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when he informed Petitioner the plea deal had been withdrawn.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