Chandler v. State of Alabama
MEMORANDUM OPINION. Signed by Judge Sharon Lovelace Blackburn on 11/17/15. (SMH)
2015 Nov-18 AM 09:50
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
STATE OF ALABAMA and the
ATTORNEY GENERAL OF THE STATE
Case No. 2:13-cv-109-SLB-TMP
This is an action pursuant to 28 U.S.C. § 2254 in which the petitioner challenges the
constitutional validity of a conviction he received in the Circuit Court of Calhoun County,
Alabama for trafficking marijuana.
As explained below, all of the petitioner’s claims are
procedurally defaulted and he is entitled to no habeas relief.
On September 3, 2010, the grand jury in Calhoun County, Alabama, indicted the
petitioner on one count of trafficking marijuana.1 (Doc. 13-1). He was arraigned on January 27,
2011, and pleaded not guilty. He was represented by Attorney William Broome. On April 27,
2011, the petitioner pleaded guilty to a reduced charge of possession of marijuana pursuant to a
plea agreement, and was sentenced on May 31, 2011, as a habitual offender to a term of fifteen
According to his declaration, petitioner was arrested by state authorities on June 15, 2010, for
possession of marijuana and placed in the Calhoun County Jail until September 2010, when he was
transferred to FCI-Morgantown to begin serving a federal sentence imposed after his supervised
release in an earlier federal case was revoked, based principally on the June arrest. He was then sent
back to Calhoun County in January 2011 for prosecution of the state marijuana charge.
years, which was suspended with five years of probation instead. (Doc. 13-2). Petitioner did not
appeal, and the conviction became final 42 days later, on July 12, 2011, when the time for appeal
expired. There is no indication in the record, and petitioner does not allege, that he has filed any
state post-conviction petition challenging the conviction or sentence.
While serving a federal sentence at FCI-Morgantown, West Virginia, petitioner filed the
instant petition for § 2254 relief in the United States District Court for the Northern District of
West Virginia, on May 7, 2012. The petition was transferred to this court on January 7, 2013,
being docketed in this court on January 17, 2013. The original petition alleged two principal
claims, both asserting some form of ineffective assistance of counsel in violation of the Sixth
Amendment. Those claims are:
1. Petitioner’s trial counsel, Broome, failed to meet with and interview
Brian Studdard, who purportedly could testify that he heard another man, Colin
Law, admit that he had planted the marijuana plants for which petitioner was
charged (Claim 1).
2. Petitioner’s trial counsel failed to adequately investigate and prepare
for petitioner’s federal supervised release revocation hearing because counsel
(a) failed to retain an investigator to rebut the testimony of Government
witnesses, (b) failed to obtain and use photographs of petitioner’s property and
adjacent property, (c) failed to properly prepare petitioner and his wife, Michelle,
to testify as witnesses at the revocation hearing, (d) failed to conduct and obtain
pre-hearing discovery from the Government, leaving him unable to effectively
cross-examine the Government’s main witness, agent Carter Allen, and (e) failed
to file a motion to suppress the fruits of a search of petitioner’s truck, pursuant to
Arizona v. Gant (Claim 2).
Following the transfer of the petition to this court, the court granted petitioner’s motion to amend
the petition to add a claim (Claim 3) that his guilty plea was taken while the state courthouse was
closed due to inclement weather and his family was not present. (Docs. 8 and 11). Later,
petitioner filed several other motions to amend the petition, but the court allowed only an
amendment (Doc. 22) alleging (Claim 4) that petitioner was coerced by counsel into pleading
guilty even though counsel knew petitioner was not guilty of the marijuana charge. (Doc. 29).
On August 5, 2014, petitioner again sought leave to amend the petition to allege (Claim 5) that
trial counsel falsely represented to him, in an attempt to persuade petitioner to plead guilty, that
petitioner’s wife and brother would testify against him to the effect that petitioner was growing
the marijuana plants near his home. (Doc. 37). Petitioner asserts that this information from
counsel was false and known by counsel to be false, and that it caused petitioner to forgo trial
and plead guilty. The court allowed this amendment as well. (Doc. 39).
Ultimately, the respondents filed answers to these claims, asserting that all of the claims
are procedurally defaulted.
(Docs. 13, 30, and 42). In particular, respondents point out that,
with respect to all claims of ineffective assistance of counsel, petitioner has not filed any Rule 32
or other state post-conviction petition, nor did he appeal any claim related to the legality of the
guilty plea taking place while the courthouse was closed for inclement weather.
The court notified the parties that the petition and answers would be taken under
submission for summary adjudication, and petitioner was given the opportunity to reply to the
assertion of procedural default raised in the respondents’ answers. Petitioner filed his traverse
on January 5, 2015 (Doc. 45), asserting that he is factually innocent of the marijuana-possession
charge and that he only recently discovered that trial counsel’s statements about petitioner’s wife
and brother being available to testify against him were not true. Petitioner contends he only
recently discovered that his wife and brother would not testify against him, contrary to what he
was told by counsel.
The Petitioner contends in Claims One, Two,2 Four, and Five that he received various
forms of ineffective assistance of counsel and, in Claim Three, that his Sixth Amendment rights
were violated because he was sentenced when the courthouse was closed and he was not given a
full plea colloquy. These claims are procedurally defaulted because petitioner has not brought
any of them in a state-court post-conviction proceeding.3 When a habeas claim has never been
presented to a state court and there no longer exists any remedial vehicle by which the state
courts may consider the claim, the United States Supreme Court has held that it is procedurally
defaulted. Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989). The court
is not required to dismiss the claims as unexhausted because the defaults are apparent and it
would be futile to send the petitioner back to state court only to be faced with them. See Collier
v. Jones, 910 F.2d 770 (11th Cir. 1990); Whiddon v. Dugger, 894 F.2d 1266 (11th Cir. 1990).
Consequently, under the authority of Teague, the Petitioner is procedurally barred from raising
these claims absent a showing of adequate cause and prejudice for failing to raise the issues on
direct appeal or in a properly filed Rule 32 petition. See Whiddon v. Dugger, 894 F.2d 1266
Claim Two actually challenges counsel’s performance at a federal supervised release
revocation hearing where petitioner’s prior federal supervised release was revoked on the basis
of the new state marijuana trafficking charge that is the basis of the instant § 2254 petition.
Challenges to that proceeding must be brought in a separate motion to vacate the federal
sentence pursuant to 28 U.S.C. § 2255, not the instant § 2254 petition. To the extent, therefore,
that petitioner alleges ineffective assistance at the federal supervised-release revocation hearing,
the claim does not implicate the constitutional validity of his state-court conviction at issue in
this case. Nonetheless, if it was petitioner’s intent to allege these same claims of ineffective
assistance with respect to his state conviction, they are procedurally defaulted.
As to Claim Three, the court notes that it also was procedurally defaulted because petitioner
failed to raise it in any direct appeal. In fact, petitioner did not file a direct appeal, even though
Claim Three, relating to the sentencing occurring while the courthouse was closed, could have
been raised and reviewed on direct appeal.
(11th Cir. 1990).
If a petitioner has procedurally defaulted on a constitutional claim, he is barred from
litigating it in a federal habeas corpus proceeding unless he can show adequate “cause” for and
“actual prejudice” from the default, or by showing that failing to consider the claim is a
fundamental miscarriage of justice. Engle v. Isaac, 456 U.S. 107, 102 S. Ct. 1558, 71 L. Ed. 2d
783 (1982); Wainwright v. Sykes, 433 U.S. 71, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977); Wilson
v. Jones, 902 F.2d 923, 925 (11th Cir. 1990). The “cause and prejudice” test of Engle v. Isaac
and Wainwright v. Sykes is in the conjunctive; therefore, the petitioner must prove both cause
and prejudice. The United States Supreme Court summarized the “cause” standard in the
In Wainwright v. Sykes, 433 U.S. 72 (1977), this Court adopted the “cause and
prejudice” requirement of Francis v. Henderson, supra, for all petitioners seeking
federal habeas relief on constitutional claims defaulted in state court. The Sykes
Court did not elaborate upon this requirement, but rather left open “for resolution
in future decisions the precise definition of the ‘cause-and-prejudice’ standard.”
433 U.S. at 87. Although more recent decisions likewise have not attempted to
establish conclusively the contours of the standard, they offer some helpful
guidance on the question of cause. In Reed v. Ross, 468 U.S. 1 (1984), the Court
explained that although a “tactical” or “intentional” decision to forgo a procedural
opportunity normally cannot constitute cause, id. at 13-14, “the failure of counsel
to raise a constitutional issue reasonably unknown to him is one situation in
which the [cause] requirement is met.” Id. at 14. The Court later elaborated upon
Ross and stated that “the existence of cause for a procedural default must
ordinarily turn on whether the prisoner can show that some objective factor
external to the defense impeded counsel’s efforts to comply with the State’s
procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). We explained
that “a showing that the factual or legal basis for a claim was not reasonably
available to counsel, . . . would constitute cause under this standard.” Ibid.
Amadeo v. Zant, 486 U.S. 214, 221-22, 108 S. Ct. 1771, 100 L. Ed. 2d 249 (1988).
The petitioner also must demonstrate that he was prejudiced; he must show “not merely
that the errors . . . created a possibility of prejudice, but that they worked to his actual and
substantial disadvantage, infecting his entire trial with error of constitutional dimensions.”
United States v. Frady, 456 U.S. 152, 170, 102 S. Ct. 1584, 71 L. Ed. 2d 816 (1982) (emphasis in
original). A federal habeas court, however, will consider a procedurally defaulted claim in the
absence of cause if a “fundamental miscarriage of justice” has “probably resulted in the
conviction of one who is actually innocent.” Smith v. Murray, 477 U.S. 527, 537-38, 106 S. Ct.
2661, 91 L. Ed. 2d 434 (1986) (quoting, respectively, Engle, 456 U.S. at 135, and Murray, 477
U.S. at 496).
Petitioner has not shown “cause and prejudice” excusing the procedural default with
respect to any of his claims. As to each of the ineffective assistance of counsel claims in Claims
One, Two, Four, and Five, he was fully aware of the facts relating to his counsel’s representation
of him, yet he failed to even file a state Rule 32 petition seeking a remedy. The one-year
limitation for doing so now has expired. Petitioner argues that he did not learn until recently
that, contrary to counsel’s representations to him, his wife and brother did not plan to testify
against him. Even so, he was keenly aware of what those witnesses could or could not have said
in testimony, yet he chose to plead guilty to the lesser charge. Moreover, he has shown no
reason why, even after he pleaded guilty, he could not have determined from his wife and
brother much sooner that counsel’s representations about them were false. He has not shown
that he was prevented from asserting these claims of ineffective assistance of counsel in a timely
Rule 32 petition.
Petitioner also has failed to show prejudice, as the second requirement of excusing
procedural default. None of the claims presented have merit. As to Claim One, counsel’s failure
to contact Brian Studdard does not mean that Studdard could have been an exculpatory witness
for petitioner. All Studdard could have said is that he overheard Colin Law admit to planting the
marijuana with which petitioner was charged. Not only is there no evidence that Law would
admit to this, it also does not prove that petitioner was not involved.
The allegations of
ineffective assistance in Claim Two related to a totally different federal proceeding, not the state
charge at issue in this case. In Claim Three, petitioner argues that he was sentenced while the
courthouse was closed for inclement weather, but he does not allege that this resulted in any
difference in the sentence he received. In Claim Four he alleges nothing more than that counsel
“coerced” him into pleading guilty by advising him of the sentencing consequences in the event
he were convicted at trial. It is not coercion for counsel to fully inform his client of the
alternatives the client faces, including the prospect that conviction can carry a long, harsh
sentence. Finally, in Claim Five, he alleges that counsel tricked him into pleading guilty by
telling him that his wife and brother would testify against him if he went to trial. In fact,
petitioner’s wife admits in her affidavit that she already had testified at petitioner’s revocation
hearing (thereby waiving any marital privilege) and that she “had a thought” that petitioner
might be growing marijuana. Also, petitioner’s brother admits that authorities were arranging
for him to be transported from his own prison cell to testify at petitioner’s trial, even though he
adamantly claims he would have refused to do so. In planning for trial, it was not unreasonable
for counsel to fear and plan for the prospect of these two witnesses testifying against petitioner.
For these reasons, none of petitioner’s claims are meritorious and, therefore, he suffers no
prejudice from the court’s refusal to consider them.
He has also not made a showing of factual innocence so that the claims can be considered
under the “fundamental miscarriage of justice” exception. In Claim Four of his habeas petition,
as amended, Petitioner argues that newly discovered evidence (the affidavits of his wife, brother,
and Brian Studdard and a handwritten note from his trial attorney) illustrates that he actually is
innocent and that denying his habeas petition would constitute a fundamental miscarriage of
justice. The Supreme Court made clear in Schlup v. Delo that “habeas corpus petitions that
advance a substantial claim of actual innocence are extremely rare.”
513 U.S. 298, 321, 115
S. Ct. 851, 864, 130 L. Ed. 2d 808 (1995). In order to advance a claim of actual innocence, the
petitioner must “show that it is more likely than not that ‘no reasonable juror’ would have
convicted him.” Schlup, 513 U.S. at 329, 115 S. Ct. at 868. A sufficient showing “requires the
petitioner to produce new reliable evidence – whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical evidence – that was not presented at trial.”
Melson v. Allen, 548 F.3d 993, 1002 (11th Cir. 2008), quoting Arthur v. Allen, 452 F.3d 1234,
1243 (11th Cir. 2006), quoting Schlup, 513 U.S. at 324. (internal quotations omitted). The Fifth
Circuit Court of Appeals has noted that, in addition to exculpatory scientific evidence,
trustworthy eyewitness accounts, and certain physical evidence, “credible declarations of guilt
by another” are examples of the types of new, reliable evidence that may be used to establish
factual innocence. Fairman v. Anderson, 188 F.3d 635, 644 (5th Cir. 1999), citing Schlup, 513
U.S. at 324; Sawyer v. Whitley, 505 U.S. 333, 340, 112 S. Ct. 2514, 120 L. Ed. 2d 269 (1992).
A threshold question is whether the evidence proffered in support of an innocence claim
is new. “New evidence” has not been defined by the Supreme Court or the Eleventh Circuit
Court of Appeals in the context of the actual innocence gateway, but the Fifth Circuit Court of
Appeals, evaluating both a free-standing actual innocence claim and a “gateway” claim in Lucas
v. Johnson, 132 F. 3d 1069, 1074 (5th Cir. 1998), set the same evidentiary standard for both.
That court noted that “much of the evidence alleged by Lucas to be newly discovered is neither
new nor newly discovered, but in its essence and character, was presented, or available to
present, to the trial jury.” Id. That court went on to require a showing that: “(1) the evidence is
newly discovered and was unknown to the defendant at the time of trial; (2) the defendant’s
failure to detect the evidence was not due to a lack of diligence; (3) the evidence is material, not
merely cumulative or impeaching; and (4) the evidence would probably produce acquittal at a
new trial.” 132 F.3d at 1075 n.3.
Similarly, both the Seventh and Eighth Circuit Courts of
Appeals have required that a claim of actual innocence be brought within a year of the date on
which the facts could have been discovered through the exercise of due diligence. Araujo v.
Chandler, 435 F.3d 678, 680-81 (7th Cir. 2005), cert. denied, 549 U.S. 820 (2006) (finding that
the petitioner failed to exercise the requisite diligence in bringing to federal court the facts he
claimed show that he is innocent); Flanders v. Graves, 299 F.3d 974 (8th Cir. 2002), cert. denied,
537 U.S. 1236 (2003). In the Tenth Circuit, the appellate court has required that a petitioner
demonstrate due diligence in addition to satisfying the “high actual innocence standard.”
Fleenor v. Scott, 37 Fed. Appx. 415, 417 (10th Cir. 2002).
Once the petitioner has come forward with new evidence, a habeas court next must
evaluate the reliability of that evidence. The court may consider “the timing of the submission
and the likely credibility of the affiants” in judging the reliability of the evidence. Melson, 548
F.3d at 1002. The court is “not required to test the new evidence by a standard appropriate for
deciding a motion for summary judgment.” Bosley v. Cain, 409 F.3d 657, 664 (5th Cir. 2005),
cert. denied, 547 U.S. 1208 (2006).
The court not only reaches its own decisions about
credibility and reliability, the court further must assess “the likely impact of this new evidence
on reasonable jurors.” 548 F.3d at 1002.
It has been noted that “[n]ew evidence that merely
undermines the state's theory of the case but does not rebut specific jury findings of guilt is
insufficient to demonstrate actual innocence.” Buckner v. Polk, 453 F.3d 195, 200 (4th Cir.
2006), cert. denied, 549 U.S. 1284 (2007).
Because of the importance of the evaluation of actual innocence, a district court “is not
bound by the rules of admissibility that would govern at trial” and can consider evidence that is
“claimed to have been wrongly excluded” or which “became available only after the trial.”
Schlup, 513 U.S. at 328. Although inadmissible evidence may be considered, its reliability still
must be evaluated by the court. Similarly, the district court may evaluate the credibility of
witnesses who testified at trial in light of the newly discovered evidence. 518 U.S. at 330-32. A
petitioner meets the threshold requirement if he persuades the district court that, in light of the
new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a
reasonable doubt. 513 U.S. at 327. Consequently, the burden that Petitioner must meet in order
to prevail is to establish by “new, reliable evidence” that it is more likely than not that no
reasonable juror would have convicted him in light of the new evidence. He must do more than
show that a reasonable doubt exists in light of the new evidence. See, e.g., Bosley v. Cain, 409
F.3d 657, 664 (5th Cir. 2005).
It has been noted that actual innocence “means factual innocence, not mere legal
insufficiency.” Bousley v. United States, 523 U.S. 614, 623, 118 S. Ct. 1604, 140 L. Ed. 2d 828
(1998). Actual innocence means that the person convicted did not commit the crime. Rodriquez
v. Johnson, 104 F.3d 694, 697 (5th Cir. 1997), cert. denied, 520 U.S. 1267 (1997), quoting
Johnson v. Hargett, 978 F.3d 855, 859-60 (5th Cir. 1992), citing McCleskey v. Zant, 499 U.S.
467, 111 S. Ct. 1454, 113 L. Ed. 2d 517 (1991).
“Even if the court, as one reasonable
factfinder, would vote to acquit, the court must step back and consider whether the petitioner's
evidentiary showing most likely places a finding of guilt beyond a reasonable doubt outside of
the range of potential conclusions that any reasonable juror would reach.” Doe v. Menefee, 391
F.3d 147, 173 (2d Cir. 2004). In other words, a court may determine that, as factfinder, it would
return a verdict of not guilty, yet still reject a petitioner’s argument that he is actually innocent.
See, e.g., Lambert v. Blackwell, 134 F.3d 506 (3d Cir. 1997), cert. denied, 532 U.S. 919 (2001).
As the Eleventh Circuit Court of Appeals noted in Melson, “[t]he demanding nature of the
Schlup standard ensures that only the ‘extraordinary’ case will merit review of the procedurally
barred claims.” 548 F.3d at 1002.
In the instant case, Petitioner’s claims of actual innocence rest on the affidavits of
Michelle Chandler and Phillip Chandler (Petitioner’s wife and brother), and a handwritten note
from Petitioner’s trial counsel stating, “I know you were not guilty and wanted to go to trial.”
None of the evidence presented by Petitioner constitutes “new” evidence under Schlup. The
note from Petitioner’s attorney was dated June 2, 2011. (Doc. 1-2, p. 25). Petitioner did not file
the instant habeas petition for almost a year after receiving the note. Petitioner did not exhibit
due diligence by failing to take any action concerning the letter for eleven months.
even if the court were to consider the letter to be “new” evidence at the time of the habeas
petition, the letter is not exculpatory scientific evidence, a trustworthy eyewitness account,
critical physical evidence, or any type of evidence that illustrates Petitioner’s actual innocence.
A subjective statement of belief that Petitioner was innocent is far from proof that Petitioner did
not commit the crime, which is the type of proof required to open the actual innocence gateway.
The affidavits from petitioner’s wife and brother also are not “new” evidence for habeas
purposes. Petitioner admits that he has spoken to his wife, Michelle, on more than one occasion
since his conviction.
He could have acquired the information in the affidavit from her during
any of those conversations. Instead, Petitioner waited until at or around August 1, 2014, to have
her prepare an affidavit. Accordingly, petitioner cannot show that the evidence contained in
Michelle’s affidavit was not available prior to trial or shortly after trial. Even if the evidence
could be considered “new,” petitioner cannot show that he diligently pursued the evidence.
Moreover, his delay in presenting such evidence is a factor weighing heavily against its
credibility. Petitioner claims that he did not speak to his brother from 2010 to July 2014, and,
therefore, his affidavit is newly discovered evidence.
It appears from Phillip Chandler’s
affidavit that he was incarcerated during the time of petitioner’s trial. Therefore, the ease with
which petitioner could have contact with Phillip and discover the evidence in the affidavit is
questionable. However, even if the evidence in Phillip’s affidavit is “new” for habeas purposes,
the affidavit does not contain any exculpatory evidence. It simply says that Phillip had no
intention of testifying against petitioner at trial (contrary to what petitioner’s attorney had told
Even if the note from petitioner’s trial attorney and the affidavits of his wife and brother
were newly discovered, petitioner cannot show that, in light of the information in the affidavits,
“no reasonable juror would have convicted” him. Schlup, 513 U.S. at 327. Neither of the
affidavits contains evidence of petitioner’s actual innocence, nor does the note from petitioner’s
trial attorney. Nothing in the affidavits or the note suggests that petitioner has discovered new
material evidence showing he is actually innocent.
Petitioner has presented no evidence
unavailable at or shortly after trial that, had it been presented at a trial, would likely have
resulted in an acquittal.
Petitioner does, however, include an affidavit from Brian Studdard in his original habeas
petition. (Doc. 1-1). Studdard’s affidavit states that he told Chandler while they were both
incarcerated at the Calhoun County Jail that another individual had told Studdard that he (not
Chandler) had planted the marijuana plants for which Chandler ultimately was arrested.
Studdard claims that he informed Chandler he would testify on his behalf, but Chandler’s
attorney never approached Studdard. While the affidavit may contain the type of exculpatory
evidence contemplated by the “actual innocence” doctrine, Studdard’s testimony was available
to Chandler well before trial.4 Accordingly, Chandler cannot now invoke the actual innocence
doctrine to introduce Studdard’s affidavit as “new evidence.” For all of the above reasons,
Chandler has failed to meet the demanding standard of “actual innocence,” and the instant
petition cannot now be considered.
Based on the foregoing considerations, the court finds that the petition for writ of habeas
corpus, as amended, is due to be denied and dismissed with prejudice. A separate order will be
4 It is also unlikely that Studdard’s testimony would have been admissible due to the hearsay rule.
DONE this the 17th day of November, 2015.
SHARON LOVELACE BLACKBURN
SENIOR UNITED STATES DISTRICT JUDGE
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