Smith v. Davenport et al

Filing 29

MEMORANDUM OPINION AND ORDER For reasons set out within, Petitioners motion to expand the record and for an evidentiary hearing, (doc 27), is DENIED. Signed by Magistrate Judge John H England, III on 6/20/14. (SAC )

FILED
2014 Jun-20 AM 10:40
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
TONY LEE SMITH,
Petitioner,
v.
CARTER DAVENPORT and THE
ATTORNEY GENERAL
OF THE STATE OF ALABAMA,

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Case Number: 2:11-cv-03271-WMA-JHE

Respondents.
MEMORANDUM OPINION AND ORDER
Petitioner Tony Lee Smith moves to expand the record and for an evidentiary hearing,
requesting (1) the state circuit court trial transcript be added to the record and an evidentiary
hearing held regarding the factual basis for the assault charge he claims is barred by his previous
plea to resisting arrest; and (2) an evidentiary hearing be held on the question of who was
representing him at the time of the events he alleges. (Doc. 27). Respondents were given an
opportunity to respond to the motion, (doc. 28), but did not. The motion is therefore ripe for
review. Upon a review of the record and the issues, the undersigned finds Petitioner’s motion,
(doc. 27), is due to be denied.
Analysis
The introduction of new evidence under Rules 6, 7, and 8 of the Rules Governing Section
2254 Cases depends on the interplay between those rules and 28 U.S.C. § 2254(e). The Eleventh
Circuit has held that, although section 2254(e) only explicitly applies to evidentiary hearings,
“the conditions of § 2254(e)(2) generally apply to Petitioners seeking relief based on new
evidence, even when they do not seek an evidentiary hearing.” Ward v. Hall, 592 F.3d 1144,
1162 (11th Cir. 2010) (quoting Cooper-Smith v. Palmateer, 397 F.3d 1236, 1241 (9th Cir. 2005)
(citing Holland v. Jackson, 542 U.S. 649, 124 S.Ct. 2736, 159 L.Ed.2d 683 (2004)).
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Under the rules, the district court “may, for good cause, authorize a party to conduct
discovery,” Rule 6, Rules Governing § 2254 Cases; “may direct parties to expand the record,”
Rule 7, Rules Governing § 2254 Cases; and “must review [the record] to determine whether an
evidentiary hearing is warranted,” Rule 8, Rules Governing § 2254 Cases. Section 2254(e)(2)
states:
If the applicant has failed to develop the factual basis of a claim in State court
proceedings, the court shall not hold an evidentiary hearing on the claim unless the
applicant shows that—
(A) the claim relies on—
(i) a new rule of constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered
through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and
convincing evidence that but for constitutional error, no reasonable factfinder
would have found the applicant guilty of the underlying offense.
28 U.S.C. 2254(e)(2). The first question is whether the petitioner exercised diligence in his
efforts to develop the factual basis for his claim in the state court because, if he did, the
conditions of section 2254(e)(2) do not apply. See Ward v. Hall, 592 F.3d at 1162.
Specifically regarding motions for evidentiary hearings under Rule 8, the Eleventh
Circuit has held,
where a petitioner was granted an evidentiary hearing or other means of presenting
evidence to the state court on the particular claim, and the petitioner failed to take full
advantage of that hearing, despite being on notice of and having access to the potential
evidence and having sufficient time to prepare for the hearing, that petitioner did not
exercise diligence in developing the factual foundation of his claim in state court.
Pope v. Sec’y for Dep’t of Corr., 680 F.3d 1271, 1289 (11th Cir. 2012). Then, even where due
diligence has been properly exercised, a federal court may grant an evidentiary hearing only
where “such a hearing could enable an applicant to prove the petition’s factual allegations,
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which, if true, would entitle the applicant to federal habeas relief.” Id. at 1291 (quoting Schriro
v. Landrigan, 550 U.S. 465, 474, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007)).
I.

Request for Trial Transcript and Additional Similar Testimony
Petitioner’s first request is to expand the record to include the trial transcript in his

Assault II, Case No. CC-05-922, and to hold an evidentiary hearing on the factual basis of that
charge and the Resisting Arrest charge, Case No. CC-05-924, which, he claims, bars the Assault
II claim on Double Jeopardy grounds. (Doc. 27 at 4). 1 The first part of the request appears to be
a motion to expand the record under Rule 7, and the second part appears to be a motion for an
evidentiary hearing on the same issue covered by the evidence in the first part. If a transcript of
the requested testimony already exists, an evidentiary hearing on that issue is certainly not
warranted. The question then is whether the record should be expanded to include the trial
transcript.
As previously noted, the first question is whether the request involves new evidence
Petitioner failed to acquire despite exercising due diligence in the state court. The testimony in
the transcript at issue was given at trial before the state circuit judge before whom the Rule 32
petition was heard, (doc. 7-44 at 2), a fact referred to in the Court of Criminal Appeals’ order
affirming that court’s denial of the petition, (id. at 10-11).

Furthermore, portions of the

testimony of the officer Petitioner allegedly assaulted appear in the record before this Court, as
read into the record in the Rule 32 evidentiary hearing transcript, (doc. 7-36 at 50-51), and as
part of the evidence included with Petitioner’s Rule 32 petition, (doc. 7-31 at 45-47). The

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He also claims the respondents have failed to include the indictment for Case CC-05-924 and
the guilty plea transcript for the resisting arrest charge, (doc. 27 at 2), but Petitioner never
specifically requests they be added to the record. Nevertheless, neither of the stated documents
need be added. First, in the Rule 32 proceeding, the parties stipulated to the fact Petitioner pled
to a charge of resisting arrest in case CC-05-924 before pleading to assault of the same police
officer in CC-05-922. (Doc. 7-36 at 7-8). Second, the parts of the transcript of the plea hearing
on case CC-05-924 that Petitioner put into the record before the state court are included in the
record, (doc. 7-31 at 41-43), and Petitioner does not attempt to explain why any portions he
failed to present to the state court should be added.
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testimony requested was before the state court and is, therefore, not new evidence.
Consequently, section 2254(e)(2)’s diligence inquiry and subsequent conditions would not apply.
However, Petitioner’s own arguments and testimony show that the requested testimony
transcript is unnecessary. In his testimony at the Rule 32 evidentiary hearing, Petitioner does not
contest the accuracy of the officer’s testimony upon which the state courts made their decision
on Double Jeopardy, but instead contests their application of the law to those facts. (See doc. 736 at 52-54). In the motion before this Court requesting the trial transcript, he acknowledges this
fact. (Doc. 27 at 4) (“Petitioner emphasizes that this is not a factual dispute, but rather an
erroneous conclusion of law to the facts of this case.”). If Petitioner does not contest the facts
upon which the state court based its decision, additional evidence of those facts will not assist his
petition on the question of law it challenges. As a result, the undersigned finds Petitioner’s
request for the transcript and evidentiary hearing regarding the facts underlying the assault and
resisting arrest charges is due to be denied.
II.

Request for Evidentiary Hearing Regarding Appointed Attorneys
Petitioner’s second request is for an evidentiary hearing to clear up the question of who

was appointed to be his attorney in case CC-05-2209. (Doc. 27 at 6). He states the trial court
claimed to have appointed Shaun Quinlan to represent Petitioner in case CC-05-2209, but
Quinlan denied ever representing Petitioner in that case. (Id. at 5-6). Petitioner then states the
trial court “switch[ed] its stance” to say Fred Lawton, III, was appointed, but Lawton similarly
stated he had not represented Petitioner in that case. (Id. at 6). Petitioner asserts the conflict
between the trial court and attorneys “cannot be reconciled” and “[e]ither the trial court has
interjected falsehood into the proceedings, or the two mentioned attorneys have given false
testimony.” (Id.). Citing Lahay v. Armontrout, 923 F.2d 578 (8th Cir. 1991), he claims this
evidence entitles him to an evidentiary hearing because that case “was remanded for a hearing to
determine whether a witness for the state committed perjury at a state post-conviction hearing

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thus removing [the] presumption of correctness of state court factfindings based on that
testimony.” (Doc. 27 at 5).
In Lahay, the Eighth Circuit addressed potential perjury at a post-conviction hearing by
the petitioner’s counsel regarding his representation in the underlying criminal case. The court
held the petitioner’s evidence regarding his trial counsel being charged with perjury, along with
the petitioner’s own testimony in opposition to his counsel’s, was sufficient to rebut the
presumption of correctness in favor of the state court and entitled the petitioner to an evidentiary
hearing to review the findings. 923 F.2d at 579. The allegedly perjured testimony in that case
related to whether the petitioner’s counsel conferred with the petitioner and failed to call
witnesses.

Id. at 578.

That testimony directly underlay the state court’s findings on the

petitioner’s ineffective assistance of counsel claim and called into question the accuracy of those
findings. That is not the case here.
Petitioner alleges the trial court made false statements about who was appointed to
represent him or the two attorneys perjured themselves when they testified they had not been
appointed to represent Petitioner in case CC-05-2209. (Doc. 27 at 6). However, the answers to
the questions Petitioner asserts need answering do not underlay the state court’s findings and will
not help him prove the allegations of his petition that would entitle him to relief.
First, the petition makes no allegations regarding Attorney Shaun Quinlan or the
effectiveness of his representation, (doc. 1); therefore, his testimony could not support any of the
allegations in the petition. Petitioner does make some allegations regarding Quinlan in his
motion to include additional facts, filed on February 4, 2013, and granted by United States
Magistrate Judge Armstrong on February 5, 2013. 2 Petitioner alleges Quinlan was counsel of
record on case CC-05-2209 at the time of Petitioner’s arraignment but Quinlan gave testimony
he had no knowledge of ever being appointed to the case. (Doc. 25 at 2). Petitioner alleges this

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This case was previously referred to Judge Armstrong before being referred to the
undersigned on June 18, 2013.
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supports his claim “he was taken to a critical stage of the proceedings, arraignment, without
presence of counsel.” (Id.). However, whether Quinlan was counsel of record going into the
arraignment hearing is irrelevant to the petition because the Alabama Court of Criminal Appeals
held in Petitioner’s Rule 32 proceedings that the trial court performed a proper Faretta colloquy
at the hearing and therefore, at the time of his arraignment on case CC-05-2209, Petitioner was
acting pro se. (Doc. 7-44 at 15-17). As a result, it is undisputed Petitioner appeared at the
arraignment without counsel, Quinlan or otherwise. (Id. at 17). Therefore, while Quinlan’s
testimony might support Petitioner’s allegations added by his motion to include facts, it would
not support any allegations entitling him to relief on his claim of unconstitutional denial of
counsel.
Second, regarding Attorney Fred Lawton, III, the testimony Petitioner alleges is perjury
was directly addressed later in the same Rule 32 evidentiary hearing. While it is true Lawton
appears in the trial court record as appointed counsel, (doc. 7-1 at 3), but stated he did not
represent Petitioner on that case, (doc. 7-36 at 63), Lawton addressed the inconsistency later in
his testimony, recounting a letter he sent to Petitioner after the trial, explaining he had been
appointed in the record but no order had ever been sent to him, (doc. 7-36 at 66-67). Unlike in
Lahay, there is no evidence of perjury here to undermine the state court’s findings.
Furthermore, other than simply stating Lawton appeared on the wrong case, Petitioner
alleges two specific bases to support his ineffective assistance of counsel claim, and the
requested evidence is not necessary to either. The first is Lawton “allowed Petitioner to plead
guilty to the substantive offense of Assault II [in case CC-05-922] after already being convicted
of the lesser included offense of Resisting Arrest [in case CC-05-924].” (Doc. 1 at 12). There is
no dispute that, right or wrong, Lawton was representing Petitioner on those two cases at the
time of his plea deal. (Doc. 7-36 at 9-10, 62; doc. 7-44 at 13). The second basis is the alleged
“fail[ure] to inform [Petitioner] that jail credit was mandatory.”

(Doc. 1 at 5).

As it is

undisputed Lawton was representing Petitioner in the plea negotiations in case CC-05-922, it
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cannot be disputed Lawton was still representing Petitioner when the state predicated that deal on
Petitioner pleading to the assault in CC-05-2209. (See doc. 7-36 at 62) (“[I]f [Petitioner] wanted
a deal he would have to plead to the other assault that was pending against another individual.”).
Therefore, additional testimony on the question of when and to what degree Lawton represented
Petitioner is unnecessary. At the various times relevant to Petitioner’s allegations, Lawton was
representing Petitioner. The question is whether he did so effectively under the Constitution and
U.S. Supreme Court case law. As a result, Petitioner’s request for an evidentiary hearing on the
question of who was representing him at the time of the events he alleges is due to be denied.
Accordingly, Petitioner’s motion to expand the record and for an evidentiary hearing,
(doc 27), is DENIED.
DONE this 20th day of June 2014.

_______________________________
JOHN H. ENGLAND, III
UNITED STATES MAGISTRATE JUDGE

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