Walker v. Bolling et al
Filing
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MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 8/1/2018. (AFS)
FILED
2018 Aug-01 AM 10:22
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
THOMAS ALVIN WALKER,
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Petitioner,
v.
LEON BOLLING, et al.,
Respondents.
Case No.: 2:16-cv-00316-AKK-JEO
MEMORANDUM OPINION
This is an action for a writ of habeas corpus filed by petitioner Thomas
Alvin Walker, pro se, on or about February 24, 2016. Doc. 1. Walker challenges
his 2009 conviction and sentence for Rape, First Degree, in Dallas County Circuit
Court. Id. at 2. On April 19, 2018, the magistrate judge to whom the case was
referred entered a report and recommendation pursuant to 28 U.S.C. § 636(b),
recommending that habeas relief be denied. Doc. 14. Walker has filed timely
objections to the report and recommendation. Doc. 15.
In his objections, Walker attempts to challenge the factual findings on his
Faretta claim by asserting for the first time that no right to hybrid representation
exists, relying on Cross v. United States, 893 F.2d 1287 (11th Cir. 1990). Doc. 15
at 2.
However, Walker misconstrues Cross, which stated only that a pro se
individual has no constitutional right to serve as co-counsel to an attorney. Cross,
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893 F.2d at 1291–92. This has no relevance to the facts here, as Walker never
attempted to serve as co-counsel to his court-appointed attorney. At trial, the court
clearly instructed Walker that, because he wanted appointed counsel to “step[] in to
represent you, that you’re not going to have the opportunity to speak to this jury
either in opening statements or closing statements; you won’t represent yourself.
You will be the Defendant. You will not be representing yourself or speaking to
this jury unless you choose to testify. Do you understand that?” Doc. 9-3 at 80.
The petitioner stated on the record that he understood the court’s instruction. Id.
Nothing in this objection provides any basis to find that Walker is entitled to
habeas relief.
Walker next objects to the report and recommendation because “the trial
court [had] reason to believe that the petitioner [was] suffering from a mental
disease or defect that . . . grossly affects his ability to understand the present
proceeding and assist in his own defense.” Doc. 15 at 2 (citing Doc. 14 at 10–11).
Walker’s reliance on the report and recommendation for this objection is
misplaced. The magistrate judge quoted the trial court record wherein the trial
judge allowed Walker to fire his court appointed counsel and proceed pro se. Fired
counsel stated “Your Honor, I would insist on a mental evaluation” to which the
court responded, “Mr. Keith, you’ve been fired.” Doc. 14 at 10-11 (citing Doc. 9-3
at 70–74). Other than quoting the adage that “the man that represents himself has a
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fool for a lawyer,” doc. 14 at 10, at no point did the trial court express an opinion
that Walker lacked the mental capacity to understand the proceedings or to assist in
his own defense. This objection is without merit.
Having carefully reviewed and considered de novo all the materials in the
court file, including the magistrate judge’s Report and Recommendation and
Walker’s objections thereto, the court is of the opinion that the magistrate judge’s
findings are due to be and are hereby ADOPTED and his recommendation is
ACCEPTED. Walker’s Objections are OVERRULED. Accordingly, the petition
for writ of habeas corpus is due to be DENIED and DISMISSED WITH
PREJUDICE.
Further, because the petition does not present issues that are
debatable among jurists of reason, a certificate of appealability is also due to be
DENIED. See 28 U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 483–85
(2000). A separate Final Order will be entered.
DONE the 1st day of August, 2018.
_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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