Wilson v. Gordy et al

Filing 17

MEMORANDUM OPINION. Signed by Judge Madeline Hughes Haikala on 9/11/2015. (KEK)

FILED
2015 Sep-11 AM 10:13
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CHARLIE JOE WILSON, JR.,
Petitioner,
v.
WARDEN CHRISTOPHER
GORDY and THE ATTORNEY
GENERAL FOR THE STATE
OF ALABAMA,

)
)
)
)
)
)
)
)
)
)
)

Case No: 2:14-cv-02219-MHH-JHE

Respondents.
MEMORANDUM OPINION
On July 17, 2015, Magistrate Judge John England entered a report
concerning Mr. Wilson’s 28 U.S.C. § 2254 habeas petition. (Doc. 15). Judge
England recommended that the Court dismiss Mr. Wilson’s petition because the
petition is time-barred. Mr. Wilson filed objections to Judge England’s report.
(Doc. 16). For the reasons stated below, the Court overrules those objections and
accepts Judge England’s recommendation.
STANDARD OF REVIEW
A district court “may accept, reject, or modify, in whole or part, the findings
or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C).
When a party objects to a report and recommendation, the district court must
“make a de novo determination of those portions of the report or specified

proposed findings or recommendations to which objection is made.” Id. The
Court reviews for plain error the portions of the report or proposed findings to
which no objection is made. Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11th Cir.
1993); see also United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983) (per
curiam), cert. denied, 464 U.S. 1050 (1984) (“The failure to object to the
magistrate’s findings of fact prohibits an attack on appeal of the factual findings
adopted by the district court except on grounds of plain error or manifest
injustice.”) (internal citation omitted); Macort v. Prem, Inc., 208 Fed. Appx. 781,
784 (11th Cir. 2006).
DISCUSSION
A.

Objection 1

Mr. Wilson argues that the Court should allow him to pursue his federal
statutory claims under 42 U.S.C. §§ 1985 and 1986 and 18 U.S.C. § 242 in
conjunction with his habeas petition. Mr. Wilson urges the Court to exercise
supplemental jurisdiction over the federal claims pursuant to 28 U.S.C. § 1367.
(Doc. 16 at 2-3). The Court would have original jurisdiction over the federal civil
law claims, but Mr. Wilson may not assert those claims in this habeas action.1

1

A habeas proceeding is characterized as a civil proceeding. Anderson v. Singletary, 111 F.3d
801, 804 (11th Cir. 1997) (habeas actions “are independent civil dispositions of completed
criminal proceedings” and the “‘civil’ label is attached to habeas proceedings in order to
2

“‘[T]he essence of habeas corpus is an attack by a person in custody upon
the legality of that custody, and . . . the traditional function of the writ is to secure
release from illegal custody.’” Akinruntan v. Holder, 2013 WL 5999982, at *7
(N.D. Ala. Sept. 30, 2013) (quoting Preiser v. Rodriguez, 411 U.S. 475, 484
(1973)). Causes of action that do not challenge either the fact or duration of a
petitioner’s custody are not proper for a habeas petition. Id. (citing, among others,
Muhammad v. Williams-Hubble, 380 Fed. Appx. 925, 926-27 (11th Cir. 2010);
Standifer v. Ledezma, 653 F.3d 1276, 1280 (10th Cir. 2011); Robinson v. Sherrod,
631 F.3d 839, 840-41 (7th Cir. 2011); Martin v. Overton, 391 F.3d 710, 714 (6th
Cir. 2004)). As the magistrate judge stated, to pursue those non-habeas civil
claims, Mr. Wilson must file a separate civil action and pay a higher filing fee. See
Griffin v. Florida, 2011 WL 5299665, at *5 (N.D. Fla. Sept. 29, 2011); 28 U.S.C. §
1914(a). Therefore, the Court overrules Mr. Wilson’s first objection.
B.

Objection 2

Mr. Wilson’s second objection concerns Judge England’s findings regarding
the timeliness of Mr. Wilson’s claims. Mr. Wilson acknowledges that his claims
are untimely, but he argues that three of his six claims are jurisdictional, and the
Court may consider jurisdictional challenges at any time.

(Doc. 16 at 3-4).

distinguish them from ‘criminal’ proceedings. . . .”) (internal quotation marks and citation
omitted). 18 U.S.C. § 242 is a criminal statute, not a civil statute.
3

Specifically, Mr. Wilson contends that: (1) there was no probable cause for arrest,
so the convicting state court did not have subject-matter jurisdiction; (2) the
prosecution was aware of fabricated evidence and perjured testimony; and (3) he is
actually innocent. (Id. at 3). Wilson also argues that equitable tolling applies
“under truly extraordinary circumstances,” and his claims are not procedurally
defaulted if review is necessary to correct a fundamental miscarriage of justice.
(Id. at 4).
In support of his jurisdictional argument, Mr. Wilson cites an Alabama state
case for the proposition “[a]n allegedly illegal sentence may be challenged at any
time.” (Id. at 4) (quoting Henderson v. State, 895 So. 2d 364, 365 (Ala. Ct. Crim.
App. 2004)).2 State authority is not binding and does not exempt Mr. Wilson’s
claims from the federal statute of limitations for habeas petitions. See Pope v.
Butler, 2012 WL 4479263, at *1 (N.D. Ala. Sept. 24, 2012) (“[A]ny
characterization by the Alabama courts regarding whether any of [the petitioner]’s
claims is considered ‘jurisdictional’ under state law is immaterial to whether such
claims are subject to the one-year statute of limitations contained in 28 U.S.C. §
2244(d) when asserted in a § 2254 habeas petition.”) (and cases cited therein);
Owens v. Mitchem, 2012 WL 4009335, at *3 n.3 (N.D. Ala. July 10, 2012) (and
2

Mr. Wilson also cites Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir. 2003), but that
opinion does not address jurisdictional issues.
4

cases cited therein). Of the three “jurisdictional” claims that Mr. Wilson identifies,
the first two are defaultable, see Pope, 2012 WL 4479263, at *1 (holding questions
of state-court jurisdiction are defaultable); Davis v. Terry, 465 F.3d 1249, 1253 n.4
(11th Cir. 2006) (acknowledging that petitioner’s claims, including a Giglio claim
like Mr. Wilson’s, were defaulted), and Judge England addressed the third claim,
(Doc. 15 at 4-6). Judge England also addressed Mr. Wilson’s brief statements
about tolling and the fundamental-miscarriage-of-justice exception in his report.
(See id. at 3-6).3 The Court overrules this objection.
C.

Objection 3

Mr. Wilson’s third objection is that the magistrate judge contradicted
himself when the judge stated that Mr. Wilson has not presented new, reliable
evidence not available at the time of trial. (Doc. 16 at 4-5). Mr. Wilson contends
that he offered affidavits that constitute new evidence because the affidavits postdate the trial, and the affidavits contain “trust worthy eye witness accounts.” (Id. at
5).

3

The fundamental-miscarriage-of-justice exception also is called the actual-innocence exception.
See Herrera v. Collins, 506 U.S. 390, 404, 113 S. Ct. 853, 862 (1993) (“This rule, or
fundamental miscarriage of justice exception, is grounded in the ‘equitable discretion’ of habeas
courts to see that federal constitutional errors do not result in the incarceration of innocent
persons.”).
5

Mr. Wilson misunderstands the standard that he must satisfy. Assuming for
the sake of argument that the affidavits constitute “new” evidence,4 the evidence
must convince the Court that “it is more likely than not that no reasonable juror
would have found petitioner guilty beyond a reasonable doubt.” Schlup v. Delo,
513 U.S. 298, 327 (1995) (emphasis added). Actual innocence:
does not merely require a showing that a reasonable doubt exists in
the light of the new evidence, but rather that no reasonable juror
would have found the defendant guilty. It is not the district court’s
independent judgment as to whether reasonable doubt exists that the
standard addresses; rather the standard requires the district court to
make a probabilistic determination about what reasonable, properly
instructed jurors would do. Thus, a petitioner does not meet the
threshold requirement unless 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.
Id. at 329. Mr. Wilson’s affidavits do not make such a showing alone or in
combination with the alleged contradictions in the other trial evidence.5 The Court
overrules this objection.

4

The Eleventh Circuit has left open the question of whether “evidence that was available at trial
but was simply not presented should be considered ‘new’ under Schlup.” Rozzelle v. Sec’y,
Florida Dep’t of Corr., 672 F.3d 1000, 1018 n.21 (11th Cir. 2012). The Court does not have to
answer the question with regard to Mr. Wilson’s evidence, which was available at the time of
trial, because that evidence is not sufficient to establish actual innocence.
5

Mr. Wilson also presents what appears to be a due-process argument based on the accused’s
right to compel testimony at trial. (Doc. 16 at 5-6). Even if this were a viable basis for
objection, the magistrate judge considered Mr. Wilson’s affidavit testimony and found, as the
undersigned has, that it does not meet the high bar of an actual-innocence claim. (See Doc. 15 at
5-6).
6

D.

Objection 4

Mr. Wilson next objects to the magistrate judge’s recommendation that the
Court deny the pending motions for discovery and appointment of counsel. (Docs.
3, 4; Doc. 16, p. 6). Mr. Wilson contends that if the Court were to grant his
motions, the state’s only witness at trial would be the witness under investigation
for the murder. (Id.). Mr. Wilson cites authority for the proposition that discovery
under the Federal Rules of Civil Procedure permits a broad search. (Id. at 6-7).
The Federal Rules of Civil Procedure do not exclusively govern discovery
and expansion of the record in habeas cases. See Rule 12, RULES GOVERNING
SECTION 2254 CASES (“The Federal Rules of Civil Procedure, to the extent they are
not inconsistent with any statutory provisions or these rules, may be applied to a
proceeding under these rules.”). “Generally, a habeas petitioner is not entitled to
discovery as a matter of ordinary course, but [discovery] may be obtained upon
showing ‘good cause’ to believe that the evidence sought would raise sufficient
doubt about his guilt to undermine confidence in the result of the trial.” Arthur v.
Allen, 459 F.3d 1310 (11th Cir. 2006) (internal citations and quotation marks
omitted). “Good cause” requires specific allegations showing reason to believe the
petitioner may be able to demonstrate he is entitled to relief if the facts are fully
developed; therefore, mere speculation is insufficient.
7

Id. at 1310-11.

“The

petitioner must make [this] threshold showing of actual innocence to warrant a
hearing.” Sibley v. Culliver, 377 F.3d 1196, 1206 (11th Cir. 2004) (quoting, with
approval, Oswald v. Gammon, 51 F.3d 277 (8th Cir. 1995)).
In his motion to expand the record and for discovery, Mr. Wilson appears to
seek records, reports, and transcripts from the police investigation and court
records, (Doc. 4 at 3); the records of the fire department and rescue units, (id.); the
reports made by all of the personnel listed in the “Event Chronology,” attached to
the motion, (id. at 4-5; id. at 19-21); “all of the information” from all personnel of
the Birmingham Police Department, all 911 operators, all of the rescue agencies,
(id. at 5); all witness statements and pre-trial court records, (id. at 6); and a report
from Officer Mullins, which Wilson assumes must exist, (id. at 7). Mr. Wilson
does not explain why he needs all of these documents.

Instead, he simply

represents that he “needs” them, (id. at 3); he “was denied” them as part of the
alleged Brady violation, (id. at 3 & 4); or the documents are “due to be
supplemented,” (id. at 5 & 6). None of these conclusory statements constitutes
good cause for allowing discovery.
At one point, Mr. Wilson mentions that Brian Clark, Justin Hamilton,
Detective Anderson, and Officer Mullins perjured themselves, but Mr. Wilson does
not explain how.

(Id. at 3).

Mr. Wilson mentions several “contradictory
8

statements” that purportedly indicate perjury: (1) Officer Mullins’s incident report,
which states Mullins followed the victim’s car to the impound as Detective
Anderson instructed him to, (id. at 6-7) (citing id. at 24-25); (2) Mr. Wilson’s
probation officer’s report containing facts pulled from the District Attorney’s file,
which sets out the most important details of the incident but does not seem to
outright contradict any of the other statements, (id. at 7) (citing (id. at 26-29); (3)
Officer Deane’s incident report, which gives a brief summary of Brian Clark’s
statement but also does not seem to outright contradict the other statements, (id. at
6) (citing id. at 22-23); and (4) Officer Mullins’s trial testimony, in which Officer
Mullins says Brian Clark found him at another scene and told him about the
shooting, and Officer Mullins drove them both back and was the first officer on the
scene, (id. at 8) (citing id. at 30-40). Mr. Wilson also has said that the “Event
Chronology” contradicts Officer Mullins’s testimony that he was the first officer
on the scene. (Doc. 12 at 8; see also doc. 4 at 19-21).
None of the cited evidence is detailed enough or precise enough to stand out
as blatantly contradictory. Mr. Wilson has not shown good cause to believe further
discovery would uncover evidence that would enable him to meet the high
standard of actual innocence. See Schlup, 513 U.S. at 327, 329. Because good
cause has not been shown for discovery or for a hearing, and the petition is
9

otherwise due to be dismissed, Mr. Wilson’s request for appointment of an
attorney is without merit. The Court overrules the objection.
E.

Objection 5

Mr. Wilson’s fifth objection concerns Judge England’s failure to address Mr.
Wilson’s remaining constitutional claims. (Doc. 16 at 7-8).6 Because Mr. Wilson
admits that his claims are time-barred, (Doc. 16 at 3), the Court may review those
claims on the merits only if Mr. Wilson can successfully pass through the actualinnocence gateway. See McQuiggin v. Perkins, -- U.S. ---, 133 S. Ct. 1924, 1928
(2013) (“[A]ctual innocence, if proved, serves as a gateway through which a
petitioner may pass whether the impediment is a procedural bar . . . or, as in this
case, expiration of the statute of limitations.”).

Because Mr. Wilson has not

established actual innocence, his other constitutional claims are properly dismissed
as untimely without a review of the merits of the claims. The Court overrules this
objection.

6

One of the claims Mr. Wilson contends the magistrate judge should have addressed is a standalone actual innocence claim, but, at this time, courts have not recognized a freestanding claim
for actual innocence in noncapital habeas cases. See Herrera v. Collins, 506 U.S. 390, 400, 113
S. Ct. 853 (1993); Jordan v. Sec. of the Dept. of Corrs., 485 F.3d 1351, 1356 (11th Cir. 2007).
10

CONCLUSION
Based on its consideration of the record in this action, the Court adopts the
magistrate judge’s report and accepts his recommendation. The Court will dismiss
the petition for writ of habeas corpus by separate order.
This Court may issue a certificate of appealability “only if the applicant has
a made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
2253(c)(2). To make such a showing, a “petitioner must demonstrate that
reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong,” Slack v. McDaniel, 529 U.S. 473, 484 (2000), or that
“the issues presented were adequate to deserve encouragement to proceed further.”
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal quotations omitted). The
Court finds that Mr. Wilson’s claims do not satisfy either standard. Mr. Wilson
may apply to the Eleventh Circuit Court of Appeals for a certificate of
appealability. Rule 11, RULES GOVERNING SECTION 2254 CASES.
The Court will issue a separate order consistent with this memorandum
opinion.
DONE and ORDERED this September 11, 2015.

_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE
11