abuse issues contributed
to all of his ineffective assistance.
(Id. at 5).
Following the initially-assigned magistrate judge's order to
show
cause,
Respondents
exclusively
argued
that
all
of
Petitioner's claims were time-barred under 28 U.S.C. 2244(d) but
7
preserved the right to assert additional defenses.
(Doc. 4).
Correctly concluding that the out-of-time direct appeal and the
tolling
effect
of
the
Second
Rule
32
Petition
rendered
Petitioner's claims timely, the subsequently-assigned magistrate
judge ordered Respondents to assert any additional defenses they
might
have.
(Doc.
7).
Respondents
Petitioner replied (Doc. 9).
responded
(Doc.
8)
and
Accordingly, this matter is now
ripe for adjudication.
II.
DISCUSSION
As explained below, all but one of the claims presented in
the
instant
courts.
petition
were
never
exhausted
in
Alabama
state
Those unexhausted claims are now procedurally defaulted.
The one claim that arguably was exhausted in state court is
without colorable merit under the standards applicable to federal
habeas challenges to state court convictions.
Each conclusion is
addressed in turn, below.
A.
Procedurally Defaulted Claims
A state prisoner is generally ineligible for federal habeas
relief unless he has first exhausted the remedies available in
the
courts
of
the
state
of
conviction.
See
28
U.S.C.
§
2254(b)(1)(A); Kelley v. Secretary for Dept. of Corr., 377 F.3d
1317, 1343-44 (11th Cir. 2004).
A state prisoner must first
present any federal constitutional or statutory claim through one
complete round of the state’s trial and appellate review process,
8
either on direct appeal or in state post-conviction proceedings.
O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Mauk v. Lanier,
484 F.3d 1352, 1357 (11th Cir. 2007).
Thus, an Alabama state
prisoner
claims
must
attempt
Supreme Court.
to
present
his
to
the
Alabama
Pruitt v. Jones, 348 F.3d 1355, 1359 (11th Cir.
2003); Smith v. Jones, 256 F.3d 1135, 1140-41 (11th Cir. 2001).
Where a claim has not been exhausted in the state courts and the
time in which to present the claim there has expired, the claim
is deemed procedurally defaulted and review in the federal courts
is generally precluded.
See Coleman v. Thompson, 501 U.S. 722,
735 n. 1 (1991); McNair v. Campbell, 416 F.3d 1291, 1305 (11th
Cir. 2005).
Procedural
default
may
be
excused
in
two
narrow
circumstances: (1) upon a showing of "cause" for the default and
actual "prejudice" as a result, Wright v Hopper, 169 F.3d 695,
703 (11th Cir. 1999); or (2) by a showing of actual innocence,
Schlupp v. Delo, 513 U.S. 298, 327 (1995).
In order to show the
cause necessary to excuse procedural default, a petitioner must
demonstrate that some objective factor external to the defense
impeded the effort to properly raise the claim in state court.
Wright, 169 F.3d at 793.
Here, all but one of Petitioner's
claims are procedurally defaulted, either because they were never
presented
in
state
court
or
because
presented.
9
they
were
not
properly
1.
Here,
Claims Never Presented in State Court
Petitioner
never
presented
several
of
the
claims
asserted in the instant petition to any Alabama state court.
Specifically, Petitioner never presented—either on direct appeal
or in his Rule 32 petitions—any claim regarding: (1) how trial in
absentia
violated
his
due
process
rights
to
confront
his
accusers; (2) ineffective assistance of counsel due to rejection
of the plea deal; and (3) ineffective assistance of counsel due
to failure to argue the victim's scars were caused by someone
other than Petitioner.
These claims are plainly procedurally
defaulted for failure to exhaust available state court remedies.
Petitioner contends his claim for ineffective assistance of
counsel based on the rejection of the plea agreement is not
procedurally defaulted for at least two related reasons.
at
11).
First,
Petitioner
contends
he
presented
(Doc. 9
the
facts
forming the basis for this claim to the sentencing court in 2006
via
the
amended
Second
Rule
32
Petition.
Next,
Petitioner
contends this claim was unavailable until March 21, 2012, when
the Supreme Court explicitly stated that the right to effective
assistance of counsel extended to plea negotiations in cases
factually similar to Petitioner's.
(Doc. 9) (citing Lafler v.
Cooper, 132 S. Ct. 1376 (2012); Missouri v. Frye, 132 S. Ct. 1399
(2012)).
These Supreme Court decisions were released six years
after Petitioner filed his Second Rule 32 Petition and one month
10
after its denial became final by the Alabama Supreme Court's
issuance of a certificate of judgment. Accordingly, Petitioner
contends
it
was
"impossible"
to
assert
this
ineffective
assistance claim in state court collateral review proceedings.
(Doc. 9 at 13).
Petitioner's argument is an attempt to show cause for his
procedural default on his claim for ineffective assistance of
counsel regarding plea negotiations.
This attempt fails.
First,
Petitioner is correct that he described the factual basis for his
ineffective assistance of counsel claim in an unsworn statement
attached to his amended Second Rule 32 Petition.
53-55).
it
was
(Doc. 4-3 at
However, neither the statement, nor the brief to which
attached—prepared
and
filed
by
Petitioner's
retained
appellate counsel—asserts a claim for ineffective assistance of
counsel.
the
Petitioner's retained Rule 32 counsel also recounted
facts
surrounding
the
plea
negotiations
evidentiary hearing on the Second Rule 32 Petition.
during
the
(Doc. 4-3 at
93-94).
During the hearing, counsel explained these facts in the
context
of
ineffective
assistance
of
counsel.
(Id.).
The
sentencing court's order denying the Second Rule 32 Petition did
not
explicitly
address
this
claim,
but
Petitioner's
retained
counsel did not appeal on either the merits of the claim or the
sentencing court's failure to specifically address it.
To the
extent Petitioner contends the trial court erred in failing to
11
address this claim, his state court remedy was an appeal of that
issue to the Alabama Court of Criminal Appeals.
See Robinson v.
State, 6 So. 3d 556, 556-57 (Ala. Crim. App. 2008) (remanding
Rule 32 claims to sentencing court where it did not address
defendant's claim for ineffective assistance of counsel based on
advice to reject plea deal).
Next,
to
the
extent
Petitioner
contends
his
ineffective
assistance claims arising from plea negotiations were unavailable
until
after
the
Supreme
argument fails.
Court
issued
Frye
and
Lafler,
this
First, as noted above, Petitioner's retained
counsel presented this very argument during the hearing on the
Second Rule 32 Petition.
Next, the Alabama Court of Criminal
Appeals' remand of a Rule 32 Petition for failure to address
similar ineffective assistance claims belies any contention that
Petitioner was somehow precluded from presenting this claim prior
to 2012. See Robinson, 6 So. 3d at 556-57.
Indeed, the Alabama
Court of Criminal Appeals issued Robinson in 2008, which was
prior
to:
(1)
the
hearing
on
Petitioner's
Second
Rule
32
Petition; (2) Petitioner's final amendment to his Second Rule 32
Petition; and (3) the sentencing court's denial of the Second
Rule 32 Petition.2
Aside
from
the
more
practical
concerns
discussed
Petitioner's argument is also legally deficient.
2
above,
The Supreme
It is worth noting that Petitioner amended his Second Rule 32 Petition at
least twice to assert other ineffective assistance claims.
12
Court
has
long-recognized
that
the
Sixth
Amendment
right
to
counsel, as defined in Strickland v. Washington, 466 U.S. 668
(1984),
applies
to
"ineffective
arising out of the plea process."
57 (1985).
assistance
of
counsel
claims
Hill v. Lockhart, 474 U.S. 52,
Alabama courts have recognized such claims for nearly
three decades.
See, e.g., McKinney v. State, 511 So. 2d 220, 222
(Ala. 1987).
Contrary to Petitioner's arguments that Lafler and
Frye
new
created
claims
previously
unavailable
to
him,
the
Eleventh Circuit has described those decisions as "merely an
application of the Sixth Amendment right to counsel, as defined
in Strickland, to a specific factual context."
F.3d 930, 932 (11th Cir. 2012).
In re Perez, 682
Frye held that defense counsel
has a duty to communicate formal plea offers and that failure to
do so will generally constitute deficient representation.
132 S. Ct. at 1408.
Frye,
Lafler provided the test for evaluating
Strickland's prejudice prong in the context of plea negotiations.
Lafler, 132 S. Ct. at 1391.
However, the Court's clarification
of Strickland's application to ineffective assistance of counsel
claims
arising
from
plea
negotiations
does
not
mean
that
Petitioner was somehow precluded from presenting his claims via a
Rule 32 Petition.
Accordingly, neither Lafler nor Frye provide
the cause needed to excuse Petitioner's procedural default on
this claim.
13
Finally, to the extent Petitioner contends his procedural
default
of
his
plea
negotiation-related
claim
is
excused
Martinez v. Ryan, 132 S. Ct. 1309 (2012), he is mistaken.
Martinez,
the
Supreme
Court
held
that
a
state
prisoner
by
In
can
establish cause for procedural default on ineffective assistance
claims
where:
initial-review
appointed;
or
collateral
(1)
the
collateral
(2)
petitioner
proceedings
appointed
proceeding
was
retained
review.
counsel
on
unrepresented
because
counsel
in
in
the
was
counsel
the
ineffective
Martinez, 132 S. Ct. at 1318.
by
was
not
initial-review
under
Strickland.
Here, Petitioner was represented
direct
appeal
(See Doc. 4-3 at 85-86).
and
through
collateral
While the petition does allege
that trial counsel was ineffective in advising Petitioner to
reject the plea agreement, it does not allege that Petitioner's
retained appellate or Rule 32 counsel was ineffective in failing
to
assert
Petitioner's
this
claim
retained
in
Rule
state
32
court.
counsel
As
did
noted
present
above,
the
plea
negotiation claims during the evidentiary hearing but did not
pursue the claim on appeal.
Indeed, while such a claim was
plainly available, as evidenced by arguments presented by Rule 32
counsel at the hearing, it can hardly be said that failure to
pursue
such
claims
on
deficient representation.
pursued this argument.
appeal
amounted
to
constitutionally
Even if it could, Petitioner has not
Accordingly, Petitioner's pleadings here,
14
which were prepared and filed by retained counsel—counsel which
did
not
represent
Petitioner
in
state
court
proceedings—are
insufficient to excuse his procedural default under Martinez.
For the foregoing reasons, Petitioner's claims that were not
presented
to
the
appropriate
state
courts
are
procedurally
defaulted.
2.
In
order
to
Claims Denied on Independent State Grounds
exhaust
state
court
remedies,
the
Eleventh
Circuit has explained that a state prisoner must:
comply with all “independent and adequate” state
procedures,
or
else
the
petitioner
will
have
procedurally defaulted on that claim.
See Wainwright
v. Sykes, 433 U.S. 72, 86-87 (1977); Bailey v. Nagle,
172 F.3d 1299, 1302-03; § 2254(b), (c).
Where a
petitioner has not “properly ... presented his claims
to the state courts,” he will have “procedurally
defaulted his claims” in federal court.
O’Sullivan,
526 U.S. at 848. To determine whether a state court’s
procedural ruling constitutes an independent and
adequate state rule of decision, this court has set
forth the following three-part test: (1) “the last
state court rendering a judgment in the case must
clearly and expressly state that it is relying on state
procedural rules to resolve the federal claim without
reaching the merits of that claim”[; (2)] the state
court’s decision must rest solidly on state law
grounds,
and
may
not
be
“intertwined
with
an
interpretation of federal law[;]” and (3) the state
procedural rule must not be applied in an arbitrary or
unprecedented fashion.
Judd v. Haley, 250 F.3d 1308,
1313 (11th Cir. 2001).
Mason v. Allen, 605 F.3d 1114, 1119-20 (11th Cir. 2010)(emphasis
in original); see Ferguson v. Sec'y for Dep’t of Corr., 580 F.3d
1183, 1212-13 (11th Cir. 2009).
15
Here,
Petitioner
presented
some
form
of
his
remaining
federal habeas claims in conjunction with his Second Rule 32
Petition.
These claims include Petitioner's due process claim
under Giglio, as well as claims for ineffective assistance of
trial counsel alleging: (1) failure to investigate the case; (2)
failure to subpoena or call witnesses; and (3) failure to move
for a mistrial or request a curative instruction regarding the
prosecution's
questioning
of
an
expert
characteristics of domestic violence victims.
witness
about
The Alabama Court
of Criminal Appeals affirmed denial of these claims based on
Petitioner's failure to present any evidence to support them.
(Doc. 4-4 at 4).
After noting Petitioner's burden to prove his
Rule 32 claims, the appellate court found that his failure to
present any evidence doomed his claims under Rule 32.3.
(Id.).
The Alabama Court of Criminal Appeals was the last state
court to address Petitioner's claims, and it affirmed dismissal
of those claims based solely on the Alabama Rules of Criminal
Procedure and without addressing the merits.
(Doc. 4-4 at 4).
In doing so, the Court of Criminal Appeals relied on Alabama
procedural rules and noted that neither arguments presented by
counsel
evidence
nor
Petitioner's
required
under
unsworn
Rule
statement
32.3.
constituted
(Id.).
the
There
no
is
indication the court's application of Rule 32.3 was arbitrary or
unprecedented.
Accordingly,
the
16
Court
of
Criminal
Appeals'
affirmance
was
an
independent
and
adequate
state
rule
of
decision, and these claims are procedurally defaulted for failure
to properly present them in state court.
Mason, 605 F.3d at
1119-20.
B.
Application of Alabama's HFOA.
Finally, the Alabama Court of Criminal Appeals reached the
merits of Petitioner's claim for ineffective assistance of trial
counsel based on failure to object to sentencing under the HFOA.
(Doc. 4-4 at 4-6).
the
sentencing
Because Petitioner attached the transcript of
hearing
as
an
exhibit
to
his
Second
Rule
32
Petition, the Alabama Court of Criminal Appeals analyzed whether
it supported his claim for ineffective assistance of counsel.
(Doc. 4-4 at 4-5).
The appellate court found Petitioner was
properly sentenced under Alabama's HFOA.
Specifically, the court
found Petitioner had one prior adult felony conviction, making
him eligible for an enhanced sentence.
(Doc. 4-4 at 5).
The
court further found that the sentencing court properly applied
the
HFOA
to
Petitioner's
first-degree
resulting in a life sentence.
assault
conviction,
Under these circumstances, the
Court of Criminal Appeals held that any objection to sentencing
under the HFOA would have been futile.
(Doc. 4-4 at 6).
A federal court reviewing a habeas petitioner's claims on
the merits is constrained by the highly deferential standard of
review provided for in the Anti-Terrorism and Effective Death
17
Penalty Act (“AEDPA”); see 28 U.S.C. § 2254; Williams v. Taylor,
529 U.S. 362, 402-03 (2000).
Federal habeas relief under § 2254
is precluded unless 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 law, as determined by the Supreme Court of the United
States,” 28 U.S.C. § 2254(d)(1), or (2) “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).
Further,
factual
determinations
correct,
subject
to
being
by
state
rebutted
convincing evidence.
only
courts
are
upon
showing
a
presumed
by
clear
and
28 U.S.C. § 2254(e)(1).
The Sixth Amendment affords a criminal defendant the right
to “the Assistance of Counsel for his defence.”
amend. VI.
U.S. Const.
“It has long been recognized that the right to
counsel is the right to effective assistance of counsel.”
McMann
v. Richardson, 397 U.S. 759, 771 n.14 (1970); see also Cuyler v.
Sullivan, 446 U.S. 335, 344 (1980).
A claim of ineffective
assistance of counsel can be established upon a showing the (1)
“counsel’s
performance
was
deficient,”
and
(2)
“that
the
deficient performance prejudiced the defense” because the “errors
were so serious as to deprive the defendant of a fair trial, a
trial whose result is reliable.”
U.S. 668, 687 (1984).
Strickland v. Washington, 466
In a habeas corpus action, the petitioner
18
generally
carries
the
burden
to
establish
both
components.
Lawhorn v. Allen, 519 F.3d 1272, 1293 (11th Cir. 2008) (citing
Atkins v. Singletary, 965 F.2d 952, 958-59 (11th Cir. 1992)).
The Eleventh Circuit has explained:
To establish a constitutionally deficient performance,
the defendant must “identify the acts or omissions ...
that are alleged not to have been the result of
reasonable
professional
judgment”
to
“show
that
counsel’s representation fell below an objective
standard of reasonableness” and “outside the wide range
of professionally competent assistance.” Strickland,
466 U.S. at 687, 690.
The “highly deferential”
reviewing court must “indulge a strong presumption that
counsel’s conduct falls within the wide range of
reasonable professional assistance,” id. at 689, and
recognize that cases warranting the grant of habeas
relief based on an ineffective assistance claim “are
few and far between.” Chandler v. United States, 218
F.3d 1305, 1313 (11th Cir. 2000) (en banc) (quotation
and citation omitted). ... “[T]he defendant must
overcome the presumption that, under the circumstances,
the challenged action ‘might be considered sound trial
strategy.’ ” Strickland, 466 U.S. at 689. ... Because
“it is all too easy to conclude that a particular act
or omission of counsel was unreasonable in the harsh
light of hindsight,” Bell v. Cone, 535 U.S. 685, 702
(2002), we must make “every effort ... to eliminate the
distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to
evaluate the conduct from counsel’s perspective at the
time.” Strickland, 466 U.S. at 689.
Lawhorn, 519 F.3d at 1293-94.
Once constitutionally deficient performance is established,
the petitioner generally must also prove prejudice.
To do so the
petitioner must convince the court “that there is a reasonable
probability that, but for the counsel’s unprofessional errors,
the
result
of
the
proceeding
would
19
have
been
different.
A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.”
Strickland, 466 U.S. at 694.
While
a petitioner need not show that counsel’s deficient conduct “more
likely than not altered the outcome of the case,” it is not
enough for the petitioner to show that counsel’s errors merely
had “some conceivable effect on the outcome of the proceeding.”
Id., 466 U.S. at 693.
Here, Petitioner cannot demonstrate either requirement to
show
ineffective
assistance
of
counsel
under
Strickland.
Petitioner does not contend that the Alabama Court of Criminal
Appeals committed any errors of fact or law in affirming the
dismissal
of
his
HFOA-related
claims.
The
petition
baldly
asserts that Petitioner's trial counsel performed deficiently by
failing to: (1) object to sentencing enhancement under Alabama's
HFOA; and (2) require "properly certified proof of the prior
conviction."
(Doc. 1 at 6).
Notably, Petitioner does not assert
he was somehow not subject to the HFOA or that his sentence
exceeded
the
Petitioner's
under
the
statutory
range.
contentions—that
HFOA
Accordingly,
failure
constitutes
to
object
even
to
constitutionally
accepting
sentencing
deficient
performance—as true, he has not stated a claim for ineffective
assistance under Strickland, because he has not even attempted to
show how it prejudiced him.
Moreover, because Petitioner does
not contend that he was improperly sentenced under the HFOA, he
20
has failed to show deficient performance.
deficient
for
sentencing.
failing
to
raise
a
Trial counsel was not
meritless
objection
at
More importantly for federal habeas purposes, the
Alabama Court of Criminal Appeals' affirmance of the sentencing
court's denial of Petitioner's Rule 32 ineffective assistance
claim
was
neither
contrary
to
federal
law
nor
unreasonable determination of the facts presented.
based
on
an
28 U.S.C. §
2254(d).
For the foregoing reasons, Petitioner's federal habeas claim
for ineffective assistance of trial counsel based on sentencing
under Alabama's HFOA is due to be denied.
III. CERTIFICATE OF APPEALABILITY
In
accordance
Proceedings,
a
with
Rule
certificate
11
of
of
the
Rules
appealability
Governing
is
DENIED.
2254
A
certificate of appealability may issue “only if the applicant has
made a substantial showing of the denial of a constitutional
right.”
28 U.S.C. § 2253(c)(2).
To make such a showing, a
“petitioner must demonstrate that reasonable jurists would find
the
district
court’s
assessment
of
the
constitutional
claims
debatable or wrong,” Slack v. McDaniel, 529 U.S. 473, 484 (2000),
or
that
“the
issues
presented
were
adequate
to
deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537
U.S. 322, 336 (2003) (internal quotation omitted).
21
Based on the
authority discussed above, a certificate of appealability is not
warranted here.
IV.
CONCLUSION
For
all
of
the
foregoing
reasons,
all
of
Petitioner's
federal habeas claims will be denied, either as procedurally
defaulted or as meritless.
A separate order will be entered.
DONE this 28th day of March, 2015.
_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE
22
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