Brown v. Thomas et al

Filing 39

MEMORANDUM OPINION-re: R&R 17 . The court hereby ADOPTS the Report of the Magistrate Judge and ACCEPTS his Recommendations. The objections to the R&R by petitioner are hereby OVERRULED. Signed by Judge R David Proctor on 11/5/2013. (AVC)

FILED
2013 Nov-05 AM 09:35
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MARIO TARMISE BROWN,
Petitioner,
v.
WARDEN WILLIE THOMAS and
THE ATTORNEY GENERAL
FOR THE STATE OF ALABAMA,
Respondents.

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Case No.: 2:11-CV-3578-RDP

MEMORANDUM OPINION
On June 11, 2012, the Magistrate Judge entered a Report and Recommendation on Mario
Tarmise Brown’s petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. (See Doc. #17).
Brown is currently serving a life sentence in a State of Alabama Correctional Facility following his
conviction for intentional murder in the Circuit Court of Jefferson County, Alabama. The petition
was referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b) for preliminary review. Upon
consideration of the Report and Recommendation in light of the Objections, the undersigned finds
that the Report and Recommendation of the Magistrate Judge is due to be adopted and accepted in
its entirety.
I.

Procedural History
The Report and Recommendation (Doc. #17) was entered on June 11, 2012. Objections were

filed by Respondents on June 19, 2012. While the Respondents did not object to the ultimate
conclusion that the petition for the writ of habeas should be dismissed, they sought modification of
the Report primarily on the ground that the Magistrate Judge incorrectly found that the Supreme
Court’s decision in Martinez v. Ryan, – U.S. – , 132 S. Ct. 1309 (2012), was applicable to the case.

(See Doc. #18 at 1-11). On July 13, 2012, Petitioner filed Objections to the Recommendation of the
Magistrate Judge. (See Doc. #23). Petitioner argued that Martinez was appropriately used to apply
in Alabama to post conviction relief but objected to the reasoning of the Magistrate Judge in coming
to the conclusion to deny the petition for habeas relief. (See Doc. #23 at 3-12).
The matter was set for a telephone conference. Thereafter, the case was stayed pending a
decision by the Supreme Court in Trevino v. Thaler, 569 U.S. (2013) which would address and shed
some light on the Martinez issue. (See Doc. #27). The parties requested additional briefing after
Trevino, and briefing was complete on September 4, 2013. (See Docs. #32-38).
II.

Background
The background of this case, including the possible grounds for habeas relief, have been fully

set forth in the Report and Recommendation of June 11, 2012. They are adopted and incorporated
as if fully set forth herein.
III.

Analysis
One of Brown’s claims for federal habeas relief is ineffective assistance of counsel. He

argues that ineffective assistance was rendered in three ways: (1) failing to object to the use of the
capital murder indictment as the basis for the second trial; (2) failing to object to the second trial as
a violation of his right to be free from double jeopardy; and (3) failing to impeach State witness
Michael Mobley during the trial concerning his purportedly false testimony. (Doc. #1 at 39). The
Magistrate Judge noted that Brown failed to raise Mobley’s alleged perjury or his counsel’s alleged
failure to object to the perjury on his direct appeal, Rule 32 petition, or appeal from the denial of the
Rule 32 petition. (See Doc. #17 at 13). However, the Magistrate Judge went on to find that the

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merits of the Mobley claim were due to be considered because Brown qualified for an exception
under Martinez. (See Doc. #17 at 13).
It is here that Respondents take issue with the Report and Recommendation. (See generally
Doc. #18). They argue that because Brown did not “give the courts one full opportunity to resolve
[this issue] by invoking one complete round of the State’s established appellate review process,” he
failed to exhaust the claim about Mobley, notwithstanding Martinez. (Doc. #18 at 2) (citing
O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)). The Magistrate Judge recognized that the
Mobley issue had not been previously raised (either on direct appeal, Rule 32 petition, or from the
denial of the Rule 32 petition), but reasoned that the claim would qualify under the exception
introduced by Martinez. (See Doc. #17 at 13). Brown’s procedural default occurred during the
initial collateral review proceeding when he failed to raise the Mobley-specific ineffective assistance
of counsel issue at the state level. See McNair v. Campbell, 416 F.3d 1291, 1305 (11th Cir. 2005)
(holding that a petitioner’s failure to exhaust his claims properly ripens into a procedural default
once state remedies are no longer available). Brown was not represented by counsel during the
initial collateral proceeding. (See Doc. #5-16 at 57-58). Thus, the reasoning of Martinez,
acknowledging that “as an equitable matter, that the initial-review collateral proceeding, if
undertaken without counsel or with ineffective counsel, may not have been sufficient to ensure that
proper consideration was given to a substantial claim,” was found to apply here. Martinez, 132 S.
Ct. at 1318.
Now, with the additional guidance of the Supreme Court in Trevino v. Thaler, 133 S. Ct.
1911 (2013), the undersigned is convinced that the Magistrate Judge was correct in determining that
Martinez applies to the case at hand, notwithstanding Respondents’ argument to the contrary. (See
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Doc. #34). To be sure, Trevino extended Martinez, holding that where a state’s “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, [the] holding of Martinez applies[.]” Trevino, 133 S. Ct. at 1921. While
Alabama does not bar a defendant from raising ineffective assistance of counsel claims on direct
appeal, in this case Brown was represented on appeal by one of his original trial attorneys, later
appointed appellate counsel did not file an amended motion (and, in fact, appellate counsel was
appointed after the time for filing a motion for a new trial had expired), and the trial court ruled on
the motion before the trial transcripts had been prepared. (See Doc. #18 at 7). These specific
circumstances made it “highly unlikely” for Brown to have a meaningful opportunity to raise the
claim of ineffective assistance of counsel on appeal. It is undisputed that Brown requested counsel
at his Rule 32 proceedings and that his request was denied leaving him without counsel. Therefore,
in line with Martinez and Trevino, it was proper for the Magistrate Judge to consider the merits of
the Mobley claim.
IV.

Conclusion
Respondents objected to the Magistrate Judge’s Report and Recommendation not as to the

ultimate conclusion, but as to reasoning set forth therein.

After careful consideration, the

undersigned finds that those objections are due to be and hereby are OVERRULED.
Petitioner objected to the Magistrate Judge’s Report and Recommendation as to the reasoning
contained therein on the double jeopardy and ineffective assistance of counsel claims and the Dennis
Johnson affidavit issue. After careful consideration, the undersigned finds that those objections are
due to be and hereby are OVERRULED.
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The court hereby ADOPTS the Report of the Magistrate Judge and ACCEPTS his
Recommendations. Accordingly, the petition for writ of habeas corpus relief (Doc. #1) is due to be
dismissed with prejudice. A separate order in accordance with this memorandum opinion will be
entered.
DONE and ORDERED this

5th

day of November, 2013.

___________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

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