Means v. State of Alabama, et al
MEMORANDUM OPINION ADOPTING and ACCEPTING the 10 MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION. Signed by Judge Virginia Emerson Hopkins on 3/3/2016. (JLC)
2016 Mar-03 PM 03:38
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA
Case No. 2:15-cv-80-VEH-TMP
STATE OF ALABAMA, and the
ATTORNEY GENERAL of the
STATE OF ALABAMA,
The magistrate judge filed his report and recommendation on November 30, 2015,
recommending dismissal of petitioner's 28 U.S.C. § 2255 petition. (Doc. 10). Petitioner
requested and received an extension of time in which to file objections, and on January
4, 2016, objections were filed. (Doc. 13).1 Having now carefully considered de novo all
the materials in the court file, including the report and recommendation and the
objections, the court is of the opinion that the magistrate judge's report is due to be
ADOPTED and the recommendation ACCEPTED.
Petitioner also filed, on January 27, 2016, a request for a polygraph testo to prove he is
not guilty. (Doc. 15). In that document, he also requests a hearing. Those requests are DENIED.
The undersigned initially notes that, on August 17, 2015, Petitioner filed a Motion
To Amend. (Doc. 9). That motion was granted by the magistrate judge in his report and
recommendation. (Doc. 10 at 7) (“The motion to amend is GRANTED, and the
argument and authorities set forth therein have been considered by the court.”). The
undersigned agrees with the magistrate judge that the motion to amend does not “seek
to add additional claims, but does offer additional argument and support for his claim.”
(Doc. 10 at 7). The undersigned, like the magistrate judge, has considered that
additional argument and support.
As noted in the Report and Recommendation, the petition was filed on or about
January 16, 2015 “on a form used by prisoners in state custody seeking relief pursuant
to 28 U.S.C. § 2254.” (Doc. 10 at 1). However, Petitioner is and “has been in federal
custody continuously since 1995.” And, although the form used by Petitioner asserts §
2254 as its basis, it is clear that his substantive assertion is that the federal district judge
erred in “increas[ing] his punishment” based on his prior state court convictions in 1977
and 1989 for “simple drug possession.” (See doc. 9 at 1, citing United States Sentencing
Guidelines § 4B1.1). Thus, the magistrate judge properly treated the petition as brought
pursuant to 28 U.S.C. § 2255, and not § 2254. (Doc. 10 at 8) (“[I]t is clear that the
instant petition must be treated as one brought pursuant to § 2255 because it attacks the
use of the 1989 [state court] conviction to enhance a federal sentence for which
[Petitioner] is now in custody.”).
Petitioner sets out two grounds for relief, as follows.
I WAS CONVICTED BY JURY AND RECEIVED LIFE IMPRISONMENT IN
1983; AND I WAS PAROLE IN 1988. ITS VERY HIGHLY IMPOSSIBLE
FOR ME, TO BE IN TWO PLACES AT THE SAME TIME.
ITS NO WAY POSSIBLE THAT I COULD'VE COMMITTED THIS CRIME
FOR THE SALE OF $25.00 IN COCAINE (POWDER) IN 1986 OF
ATTORNEY DRISKELL FAILED TO MAKE ANY ATTEMPT TO USE THE
INFORMATION GIVEN HIM. INFORMATION THAT WOULD HAVE
VINDICATED ME OF ANY WRONG DOING, BECAUSE THE
INFORMATION HE POSSESSED WAS REQUISITE.
NEXT, BECAUSE OF COERCION, I ALTERED MY NOT GUILTY PLEA.
AN APPEAL WAS TAKEN, BUT WITHOUT MY CONSENT OR
KNOWLEDGE, THE APPEAL WAS WITHDRAWNED BY MY ATTORNEY,
(Doc.1 at 16).
THE REPORT AND RECOMMENDATION
The magistrate judge determined that, whether viewed under 28 U.S.C. § 2255
or 28 U.S.C. § 2254, the petition was successive,2 was brought without permission of
the United States Court of Appeals, and thus was due to be dismissed without prejudice
on the basis that this court lacks jurisdiction to hear successive petitions brought without
appellate permission. (Doc. 10 at 7-8) (“28 U.S.C. § 2244(b)(3) limit[s] the ability of
district courts to consider habeas claims under both § 2254 and § 2255 brought in
‘second or successive petitioners or motions.” *** Without ‘pre-clearance from the
court of appeals, the district court simply lacks authority to consider a ‘second or
The magistrate judge also determined, in the alternative, that “even if the motion
were not successive, it still is due to be dismissed as time-barred by the one-year period
of limitation applicable [both] to petitioners filed pursuant to § 2254 or motions filed
pursuant to § 2255.” (Doc. 10 at 9). Further, and also alternatively, the magistrate judge
concluded that “the issue raised [actual innocence of his prior state court convictions]
is procedurally defaulted because the movant never timely challenged the state-court
conviction, and because he failed to raise the issue in his first § 2255 motion. (Id. at 910). Finally, and also alternatively, the magistrate judge concluded that “the claim is
precluded from review because it already has been addressed on the merits in this
“When viewed as a § 2255 claim, it is the movant’s fourth motion to vacate the
sentence.” (Doc. 10 at 9); “If construed as a § 2254 petition, it is his second, successive petition,
and is also subject to dismissal without prejudice.” (Id. at 9 fn 4).
court.” (Id. at 10).
In his Objections, the Petitioner asserts the following factual error in the Report
and Recommendation: “The court alleged that an appeal was not taken in case no.
CC:89 000992 which is untrue.” (Doc. 13 at 1). However, Petitioner then goes on to
state that “Moreover, an appeal were [sic] filed August 9, 1989, but on September 6,
1989, the appeal was withdrawned [sic] by his attorney Dwight Driskell without his
[Petitioner’s] knowledge.” Petitioner’s “facts” establish that the challenged error has no
impact on the analysis. Although it would have been better if the magistrate judge had
said that “although an appeal was filed, it was withdrawn,” this change in wording has
no impact on the magistrate judge’s analysis. Further, Petitioner never explains why he
didn’t know (and shouldn’t, in the exercise of due diligence, have known) from
September 6, 1989 until he filed this Petition in January of 2015 that the state court
appeal had been withdrawn.3
The court has also considered the legal arguments raised in Petitioner’s
Objections. First, Petitioner relies on McQuiggin v. Perkins, 133 S. Ct. 1924 (2013) as
The court notes that, attached to his Objections, Petitioner has filed a partial case
disposition sheet for the 1989 case and the page that is attached shows that his counsel moved for
leave of court to withdraw the appeal (docket entry date 9/5/89), that the motion was granted and
the appeal dismissed (docket entry dated 9/6/89) and that a “Certificate of Dismissal no opinion”
was entered and “Notice mailed to deft.” (Docket entry dated 9/14/89). (Doc. 13 at 5).
factually similar and supporting his claim. In that case, the United States Supreme Court
held that “actual 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.” McQuiggin, 133 S.Ct. at 1928. However, the Supreme
Court took care to note: “We caution, however, that tenable actual-innocence gateway
pleas are rare: ‘[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.
(quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)).
Accordingly, to the extent that the Report and Recommendation asserts
procedural bars or time limitations as a basis to dismiss Petitioner’s claim of actual
innocence (of the 1989 state court drug distribution offense), the Objections are due to
be, and hereby are, SUSTAINED. However, to the extent that the Report and
Recommendation asserts procedural bars or time limitations as a basis to dismiss
Petitioner’s ineffective assistance of state court counsel claim, the Objections are due
to be, and hereby are, OVERRULED. The undersigned adopts all the factual findings
of the report and accepts the recommendation that Petitioner’s ineffective assistance of
state court counsel claim be DISMISSED WITHOUT PREJUDICE for all of the
alternative reasons stated in the Report and Recommendation.
PETITIONER’S “ACTUAL INNOCENCE” BASED CLAIM
The undersigned will now examine the merits of Petitioner’s “actual innocence”
Here, Petitioner has pointed to no “new evidence.” Rather, he asserts but does
not establish that he was in state custody on December 30, 1986, and so could not have
committed that crime. (Doc. 13 at 1) (“For the sake of arguement [sic], its [sic] highly
impossible for him to be in two (2) place [sic] at the same time when the alleged crime
committed on December 30, 1986, he was paroled from the life sentence in 1988.”
(emphasis in original). The undersigned finds that it is similarly “highly impossible” for
Petitioner not to know that he was in state custody in 1986. Thus, any evidence of his
custodial status in 1986 is not “newly discovered.” Further, it not “highly impossible”
for a person in custody to commit a crime, including a “SALE OF $25.00 IN COCAINE
(POWDER)” (doc. 1 at 16). Additionally, even assuming the sale of cocaine that was
the crime of conviction in CC 89 000992 occurred somewhere other than where
Petitioner was confined, the documents that Petitioner relies upon to show that he was
in state custody on December 30, 1986 are not in a form that would be admissible at
trial and further do not establish that he was in custody on December 30, 1986.
The documents that Petitioner relies upon to show his actual innocence are found
in document 13 at pages 7 and 9. Only the document at page 9 is a Shepard type
document. It is a Judgment Entry and shows that the Petitioner was convicted in 1983
by a state court jury of Theft of Property 1st degree and sentenced to “life [in prison]”.
(Doc. 13 at 9). The document at page 7 is a statement by Charles W. Edwards Probation
& Parole Officer, Senior; it is signed and notarized on 9/4/2014. That document is not
a Shepard type document. It states that is a “very brief summary of [Mr. Edwards’s]
supervision of [Petitioner] as it relates to his criminal record in the 1980's.” The court
acknowledges that Mr. Edwards’s statement, if considered, is consistent with Petitioner
having been convicted of Theft I and sentenced to Life and then having been paroled
from that offense on 6-27-88. (See id.). However, Mr. Edwards’s statement does not say
that; the reader must infer it. Further, the statement is not under oath, an affidavit, or
made on personal information. Finally, it states that it is a “very brief summary.” Thus,
the undersigned will not draw inferences from the limited statements made.
The undersigned finds that Petitioner has not made a colorable showing in light
of “new evidence” that he is actually innocent of his 1989 conviction or, indeed, of any
It is therefore ORDERED that
1. The Motion To Amend (doc. 9) is GRANTED.
2. The claim for habeas corpus relief pursuant to 28 U.S.C. § 2255 in the abovestyled cause is hereby DENIED and DISMISSED WITHOUT PREJUDICE.
3. Alternatively, the claim for habeas corpus relief pursuant to 28 U.S.C. § 2254
in the above-styled cause is hereby DENIED and DISMISSED WITHOUT
DONE this the 3rd day of March, 2016.
VIRGINIA EMERSON HOPKINS
United States District Judge
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