Wilkerson v. Hetzell et al
MEMORANDUM OPINION Signed by Judge William M Acker, Jr on 9/30/14. (SAC )
2014 Sep-30 PM 04:13
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
TIMOTHY EARL WILKERSON,
WARDEN GARY HETZELL and
THE ATTORNEY GENERAL OF THE
STATE OF ALABAMA,
Timothy Earl Wilkerson seeks habeas corpus relief from this court concerning his conviction
of capital murder in Jefferson County Circuit Court. See 28 U.S.C. § 2254. (Doc. 1).1 The
magistrate judge assigned this matter conducted a preliminary review and found that the petition is
due to be denied. (Doc. 19). Wilkerson has filed objections to that determination.
The petitioner was convicted of capital murder in the death of Anthony White following a
jury trial. (Ex. A at 7, 19, 25-26: Tr. 13).2 He was sentenced on May 7, 2007, to life imprisonment
without parole. (Id. at 8, 20). The conviction is premised on a violation of ALA. CODE § 13A-540(17).3 In the present petition and amended petition, he asserts (1) that his trial counsel were
References herein to “Doc. ___” are to the numbers assigned each document by the Clerk of the Court.
References herein to “Ex. ___” are to the exhibits submitted by the respondents in their response at
documents 10-1 to 10-39. The page references are to the original exhibit pagination and not the court’s electronic
numbers. References to “Tr. __” are to the trial transcript found at document 10-9 at 43 of 49 through document 1015.
The statute provides:
(a) The following are capital offenses:
ineffective in failing to object when his character witnesses were cross-examined about specific acts
that had not been previously admitted into evidence and the pathologist was allowed to testify about
the victim’s toxicology; (2) his due process and equal protection rights were violated because the
murder statute was unconstitutionally vague, insufficiently narrow, and “is being applied to his case
in an arbitrary and capricious manner”; (3) his sentence is disproportionate and cruel and unusual
punishment; and (4) the legislature did not intend for the murder statute to apply to the facts of his
case. (Petition at 10-124 & Am. Pet.5 at 1). After the magistrate judge found the claims to be
without merit, the petitioner objected to the determinations related to the statute of conviction (ALA.
CODE § 13A-5-40(17)). Specifically, he objects as follows:
The magistrate judge incorrectly found that the petitioner was challenging the
conviction premised on the argument that the conviction was contrary to the
intent of the Alabama legislature;
The statute of conviction was intended to apply to prosecutions of gang
members in drive-by-shootings;
The legislative finding that this portion of the statute was intended to apply
to gangs “was made law” in “In re Corwin Russell, No. 10-14551-F; Fondren
v. Allen, [2012 WL 3627759] (N.D. Ala. Aug. 20, 2012)], and Johnson v.
Warden Hooks, et al., 03-cv-2913-IPJ”;
The magistrate judge failed make a determination of whether the Court of
Criminal Appeals decision was contrary to law or involved an unreasonable
application of clearly established Supreme Court precedent or was an
unreasonable determination of the facts in light of the evidence;
The magistrate judge’s findings that “murder is not a Constitutionally
(17) Murder committed by or through the use of a deadly weapon while the victim is in a vehicle.
ALA. CODE § 13A-5-40(a)(17).
The petition is located at document 1 in the file.
The amended petition is found at document 14.
protected activity” and that “[i]t is rational for the legislature to recognize
‘killers whose victims are killed while in a vehicle as a separate class, and
making that offense punishable by either life imprisonment or the death
penalty constitute errors of law; and
The magistrate judge’s determination that “the statute is constitutional and
properly elevates the murder of a person in a vehicle through the use of a
deadly weapon to a capital offense” constitutes an error in fact and law.
(Doc. 20 at 1-4). He also complains that his sentence is improper because his case was “never
elevated to Capital murder because the murder was not committed under the aggravating
circumstances required by [law].” (Id. at 5). Finally, he claims “that even if he is not entitled to
relief on all his claims, his habeas corpus petition must be reviewed according to the substantive
change in law” based on the decision of United States District Judge Inge P. Johnson in Johnson v.
Warden Hooks, 03-cv-02913-IPJ and the decision in Smith v. Ritter, 811 F.2d 878 (11th Cir. 1998).6
The petitioner is entitled to no relief in this case. The underlying facts concerning the offense
are clear. The petitioner had a disagreement with the victim, he then went to the trunk of his car,
took out an S.K.S. rifle, ran to the passenger side of the victim’s car and shot him in the head, liver
and chest. The police were called and the petitioner left the scene. The police recovered the
petitioner’s vehicle and found the loaded S.K.S. rifle and a magazine clip with 32 live rounds. The
petitioner asserted that the shooting was done in self defense. The jury rejected his defense and
found him guilty. (R. 19 at 4-6).
In his federal habeas petition, the petitioner challenges the murder statute under which he was
convicted. The magistrate judge recommended the challenge be denied. He stated, in pertinent part,
The correct cite appears to be Smith v. Ritter, 811 F.2d 1398 (11th Cir. 1987).
Wilkerson next challenges Alabama Code Section 13A-5-40(a)(17), which
makes a murder committed by or through the use of a deadly weapon while the
victim is in a vehicle a capital offense. ALA. CODE § 13A-5-40(a)(17). He asserts
due process and equal protection challenges premised on the argument that the statute
purportedly is (1) “unconstitutionally vague,” (2) “insufficiently narrow,” and (3)
being applied to his case in an arbitrary and capricious manner. (Am. Pet. at 1-2).
He also asserts that his sentence is disproportionate and cruel and unusual and that
the legislature did not intend for the statute to apply to the facts of his case. (Id.)
Wilkerson offers no facts or argument in support of his claims. (Id.) The
respondents retort that he is entitled to no relief because he has not shown that the
determinations of the Alabama Court of Criminal Appeals were contrary to, or an
unreasonable application of, clearly established Federal law. (Doc. 17 at 2). This
These claims were presented on direct appeal. The Court of Criminal
Appeals rejected each. That court deduced that Wilkerson’s challenges that the
statute was vague, overly broad, and not intended for facts such as those in his case
were premised on the assertion that his conviction was contrary to the Alabama
Legislature’s intent that the statute apply only if the deadly weapon was fired or
otherwise used within or from a vehicle. (Ex. E at 2-3). The court rejected this
contention, noting that the cited legislative intent [– concerning gangs – ] applied to
§ 13A-5-40(a)(18) not (a)(17). (Ex. E at 3). It further held that this legislative
resolution was “not law.” (Id. at 4). Wilkerson offers nothing substantive to
challenge the determination of the Court of Appeals. The prosecution, conviction,
and sentencing of Wilkerson under this statute does not violate any law – state or
To the extent he asserts the statute is being applied in an arbitrary and
capricious manner, he again offers no facts or law in support of this contention. The
Court of Appeals held that the classification of the intentional murder of a person in
a vehicle is not arbitrary or capricious for two reasons. First, “[m]urder is not a
constitutionally protected activity.” (Ex. E at 4). Second, it is rational for the
legislature to recognize “killers whose victims are killed while in a vehicle as a
separate class, and making that offense punishable by either life imprisonment or the
death penalty.” (Id.) These conclusions are neither contrary to nor an unreasonable
application of clearly established Federal law. Wilkerson is entitled to no relief.
Finally, the petitioner asserts the statute is unconstitutional because his
sentence is disproportionate and cruel and unusual. (Doc. 14 at 1). This again is a
conclusory claim. The Alabama Court of Criminal Appeals rejected this challenge,
stating that “the statute is constitutional and properly elevates the murder of a person
in a vehicle through the use of a deadly weapon to a capital offense.” (Ex. E at 5).
This conclusion, again, is neither contrary to nor an unreasonable application of
clearly established Federal law. See 28 U.S.C. § 2254(d). Wilkerson is entitled to
(R. 19 at 14-16). It is these determinations to which the petitioner objects. The court finds his
objections are without merit.
The petitioner’s claims in essence revolve around his contention that he was improperly
convicted of capital murder for a crime not authorized under Alabama law. He is incorrect. As
determined by the Alabama Court of Criminal Appeals, and noted by the magistrate judge, the
Alabama State Legislature has clarified that Section 13A-5-40(18) of the murder statute, making it
a capital offense to shoot a weapon within or from a vehicle, was intended to reach gang-related
drive-by killings. (See Doc. 10-19 at 3 of 10; Doc. 19 at 14-16). However, that legislative resolution
did not reference Section 13A-5-40(17) under which the petitioner was convicted. See also Fondren,
2012 WL 3627759, at *22, n.2. Additionally, the resolution, even if applicable to the statute
underlying the petitioner’s conviction – which it is not –, does not have the force and effect of law.
Id. It does not preclude the prosecution of the petitioner for his actions. Finally, the cases cited by
the petitioner are inapposite. His objections to the magistrate judge’s findings and conclusion are
Having carefully reviewed and considered de novo all the materials in the court file,
including the magistrate judge’s report and recommendation and the petitioner’s objections thereto,
the Court is of the opinion that the magistrate judge’s findings are due to be and are hereby
ADOPTED and his recommendation is ACCEPTED.
The petitioner’s objections are
OVERRULED. As a result, the petition for writ of habeas corpus is due to be denied and this action
is due to DISMISSED WITH PREJUDICE. Furthermore, because the petition does not present
issues that are debatable among jurists of reason, a certificate of appealability is also due to be
DENIED. See 28 U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 484-85 (2000); Rule 11(a),
RULES GOVERNING § 2254 PROCEEDINGS. A separate Final Judgment will be entered.
DONE, this the 30th day of September, 2014.
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE
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