Nichols v. Wise et al

Filing 15

MEMORANDUM OPINION. Signed by Judge Sharon Lovelace Blackburn on 3/17/2014. (KAM, )

FILED
2014 Mar-17 PM 03:27
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ANTONIO NICHOLS,
Petitioner,
vs.
CARTER DAVENPORT, Warden;
ATTORNEY GENERAL FOR THE
STATE OF ALABAMA,
Respondents.

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CASE NO. 2:10-CV-2653-SLB-JEO

MEMORANDUM OPINION
This is a habeas corpus case brought pursuant to 28 U.S.C. § 2254. (Doc. 1.)1 It was
filed by Antonio Nichols, an Alabama state prisoner, who was then acting pro se, against
Warden of the St. Clair County facility where petitioner is incarcerated,2 and the Alabama
State Attorney General. (Doc. 1.) He has since retained counsel, (see doc. 5), who filed an
amendment to the Petition., (doc. 6.) Respondents answered, denying that Nichols is entitled
to relief. (Doc. 9.) Nichols filed materials in reply thereto, (docs. 12, 14), and the action is

1

Reference to a document number, [“Doc. ___”], refers to the number assigned to each
document as it is filed in the court’s record.
2

Petitioner originally named J.D. Wise, in his capacity as the Warden of the St. Clair
Correctional Facility where Petitioner is imprisoned, as a respondent. See Rumsfeld v.
Padilla, 542 U.S. 426, 435 (2004); Rule 2(a), RULES GOVERNING § 2254 CASES. Since the
filing of the petition, Wise has been succeeded in that position by Carter Davenport. http://
www. doc. alabama. gov facility. aspx?loc=21. Accordingly, Davenport is substituted for
Wise as a matter of law. See Fed. R. Civ. P. 25(d).

now ripe for decision. Upon consideration, the court concludes that the habeas petition is
due to be denied.
I.

BACKGROUND
In May 2006, Nichols was indicted in the Circuit Court of Jefferson County, Alabama,

on the following charges: (1) trafficking in cocaine in violation of Ala. Code § 13A-12-231;
(2) possession of marijuana without the required excise tax stamp in violation of Ala. Code
§ 40-17A-4; (3) possession of marijuana in the first degree, in violation of Ala. Code § 13A12-213; and (4) two counts of attempted murder, see Ala. Code §§ 13A-6-2 and 13A-4-2.
The State moved to consolidate the associated indictments and to join Nichols’s case for
purposes of trial with those of three co-defendants: Alando McKenzie, Carlos Ivy, and
Danny Woodson. (C. 41, 43.)3 The trial court granted those motions in September 2006.
(C. 10.)

Ultimately, the case went to trial in June 2007 against only Nichols and

McKenzie, who was also charged with trafficking in cocaine, possession of marijuana in the
first degree, and a marijuana tax stamp offense. (R. 5-6.)4 Just before trial, the State dropped
the tax stamp charges against both defendants, (R. 11), and Nichols’s counsel moved to
suppress all of the physical evidence that would be offered against his client, (R. 9-10). In
3

Citations to “C. __” are to the page of the “Clerk’s Record” in the State trial court
proceeding. The Clerk’s Record is contained within Docs. 9-1 (C. 1-97), 9-2 (C. 98-196),
9-3 (C. 197-224), 9-4 (C. 225-254), 9-5 (C. 255-275), 9-6 (C. 276-300), and 9-7 (C. 301326.)
4

Citations to “R. __” are to the page of the “Record Transcript” in the State trial court
proceeding. The Record Transcript is contained within Docs. 9-7 at pp. 27-96 (R. 1-70), 9-8
(R. 71-270), and 9-9 (R. 271-308.)
2

support, Nichols argued that the search warrant authorizing the search pursuant to which the
evidence seized by police was not supported by probable cause. (R. 10, 21.) After an
evidentiary hearing, the court summarily denied the motion to suppress. (R. 22.)
At the conclusion of the trial, the trial court instructed the jury on the charges against
Nichols: (1) trafficking in cocaine; (2) possession of cocaine, as a lesser-included offense
of trafficking; (3) possession of marijuana in the first degree; (4) possession of marijuana in
the second degree, as a lesser included offense of first-degree possession; (5) attempted
murder; and (6) attempted assault in the first degree, as a lesser included offense of attempted
murder. (R. 239-242, 255-275.) Nichols was convicted on the cocaine trafficking count and
both attempted murder counts, as well as possession of marijuana in the second degree. (C.
14, 67-68.) The trial court sentenced Petitioner under the Alabama Habitual Felony Offender
Act, Ala. Code § 13A-5-9, to life imprisonment without parole on the trafficking charge and
on each of the two attempted murder counts, and to 12 months imprisonment on the
marijuana possession count. Petitioner appealed, challenging the sufficiency of the evidence
to support his conviction for trafficking and attempted murder. The Alabama Court of
Criminal Appeals rejected those claims in a 12-page, unpublished memorandum opinion and
affirmed the judgment below. (Doc. 9-11.) The Alabama Supreme Court denied certiorari
review.
Petitioner thereafter filed a timely pro se petition for post-conviction relief in the state
trial court pursuant to Rule 32 of the ALABAMA RULES OF CRIMINAL PROCEDURE. (Doc. 9-13

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at 83-107.) Nichols raised several claims alleging ineffective assistance of counsel in
violation of the Sixth Amendment. First, he argued that “he was denied the effective
assistance of counsel on direct appeal and at trial where counsel failed to know the applicable
law as it applied to [his] case and . . . that, due to the facts adduced at trial, reckless
endangerment was a lesser-included offense of the charged attempted murder.” (Id. at 91.)
Petitioner stated, “Counsel’s failure to request the jury be charged on the lesser-included
offense caused Nichols to be convicted of attempted murder (the greater offense) based on
facts that supported the lesser-included offense of reckless endangerment.” (Id.) He further
argued that his appellate counsel was ineffective for failing to raise a claim on direct appeal
based on trial counsel’s ineffectiveness in this same regard. (Id. at 91, 93.) In his second
Rule 32 claim, Petitioner contended that his appellate counsel was ineffective for failing to
raise a claim on direct appeal challenging the trial court’s denial of his motion to suppress
evidence based on the Fourth Amendment. (Id. at 94-95.) Third and finally, Petitioner
argued in his Rule 32 petition that “he was denied effective assistance of counsel and a fair
trial where counsel failed to object to joinder and move to sever [Nichols] case from that of
[his] co-defendant and [that] appellate counsel was [also] ineffective for failing to raise [such
a claim] on direct appeal.” (Id. at 97.) After the state trial court rejected these claims without
a hearing, (id. at 35-37), Petitioner appealed to the Alabama Court of Criminal Appeals, (see
doc. 9-14.) That court affirmed the denial of Rule 32 Relief (Doc. 9-15), and the Alabama
Supreme Court denied certiorari.

4

Nichols timely filed his instant § 2254 federal habeas application in this court. In that
pro se petition, he raised the following issues:
(1)

“Whether the State made a prima facie case as to trafficking in cocaine
against Nichols”;

(2)

“Whether the State made a prima facie case as to attempted murder
charges against Nichols”;

(3)

“Appellate counsel was ineffective for not challenging trial counsel’s
failure to request jury instructions on [the] lesser-included offense [of
reckless endangerment]”;

(4)

“Appellate counsel was ineffective for not challenging trial counsel’s
failure to object to joinder of [Nichols’s] case [with that of his] codefendant”; and

(5)

“Appellate counsel was ineffective for failing to raise the denial of his
motion to suppress the evidence, due to [the in]sufficiency of the search
warrant”;

(Doc. 1 at 5, 8-9.) After counsel appeared on his behalf, Nichols filed an amendment to the
petition, adding or otherwise clarifying that he is raising a claim based on the ground that his
appointed trial counsel was constitutionally ineffective for failing to request a jury instruction
on reckless endangerment, distinct from any claim regarding whether his appellate counsel
was ineffective for failing to raise such an issue on direct appeal. (Doc. 6.)
Filing its Answer, the State conceded that Nichols’s § 2254 petition is timely and that
he has exhausted his claims as they relate to the alleged insufficiency of the evidence and to
his counsel’s alleged ineffectiveness on direct appeal. (See doc. 9.) The State, contends,
however, that Nichols’s claim or claims alleging that his trial counsel was ineffective are

5

procedurally defaulted because they were not raised as distinct claims in the Rule 32
proceedings and exhausted on that ensuing appeal. The State further argues that the rulings
made by the Alabama Court of Criminal Appeals on the merits of Nichols’s claims, to the
effect that the evidence was sufficient to convict him and that his counsel was not ineffective
on direct appeal, are entitled to deference under 28 U.S.C. § 2254(d). As such, the State
argues, Nichols is not entitled to habeas relief.
II.

HABEAS REVIEW STANDARDS AND LIMITATIONS
A.

Limits on the Availability of Review: Exhaustion and Procedural Default

A federal district court is authorized to entertain an application for a writ of habeas
corpus filed by a person in custody pursuant to the judgment of a state court on the ground
that he is in custody in violation of the Constitution or laws of the United States. 28 U.S.C.
§ 2254(a). However, this court may not grant federal habeas relief based upon errors of state
law unless such errors also give rise to a violation of the United States Constitution or federal
law otherwise. See Swarthout v. Cooke, 131 S. Ct. 859, 861 (2011); Wilson v. Corcoran, 131
S. Ct. 13, 16 (2010).
A state prisoner is also generally ineligible for relief under § 2254 even as to federal
claims unless he has first exhausted the remedies available in the courts of the State of
conviction. 28 U.S.C. § 2254(b)(1)(A); see Kelley v. Secretary for Dept. of Corr., 377 F.3d
1317, 1343-44 (11th Cir. 2004). The exhaustion requirement is designed “to effect a proper
balance between the roles of state and federal judicial institutions in protecting federal

6

rights.” Ogle v. Estelle, 592 F.2d 1264, 1267 (5th Cir. 1979).5 As a matter of comity, the
rule requires the federal courts to allow the State the initial “opportunity to pass upon and
correct errors of federal law in the state prisoner’s conviction.” Fay v. Noia, 372 U.S. 391,
438 (1963). Such a rule furthers the strong federal policy that federal courts should not
unduly or prematurely interfere with state court proceedings. See Rose v. Lundy, 455 U.S.
509, 518 (1982). The exhaustion requirement is not satisfied until the claim has been fully
and fairly presented to the state courts for consideration. Picard v. Connor, 404 U.S. 270,
275-76 (1971); Heath v. Jones, 863 F.2d 815, 818 (11th Cir. 1989). This means that
“petitioners [must] present their claims to the state courts such that the reasonable reader
would understand each claim’s particular legal basis and specific factual foundation.” Hunt
v. Commissioner, Ala. Dep’t of Corr., 666 F.3d 708, 730-31 (11th Cir. 2012)(quoting Kelley
v. Secretary for the Dep’t of Corr., 377 F.3d 1317, 1344–45 (11th Cir. 2004). In other
words, “[t]he ground relied upon must be presented face-up and squarely; the federal
question must be plainly defined.” Kelley, 377 F.3d at 1345 (quoting Martens v. Shannon,
836 F.2d 715, 717 (1st Cir. 1988))(internal quotation marks omitted); see also Lucas v.
Secretary, Dep’t of Corr., 682 F.3d 1342, 1352 (11th Cir. 2012).
Exhaustion requires a federal claim to be presented through one complete round of
the State’s trial and appellate review process, either on direct appeal or in State post-

5

The decisions of the former Fifth Circuit handed down before October 1, 1981, are
binding in the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.
1981) (en banc).
7

conviction proceedings. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). In Alabama that
includes presentation of claims to the Alabama Supreme Court. See 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 procedurally defaulted and habeas 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).
Further, “federal courts will not review questions of federal law presented in a habeas
petition when the state court’s decision rests upon a state-law ground that ‘is independent of
the federal question and adequate to support the judgment.’” Cone v. Bell, 556 U.S. 449, 465
(2009)(quoting Coleman, 501 U.S. at 729; Lee v. Kemna, 534 U.S. 362, 375 (2002));
Wainwright v. Sykes, 433 U.S. 72, 81-88 (1977). “[C]onsistent with the longstanding
requirement that habeas petitioners must exhaust available state remedies before seeking
relief in federal court, . . . when a petitioner fails to raise his federal claims in compliance
with relevant state procedural rules, the state court’s refusal to adjudicate the claim ordinarily
qualifies as an independent and adequate state ground for denying federal review.” Cone, 556
U.S. at 465 (citing Coleman, 501 U.S. at 731). However, “federal courts on habeas corpus
review of state prisoner claims . . . will presume that there is no independent and adequate
state ground for a state court decision when the decision ‘fairly appears to rest primarily on
federal law, or to be interwoven with the federal law, and when the adequacy and

8

independence of any possible state law ground is not clear from the face of the opinion.’”
Coleman, 501 U.S. at 734-35 (quoting Long v. Michigan, 463 U.S. 1032, 1040-41 (1983)).
Thus, in order for a state procedural ruling to constitute an independent and adequate ground
precluding review of a federal claim, the last state court rendering a judgment in the case
must “clearly and expressly” state that it is relying, at least in the alternative, on a purely
state-law procedural ground to dispose of the federal claim without reaching its merits.
Coleman, 501 U.S. at 734-35; Harris v. Reed, 489 U.S. 255, 263-265 & n.10 (1989).
Further, to “qualify an ‘adequate’ procedural ground, a state rule must be ‘firmly established
and regularly followed.’” Walker v. Martin, 131 S. Ct. 1120, 1127 (2011)(quoting Beard v.
Kindler, 558 U.S. 53, 60-61 (2009)(internal quotation marks omitted)); see also James v.
Kentucky, 466 U.S. 341, 348 (1984). A “discretionary” state procedural rule may satisfy such
requirements. See Kindler, 558 U.S. at 60-61. However, a state procedural rule is not
“adequate” if it is “applied in an arbitrary or unprecedented fashion,” Judd v. Haley, 250 F.3d
1308, 1313 (11th Cir. 2001), or where the rule, even if otherwise generally sound, is
“exorbitant” as applied in the petitioner’s case. Lee, 534 U.S. at 376 (“There are, however,
exceptional cases in which exorbitant application of a generally sound rule renders the state
ground inadequate to stop consideration of a federal question.”)(citation omitted).
B.

Overcoming a Failure to Exhaust or a State Procedural Default

Where a state prisoner has not exhausted a federal claim or procedurally defaulted it
in the State court, a petitioner is generally entitled to federal habeas review of the merits of

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any such claim only upon a showing of either (1) “cause” for the default and resulting
“prejudice,” or (2) that failure to review the claim will result in a “fundamental miscarriage
of justice.” See Spencer v. Secretary, Dep’t of Corr., 609 F.3d 1170, 1179-80 (11th Cir.
2010); In re Davis, 565 F.3d 810, 821 (11th Cir. 2009). “To establish ‘cause’ for procedural
default, a petitioner must demonstrate that some objective factor external to the defense
impeded the effort to raise the claim properly in the state court.” Henderson v. Campbell,
353 F.3d 880, 892 (11th Cir. 2003)(quotation marks and citation omitted); see also Murray
v. Carrier, 477 U.S. 478, 488 (1986). “To establish ‘prejudice,’ a petitioner must show that
there is at least a reasonable probability that the result of the proceeding would have been
different.” Henderson, 353 F.3d at 892 (citation omitted). The “miscarriage of justice”
exception applies “where a constitutional violation has resulted in the conviction of someone
who is actually innocent.” House v. Bell, 547 U.S. 518, 536 (2006)(citation omitted).
Under Coleman, even if a petitioner “had no right to counsel to pursue his appeal in
state habeas” and even if “attorney error . . . led to the default of [the petitioner’s] claims in
state court,” cause does not exist to excuse the procedural default. Coleman, 501 U.S. at 757.
However, the Supreme Court has recognized a “narrow exception” to Coleman’s procedural
default rule, in the limited circumstances where state law “requires a prisoner to raise an
ineffective assistance of trial counsel in a collateral proceeding.” Martinez v. Ryan, 132 S.
Ct. 1309, 1318 (2012). The Eleventh Circuit recently explained that the Martinez exception
applies only where:

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(1) a state requires a prisoner to raise ineffective-trial-counsel claims at the
initial-review stage of a state collateral proceeding[, i.e., a collateral
proceeding which provides the first occasion to raise a claim of ineffective
assistance at trial] and precludes those claims during direct appeal; (2) the
prisoner did not comply with state rules and failed properly to raise
ineffective-trial-counsel claims in his state initial-review collateral proceeding;
(3) the prisoner did not have counsel (or his . . . counsel was ineffective by not
raising ineffective-trial-counsel claims) in that initial-review collateral
proceeding; and (4) failing to excuse the prisoner’s procedural default would
cause the prisoner to lose a “substantial” ineffective-trial-counsel claim.
Arthur v. Thomas, 739 F.3d 611, 629 (11th Cir. 2014)(citing Martinez, 132 S. Ct. at
1318)(footnote omitted)). The Supreme Court later held that the Martinez rule also applies
“where . . . state procedural framework, by reason of its design and operation, makes it highly
unlikely in a typical case that a defendant will have a meaningful opportunity to raise a claim
of ineffective assistance of trial counsel on direct appeal.” Trevino v. Thaler, 133 S. Ct.
1911, 1921 (2013).
C.

Review of Non-Defaulted Claims

Where state courts have addressed a claim on the merits, federal habeas review of the
decision is limited by § 2254, as amended by the Anti-Terrorism and Effective Death Penalty
Act (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996). See Williams v. Taylor, 529
U.S. 362 (2000); see also Johnson v. Williams, 133 S. Ct. 1088 (2013). Under AEDPA, a
federal habeas court accords a presumption of correctness to a state court’s factual findings.
28 U.S.C. § 2254(e)(1). Where a claim has been adjudicated on the merits in the state courts,
this court may not grant relief on such claim unless it determines that the adjudication of the
claim either
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(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or
(2) 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)(1) & (2); see Premo v. Moore, 131 S. Ct. 733, 739 (2011). “This is a
difficult to meet and [a] highly deferential standard for evaluating state-court rulings, which
demands that state-court decisions be given the benefit of the doubt.” Cullen v. Pinholster,
131 S. Ct. 1388, 1398 (2011)(internal citations and quotations omitted). When the last state
court rendering judgment affirms without explanation, this court presumes the state-court
decision rests on the reasons given in the last reasoned decision. Ylst v. Nunnemaker, 501
U.S. 797, 803-05 (1991); Sweet v. Secretary, Dep’t of Corr., 467 F.3d 1311, 1316-17 (11th
Cir. 2006).
III.

DISCUSSION
A.

Sufficiency of the Evidence

Nichols’s first ground for habeas relief is that the State’s evidence at trial failed to
establish a prima facie case to support his convictions for either trafficking in cocaine or
attempted murder. A claim challenging the sufficiency of the evidence effectively asserts
a violation of the Due Process Clause of the Fourteenth Amendment. See Jackson v.
Virginia, 443 U.S. 307 (1979); Thompson v. Nagle, 118 F.3d 1442, 1448 (11th Cir. 1997).
With regard to such claim, “the relevant question is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have found the
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essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319.
Under Jackson, federal courts must look to state law for the substantive elements of the
criminal offense, but to federal law for the determination of whether the evidence was
sufficient under the Due Process Clause. Coleman v. Johnson, 132 S. Ct. 2060, 2064 (2012).
The State concedes that these claims were exhausted in the Alabama courts. However,
because they were there rejected on their merits in Nichols’s direct appeal, this court on
habeas review must defer to the State court’s resolution under § 2254(d). See Green v.
Nelson, 595 F.3d 1245, 1253 (11th Cir. 2010).
On direct appeal, the Alabama Court of Criminal Appeals summarized the testimony
at trial as follows:
Detective David Luke of the Birmingham Police Department testified
that he was assigned to the Department’s narcotics unit; that, around 5:00 p.m.
on December 6, 2005, the unit executed a search warrant at a house located at
600 79th Street South; that the front of the house had an interior door and a
burglar bar door; that, through a right front window, he saw movement in the
house; and that, as they were approaching the front entrance of the house,
someone in the house opened the interior door and slammed it shut. He also
testified that the officers then announced that they were police officers and
were executing a search warrant; that they breached the outer burglar bar door
and the interior door; and that they used a flash bang diversionary device to
assist in their entry.
Luke testified that, as he got to the second room of the home, he heard
two gunshots coming from his left; that the officers did not return fire; that he
continued through the house to a place where a suspect was being handcuffed;
that he returned to the front bedroom, where he believed the gunshots
originated, and found the appellant in a scuffle with three other officers; that
they got the appellant on the floor and handcuffed him; and that, when they
rolled the appellant over, there was a 9mm shell casing on the floor under him.

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He also testified that Alando McKenzie was arrested in the rear bedroom and
that Carlos Ivy and Danny Woodson were arrested in the kitchen.
Luke testified that officers found a backpack that contained crack
cocaine, marijuana, and personal items and prescription bottles for Alando
McKenzie in the front room by the front door; several bags containing
marijuana and a marijuana cigar on sofas and cocaine hidden in a Playstation
game console in the front room; and a digital scale and more marijuana in the
kitchen. He also testified that officers found a Glock 17 9mm pistol in the
bedroom where they arrested the appellant; that the appellant had more than
$200 in cash and a large bud of marijuana in his possession when they arrested
him; and that Ivy had approximately $1,300 in cash in his possession. He
further testified that, after the scene was secured, two bullet holes were found
in a wooden window frame in the front bedroom and that he thought there
were bullet holes in the barbecue grill on the front porch. Forensic testing
established that the cocaine weighed more than 28 grams.
Detective Heath Boackle of the Birmingham Police Department
testified that, on the evening of December 6, 2005, he led the entry team from
the vehicle to the house where the search warrant was executed; that, as he
approached the house, he saw someone look through the blinds to the right of
the front door; that the burglar[-] bar door was closed and the interior door was
open; that, as he announced that they were police officers with a search
warrant, the appellant slammed the interior door shut; that the breach team
opened the doors and he led them into the house; that he saw the appellant go
into a room to the left of the front door; and that, as he entered the threshold
of the living room, he heard two gunshots to his left.
Detective Robert Walker of the Birmingham Police Department
testified that he and Detective Ronphael Kennedy were responsible for
breaching the front door of the house; that they were on the left side of the
door; that he saw someone open the interior door; that they removed the
burglar bars, and someone set off the diversionary device; that the other
officers proceeded into the house, and he heard multiple gunshots to his left;
and that he and Detective Kennedy were the last two officers to enter the
house. He also testified that, seconds after he heard the gunshots, he,
Kennedy, and Sergeant Michael Duldt went into the front bedroom; that they
saw the appellant in a corner of that bedroom, wrestled him to the floor, and
handcuffed him; and that they found a gun in the corner where the appellant
had been standing and a shell casing on the floor under the appellant.
14

Detective Ronphael Kennedy of the Birmingham Police Department
testified that he and Walker were in charge of breaching the door to the house;
that, as they approached the front porch, he saw someone inside close the
interior door; that they removed the burglar bar door and moved to the left of
the door, and the other officers started entering the house; that he heard two
gunshots very close behind him and Walker; that he, Duldt, and Kennedy
located the appellant in the front left bedroom and handcuffed him; that they
located a gun on a nightstand in the corner where the appellant had been
standing; and that they found two shell casings in the bedroom and two bullet
holes in the window frame going from inside to outside.
Danny Woodson testified that, on November 6, 2005, he lived at 600
79th Street South; that there had been a shootout at his house three weeks
before, and McKenzie had been shot; that, before the officers arrived, he was
attempting to help McKenzie change the bandage on his gunshot wound; that,
when he heard someone approaching the house, he put cocaine and marijuana
into McKenzie’s backpack and left a marijuana cigarette on the couch; that he
had gotten the cocaine out of the Playstation; that Carlos Ivey opened the front
door and slammed it shut; that everyone started running; that the officers were
shooting; that he never saw the appellant shooting; that the appellant did not
own the cocaine or the marijuana; and that he was arrested and charged with
trafficking in cocaine and possession of marijuana. He also testified that he
did not hear the officers announce that they were police officers before they
entered the house.
(Doc. 9-11 at 2-4.)
1.

Trafficking in Cocaine

Nichols first argues that the evidence was insufficient to establish that he was guilty
of trafficking in cocaine. Under the Alabama criminal code,
[a]ny person who knowingly sells, manufactures, delivers, or brings into this
state, or who is knowingly in actual or constructive possession of, 28 grams or
more of cocaine or of any mixture containing cocaine, described in Section
20-2-25(1), is guilty of a felony, which felony shall be known as ‘trafficking
in cocaine.’

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Ala. Code § 13A-12-231(2). Nichols contends that the evidence did not allow an inference
that he possessed the cocaine recovered from the house because “no cocaine was found on”
him because the house was not his and because neither the bookbag nor the Playstation
belonged to him. (Doc. 1 at 8.) Nichols also adds that information provided by the informant
as reflected in the search warrant executed in the raid did not “include[ ]” Nichols. (Id.)
Accordingly, Nichols asserts, “Other than [his] mere presence [in the house], nothing
connects [him] to the cocaine.” (Id.)
The Alabama Court of Criminal Appeals, however, disagreed with those arguments,
stating in relevant part as follows:
Based on evidence that the appellant was in the room where the
backpack and Playstation were located when the officers arrived at the house,
see Korreckt [v. State, 507 So. 2d 558, 564-65 (Ala. Crim. App. 1986)],
(noting that presence of the accused at the scene may constitute incriminating
evidence), and Posey [v. State, 736 So. 2d 656, 658-59 (Ala. Crim. App.
1998)], (noting that physical proximity to contraband is one factor that may
provide the necessary circumstantial connection between the accused and the
contraband); evidence that the appellant closed the interior door when the
officers approached the house, ran from the living room into the left front
bedroom, and shot at the officers, see Posey, supra (noting that conduct that
evidences a consciousness of guilt when the accused is confronted with the
possibility that contraband will be found may provide a connection between
the accused and the contraband), and Hart [v. State, 612 So. 2d 520, 530 (Ala.
Crim. App), aff’d, 612 So. 2d 536 (Ala. 1992)], (noting that flight is admissible
as tending to show the accused’s consciousness of guilt); and evidence that the
appellant had a large bud of marijuana and more than $200 in cash in his
pocket when officers arrested him, see Posey, supra (noting that evidence of
actual possession may provide a connection between the accused and the
contraband), the jury could have reasonably concluded that he constructively
possessed the cocaine and thus was guilty of trafficking in cocaine.
(Doc. 9-14 at 10.)
16

The burden is on Nichols to show that the rejection of this claim by the Alabama
Court of Criminal Appeals either was based on an unreasonable determination of the facts
in light of the evidence or was contrary to, or involved an unreasonable application of, clearly
established Supreme Court precedent. 28 U.S.C. § 2254(d); Pinholster, 131 S. Ct. at 1398;
Visciotti, 537 U.S. at 25. Nichols has failed to do so. Rather, he only makes a few brief,
conclusory statements in support of his position, and he cites no legal precedents from the
Supreme Court of the United States or any other court. (See Doc. 1 at 8.) If Nichols’s
presence at the house were truly the only evidence against him, Supreme Court precedent
would establish that such evidence would not itself be enough to support an inference of
possession. See United States v. Romano, 382 U.S. 136, 140-44 (1965). However, as recited
above by the Alabama Court of Criminal Appeals, there was substantial evidence of
constructive possession against Nichols beyond his mere presence in the house, and it cannot
be said that the state court’s ruling was an unreasonable application of Jackson, 443 U.S. at
319, for purposes of § 2254(d). Coleman v. Johnson, 132 S. Ct. 2060, 2064 (2012)(“Under
Jackson, evidence is sufficient to support a conviction if, ‘after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”” (quoting Jackson, 443 U.S. at
319); see Black v. Thomas, 2006 WL 2547405, at *3-6 (M.D. Ala. Aug. 31, 2006); Anderson
v. Trombley, 451 Fed. Appx. 469, 474-75 (6th Cir. 2011); Pimental v. Spencer, 305 Fed.
Appx. 672, 674 (1st Cir. 2009); Ames v. Franklin, 163 Fed. Appx. 729, 732-33 (10th Cir.

17

2006); see also County Court of Ulster County, N.Y. v. Allen, 442 U.S. 140, 163-65
(1979)(evidence was sufficient to support inference of possession by three adult males in an
automobile in relation to two handguns found in the purse of their 16-year old female
companion); United States v. Thompson, 473 F.3d 1137, 1142-43 (11th Cir. 2006)(discussing
principles of constructive possession applicable in federal drug prosecutions). This claim is
due to be rejected.
2.

Attempted Murder

Nichols contests the sufficiency of the evidence to support his conviction on the two
attempted murder counts. Under Alabama law, “a person is guilty of an attempt to commit
a crime if, with the intent to commit a specific offense, he does any overt act towards the
commission of such offense.” Ala. Code § 13A-4-2(a). In turn, “a person commits the crime
of murder if . . . with intent to cause the death of another person, he or she causes the death
of that person or of another person.” Ala. Code §§ 13A-6-2(a)(1). Nichols was indicted and
convicted on two counts of attempted murder based upon the theory that he fired shots at
Detectives Walker and Kennedy as they were preparing to enter the house in the raid.
Nichols argues that the testimony fails to support a finding that he was the shooter or
that the shots were intended for the named detectives. (Doc. 1 at 8.) Nichols further asserts
that “it was never established by testimony of any of the victims nor the weapon and bullet
holes that they were anywhere in the area where the alleged shots were to have been
directed.” (Id.) The Alabama Court of Criminal Appeals rejected these arguments and

18

concluded that the evidence supported Nichols’s conviction on the attempted murder counts,
as follows:
The State presented evidence that officers saw the appellant run into the
front left bedroom of the house, heard gunshots coming from that direction,
found a gun in the room by the appellant and shell casings on the floor, and
located gunshot holes going outside toward the front porch, which was close
to where Walker and Kennedy were located while the other officers entered
the house. Based on this evidence, the jury could have reasonably concluded
that the appellant was guilty of attempting to murder Walker and Kennedy.
(Doc. 9-11 at 12.)
Nichols also fails to show that the rejection of this claim by the Alabama Court of
Criminal Appeals was based on an unreasonable determination of the facts in light of the
evidence or was contrary to, or involved an unreasonable application of, clearly established
Supreme Court precedent. Nichols again offers nothing but bald assertions to the effect of
what he believes the evidence fails to show, and he cites no Supreme Court authority that
ostensibly conflicts with the decision of the Alabama appellate court. The jury found that
Nichols shot at and attempted to kill the officers. Therefore, “the only question . . . is
whether that finding was so unsupportable as to fall below the threshold of bare rationality.
The state court [last addressing the issue] did not think so, and that determination in turn is
entitled to considerable deference under . . . § 2254(d).” Coleman, 132 S. Ct. at 2065. This
claim is due to be denied.

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B.

Ineffective Assistance of Counsel

The Sixth Amendment affords a criminal defendant the right to “the Assistance of
Counsel for his [defense].” U.S. Const. amend VI. “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 that 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.” Strickland v. Washington, 466 U.S. 668, 687 (1984). In a habeas corpus
action, the petitioner 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
20

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 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. A court may
decline to reach the performance prong if convinced that the prejudice prong cannot be
satisfied in any event. Boyd v. Allen, 592 F.3d 1274, 1293 (11th Cir. 2010).
Nichols’s allegations in this court might be construed as raising up to five distinct
claims of ineffective assistance of counsel. The first two would be claims that his trial
counsel was ineffective for failing to request a jury instruction on reckless endangerment, as
a lesser-included offense of attempted murder and for failing to object to a joint trial with codefendant Alando McKenzie. His other three claims are based on the conduct of counsel on
direct appeal. Two such claims are that appellate counsel was ineffective for failing to raise

21

the two foregoing claims of ineffective assistance of trial counsel. (See doc. 1 at 5, 8; doc.
6.) The fifth and final claim is that appellate counsel was ineffective for failing to contest
the trial court’s denial of his motion to suppress. (Doc. 1 at 9.) The court will first consider
the claims of ineffective assistance as they relate to counsel’s performance at trial.
1.

Conduct of Trial Counsel

The State argues that Nichols has procedurally defaulted his claims of ineffective
assistance of trial counsel by failing to raise and exhaust them in his Rule 32 proceedings.
Nichols responds by insisting that he did fairly present such claims in his Rule 32 case and
that, even if he did not, any failure in that regard is excused under Martinez. The court
concludes, however, that it is unnecessary to resolve whether Nichols presented and
exhausted his ineffective-assistance-of-trial-counsel claims in the Alabama courts or whether
Martinez applies. This court is authorized to deny habeas claims on their merits even if the
claims might be unexhausted. 28 U.S.C. § 2254(a)(2). To that end, Nichols’s claims
alleging ineffective assistance of trial counsel are without merit even assuming that they are
both not procedurally defaulted and subject to review de novo, with no deference to the state
court under § 2254(d).
Nichols first claims that his trial counsel was ineffective because he failed to request
a jury instruction on reckless endangerment, as a lesser-included offense of attempted
murder. A person commits the crime of reckless endangerment under Alabama law “if he
recklessly engages in conduct which creates a substantial risk of serious physical injury to

22

another person.” Ala. Code § 13A-6-24. Alabama courts have held that such may be a
lesser-included offense of attempted murder, at least under certain circumstances. Compare
McNabb v. State, 887 So. 2d 929, 976 (Ala. Crim. App. 2001); Stennet v. State, 564 So. 2d
95, 97 (Ala. Crim. App. 1990); and Turner v. State, 542 So. 2d 1314, 1315-16 (Ala. Crim.
App. 1989), with Cockrell v. State, 890 So. 2d 168, 170 (Ala. Crim. App. 2003); Campbell
v. State, 654 So. 2d 69, 71-72 (Ala. Crim. App. 1994); Nelson v. State, 595 So. 2d 506, 510
(Ala. Crim. App.), rev’d on other grounds, Ex parte Nelson, 595 So. 2d 510 (Ala. 1991); and
Minshew v. State, 594 So. 2d 703, 713 (Ala. Crim. App. 1991). Under Alabama law, a trial
court is required to instruct on a lesser-included offense when requested by the defense if the
evidence at trial provides a reasonable basis for such charge, unless it would tend to mislead
or confuse the jury. See Warren v. State, 35 So. 3d 639, 640-41 (Ala. 2008); Stennet, 564 So.
2d at 97; see also Hopper v. Evans, 456 U.S. 605, 611-12 (1982).
Nichols recognizes that the trial court did instruct the jury on attempted assault in the
first degree as a lesser-included offense of attempted murder. (Doc. 1 at 8.) Nichols
summarily asserts, however, “the factual basis of the attempted murder charge more
accurately fit and warranted [an instruction upon] the lesser-included offense of reckless
endangerment.” (Id.) Nichols thus complains that his trial counsel should have requested
such a charge, and his failure to do so, Nichols says, “caused [him] to be convicted of
attempted murder (the greater offense) based on facts that supported the lesser-included
offense.” (Doc. 6 at 1.) Nichols proceeds to claim that under the Alabama Court of Criminal

23

Appeals’s holding in Stennet, the trial court would have been required to give a reckless
endangerment instruction had it been requested. (Id. at 8-9.) Nichols concludes that, “if this
is true, then no one could argue that [he] has not met the two-prong test of Strickland.” (Id.
at 5.) The court disagrees.
Even assuming that he would have been entitled upon request to a reckless
endangerment instruction, Nichols has failed to establish that his counsel’s performance was
deficient or that he suffered prejudice. First, the failure to request such an instruction
represents an objectively reasonable strategic decision. See Bell v. McNeil, 353 Fed. Appx.
281, 286 (11th Cir. 2009). The trial court had made clear that it was going to instruct on one
lesser-included offense of attempted murder, namely, attempted assault.

Unlike those

“attempt” crimes, reckless endangerment does not require a specific intent to kill or injure.
See Minshew, 594 So. 2d at 713; see also McNabb, 887 So. 2d at 975. As such, Nichols’s
counsel could have thought it better to pursue an acquittal on those two charges rather than
to give the jury an option to reach a compromise verdict on a still lesser offense requiring no
proof of intent to injure. See Harrop v. Sheets, 430 Fed. Appx. 500, 506-07 (6th Cir. 2011);
Adams v. Bertrand, 453 F.3d 428, 435-36 (7th Cir. 2006); Maynor v. Green, 547 F. Supp.
264, 268-69 (S.D. Ga. 1982); cf. United States v. Chandler, 996 F.2d 1073, 1099 (11th Cir.
1993)(“[R]equiring a district court to give a lesser included offense instruction might be at
odds with the trial strategy of defense counsel.”).

24

Nichols also fails to demonstrate that the lack of an instruction on reckless
endangerment caused him to suffer prejudice within the meaning of Strickland. The jury was
already presented with an alternative of convicting him of a lesser-included offense, i.e.,
attempted assault, and yet the jury still found him guilty of the greater, attempted murder
offense. A reckless endangerment instruction would not have changed the standard for
finding Nichols guilty of attempted murder, so presuming a rational jury as this court must
do, an instruction on reckless endangerment would not have changed the outcome of the trial.
See Johnson v. Alabama, 256 F.3d 1156, 1183 (11th Cir. 2001). In light of the fact that the
jury found that Nichols shot at the detectives with the intent to cause their deaths, his
assertion that the jury would have convicted him instead of an offense only involving
reckless conduct amounts to pure speculation. See id.; Harris v. Crosby, 151 Fed. Appx.
736, 738 (11th Cir. 2005); Smelcher v. Attorney Gen. of Ala., 947 F.2d 1472, 1475 (11th Cir.
1991). This claim is without merit.
Nichols also contends that he was denied a fair trial on the theory that his trial attorney
provided ineffective assistance by failing to object to a joint trial with his co-defendant,
Alando McKenzie. (Doc. 1 at 5, 8.) It is again assumed that this claim is not procedurally
defaulted and is subject to de novo review. Even so, it is due to be denied because Nichols
failed to plead sufficient facts to show that he is entitled to habeas relief.
A § 2254 habeas petition “must meet heightened pleading requirements,” McFarland
v. Scott, 512 U.S. 849, 856 (1994), whereby the “petition must: (1) specify all grounds for

25

relief available to the petitioner [and] (2) state the facts supporting each ground.” Rule 2(c),
Rules Governing § 2254 Cases (hereinafter the “§ 2254 Rule”); see also Mayle v. Felix, 545
U.S. 644, 649 (2005)(recognizing that the § 2254 Rule 2(c) “requires a more detailed
statement” of a claim than does Rule 8, Fed. R. Civ. P., that governs pleading in “ordinary
civil cases”). “The reason for the heightened pleading requirement – fact pleading – is
obvious. Unlike a plaintiff pleading a case under Rule 8(a), the habeas petitioner ordinarily
possesses, or has access to, the evidence necessary to establish the facts supporting his
collateral claim; he necessarily became aware of them during the course of the criminal
prosecution or sometime afterwards.” Borden v. Allen, 646 F.3d 785, 810 (11th Cir. 2011).
A district court is authorized to summarily dismiss claims in a petition that are legally
insufficient on their face. Id.; see also § 2254 Rule 4.
The entirety of Nichols’s argument on this claim is that his trial counsel “knew that
McKenzie was the target of the drug raid and drugs were found in McKenzie’s personal
property.” (Doc. 1 at 8.) Such an unadorned statement fails to show that the failure of
Nichols’s counsel to object to the joinder or to move for severance either constituted
deficient performance or resulted in prejudice under Strickland. See Munoz v. United States,
520 Fed. Appx. 855, 856 (11th Cir. 2013). This alone is a sufficient ground to reject this
claim.
Moreover, there is little reason to think that an objection to the joinder or a motion to
sever by Nichols’s counsel would have been successful. Under Alabama law, a trial court

26

may consolidate for trial the cases of defendants charged in separate indictments if the
defendants could have been charged in a single indictment. Ala. R. Crim. P. 13.3(c). In turn,
two or more defendants may be charged in a single indictment:
(1) If they are alleged to have participated in the same act or transaction; or
(2) When the several offenses are part of a common conspiracy, scheme, or
plan; or
(3) When the several offenses are otherwise so closely connected that it would
be difficult to separate proof of one from proof of the other.
Ala. R. Crim. P. 13.3(b). If a defendant is prejudiced by a joinder of his case with that of
another, he may seek a severance. Ala. R. Crim. P. 13.4(a). However, there is a preference
in Alabama in favor of joint trials where joint crimes are involved. See Sneed v. State, 783
So. 2d 841, 846 (Ala. Crim. App. 1999)(citing Zafiro v. United States, 506 U.S. 933 (1993)),
rev’d on other grounds, Ex parte Sneed, So. 2d 863 (Ala. 2000). The decision whether to try
defendants together is committed to the discretion of the trial judge. Weaver v. State, 710
So. 2d 480, 483 (Ala. Crim. App. 1997); Jones v. State, 672 So. 2d 1366, 1370 (Ala. Crim.
App. 1995).
Here, the same drug possession evidence was admitted against both Nichols and
McKenzie. That evidence was recovered in the raid on the house at which both men were
present and resulted in their arrest. Nichols has claimed that he was only a visitor and that
no evidence connects him to possession of the cocaine. As discussed by the Alabama Court
of Criminal Appeals, however, there is substantial evidence supporting that Nichols was a

27

joint participant in the illegal drug activities in the house, such as evidence that he was
observed in the same room where the drugs were found, that he actively attempted to prevent
the police from entering the house to execute the search warrant – both by slamming the door
as they approached and by shooting at them, that he attempted to flee, and that he was found
with $200 and marijuana on his person. While Nichols claims that McKenzie and others in
the house were in actual possession of the cocaine, the evidence regarding constructive and
actual possession was not so complicated as to inhibit the jury’s ability to independently
appraise the evidence as it related to each defendant. In similar circumstances Alabama
courts have rejected claims that separate trials were required. See Franklin v. State, 629 So.
2d 759, 761 (Ala. Crim. App. 1993); Greathouse v. State, 624 So. 2d 202, 204-06 (Ala. Crim.
App. 1992); Mobley v. State, 563 So. 2d 29, 31-32 (Ala. Crim. App. 1990). These Alabama
cases support the court’s determination that Nichols has failed to show deficient performance
or prejudice based on his counsel’s failure to object to the consolidation or to move for a
severance. See Bogan v. Thompson, 365 Fed. Appx. 155, 158 (11th Cir. 2010). Nichols is
not entitled to relief based on the alleged ineffective assistance of his trial counsel.
2.

Conduct of Appellate Counsel

Nichols raises three claims alleging that his counsel was constitutionally ineffective
on direct appeal. In support, Nichols claims that his counsel should have, but did not, raise
claims on appeal (1) that his trial counsel was ineffective for failing to ask for an instruction
on reckless endangerment, (2) that his trial counsel was ineffective for failing to contest the

28

State’s motion to consolidate his trial with that of McKenzie, and (3) that the trial court erred
in denying Nichols’s pre-trial motion to suppress the evidence recovered in the raid. Claims
of ineffective assistance of appellate counsel are governed by the same standards applied to
trial counsel under Strickland. Brooks v. Commissioner, Ala. Dep’t of Corr., 719 F.3d 1292,
1300 (11th Cir. 2013). However, because the Alabama Court of Criminal Appeals rejected
these claims on their merits, (see doc. 9-15 at 3-5), this court’s habeas review must defer to
the State court’s resolution under § 2254(d).
The Alabama Court of Criminal Appeals concluded that Nichols’s first two claims
above were without merit because his appellate counsel was newly appointed only after the
denial of Nichols’s motion for a new trial and, thus, could not have been expected to raise
ineffective assistance claims in the trial court in the first instance, as required to perfect such
claims for appeal. (Doc. 9-15 at 3.) Nichols fails to show that such a disposition is based
upon an unreasonable determination of the facts or that it conflicts with Supreme Court
precedent. Cf. Trevino, 133 S. Ct. at 1918 (recognizing that Texas criminal procedure
“makes it virtually impossible for appellate counsel to adequately present an ineffective
assistance of trial counsel claim on direct review” (internal quotation marks, citation, and
brackets omitted); Massaro v. United States, 538 U.S. 500, 504-05 (2003)(“When an
ineffective- assistance claim is brought on direct appeal, appellate counsel and the court must
proceed on a trial record not developed precisely for the [purpose] of litigating or preserving
[an ineffective assistance] claim and thus [the record is] often incomplete or inadequate for

29

this purpose.”). Further, for reasons already stated, Nichols has failed to show that his
underlying claims alleging that his trial counsel was ineffective have merit, as it relates to
either the failure to request an instruction on reckless endangerment or the failure to contest
the consolidated trial with McKenzie’s case. As a result, the failure to raise such claims on
appeal was not ineffective assistance of counsel. See Diaz v. Secretary for the Dep’t of
Corr., 402 F.3d 1136, 1144-45 (11th Cir. 2005); United States v. Nyhuis, 211 F.3d 1340,
1344 (11th Cir. 2000). Nichols is not entitled to relief on either of these two claims.
In his final claim, Nichols contends that his appellate counsel was ineffective for not
challenging the trial court’s denial of his motion to suppress the evidence obtained in the
raid. In his habeas application, Nichols contends that Detective Walker’s affidavit presented
to obtain the search warrant executed in the raid did not demonstrate probable cause,
apparently because that the information was provided to Walker by a confidential informant
and allegedly was not sufficiently corroborated. (See doc. 1 at 9 [“[T]he affidavit of John
Walker . . . was based on his belief, based on information that he received from one whose
name is not disclosed. Walker did not disclose any personal name knowledge (sic) nor
conducted any personal investigation of the criminal activity.”].)
In addressing this claim, the Alabama Court of Criminal Appeals set forth the relevant
substance of Detective Walker’s affidavit submitted in support of the search warrant
application as follows:
On 12-01-2005 Your Affiant met with a confidential reliable informant
who has provided independently corroborated information regarding cocaine
30

and crack cocaine distributions in Birmingham, Alabama. This confidential
reliable informant has also provided information to Your Affiant that has led
to the narcotics cases being made and led to the seizure of an illegal firearm,
a large amount of cocaine and U.S. currency, which was believed to be
proceeds from the illegal distribution of narcotics. Your Affiant is satisfied
that the confidential, reliable informant is familiar with the appearance and
packaging of both cocaine and crack cocaine and the confidential reliable
informant has demonstrated this familiarity to Your Affiant in the past.
During this meeting with Your Affiant, the confidential reliable
informant stated that on 11-30-2005 he/she was present inside of a residence
located at 600 79th Street South, Birmingham, Jefferson County, Alabama.
While inside the residence, the confidential reliable informant observed
cocaine and crack cocaine being kept, sold and concealed by a black male
named Carlos Ivy, whose date of birth is [a date specified in 1976] and a black
male named Alando McKenzie, a/k/a ‘Woudie,’ whose date of birth is [a date
specified in 1974]. The confidential reliable informant also observed Ivy and
McKenzie inside of the residence ‘cooking’ cocaine (converting cocaine HCL
into cocaine base).
On 12-5-2005 Your Affiant again met with the same confidential
reliable informant. During this meeting, the confidential reliable informant
stated that, within the last forty-eight (48) hours, he/she was present inside of
a residence located at 600 79th Street South, Birmingham, Jefferson County,
Alabama. While inside the residence, the confidential reliable informant
observed cocaine and crack cocaine being kept, sold and concealed by . . . Ivy
. . . and McKenzie. The confidential reliable informant stated that Ivy had
cocaine and/or crack cocaine concealed in a black and pink ‘jewelry bag’ and
McKenzie had cocaine and/or crack cocaine concealed in a black ‘back pack.’
(Doc. 9-15 at 3-4.) The Alabama Court of Criminal Appeals concluded that the affidavit
“clearly and sufficiently set out the basis for the issuance of the search warrant” and
adequately “discussed [Detective Walker]’s personal experience in narcotics investigation
and indicated that the informant was a known and reliable confidential informant who had
provided information in other cases resulting in successful narcotics cases against other

31

individuals.” (Id. at 3.) Accordingly, the Alabama Court of Criminal Appeals held that the
affidavit adequately supported the issuance of the search warrant, meaning that appellate
counsel’s failure to raise the issue on direct appeal was not ineffective assistance. (Id. at 5.)
Nichols offers nothing to show that the disposition of this claim by the Alabama Court
of Criminal Appeals was unreasonable or conflicted with clearly established Supreme Court
precedent for purposes of § 2254(d). Contrary to Nichols’s suggestion, a valid search
warrant may be based upon hearsay furnished to police by an informant whose identity is not
disclosed when probable cause is shown under the totality of the circumstances, including
the “closely intertwined issues” of the informant’s basis of knowledge, reliability, and
veracity. Illinois v. Gates, 462 U.S. 213, 230 (1983). Even assuming for the sake of
argument that the affidavit fell short of showing probable cause, the evidence obtained
pursuant to the search warrant still would not have been subject to suppression at trial in this
setting unless it could not be said that the officers were acting in “good faith” because the
affidavit was “so lacking [in] indicia of probable cause as to render official belief in its
existence entirely unreasonable.” Killingsworth v. State, 33 So. 3d 632, 641 (Ala. Crim. App.
2009); see also United States v. Leon, 468 U.S. 897 (1984). Nichols fails to make any such
showing. Again, because the underlying suppression issue was without merit, appellate
counsel’s failure to raise it on appeal was not ineffective assistance. Diaz, 402 F.3d at 114445; Nyhuis, 211 F.3d at 1344. Like all of his other asserted grounds for relief, this claim of
ineffective assistance of counsel is due to be denied.

32

IV.

CONCLUSION
Based on the foregoing, Nichols’s § 2254 habeas petition is due to be denied. A

separate final order will be entered.
DONE, this the 17th day of March, 2014.

SHARON LOVELACE BLACKBURN
UNITED STATES DISTRICT JUDGE

33