Rhone v. Toney et al

Filing 41

MEMORANDUM OPINION - Mr. Rhone filed timely objections to the report and recommendation. (Doc. 37 ). After de novo review of the record and the report and recommendation, the court OVERRULES Mr. Rhone's objections, WILL DENY the § 2254 petition, and WILL DENY a certificate of appealability. Signed by Judge Annemarie Carney Axon on 9/15/2020. (KEK)

FILED
2020 Sep-15 AM 09:29
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
WALTER LEE RHONE, JR.,
Petitioner,
v.
WARDEN TONEY, et al.,
Respondents.

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Case No. 2:19-cv-00551-ACA-HNJ

MEMORANDUM OPINION
Petitioner Walter Lee Rhone, Jr., filed a pro se 28 U.S.C. § 2254 petition for
writ of habeas corpus, asserting that he received ineffective assistance of counsel in
connection with his conviction for manslaughter. (Doc. 1). The magistrate judge
filed a report recommending that the court deny Mr. Rhone’s § 2254 petition, in part
on the merits and in part as procedurally defaulted. (Doc. 22). Mr. Rhone filed
timely objections to the report and recommendation. (Doc. 37). After de novo
review of the record and the report and recommendation, the court OVERRULES
Mr. Rhone’s objections, WILL DENY the § 2254 petition, and WILL DENY a
certificate of appealability.
In his § 2254 petition, Mr. Rhone contends that trial counsel provided
ineffective assistance in four ways. (Doc. 1). In his first claim, Mr. Rhone argues
that trial counsel should have objected to venue when, during jury deliberations,

prosecutors disclosed that their earlier allegation of venue was mistaken and the
crime actually occurred in a different division of Jefferson County than they had
originally believed. (Id. at 12). The magistrate judge recommended denying this
claim on the merits, finding that the state court’s denial of Mr. Rhone’s claim was
not contrary to or an unreasonable application of Strickland v. Washington, 466 U.S.
668 (1984). (Doc. 22 at 21–27). The magistrate judge also recommended rejecting
Mr. Rhone’s argument that he was entitled to a presumption of prejudice under
United States v. Cronic, 466 U.S. 648 (1984). (Id. at 23–24). Mr. Rhone objects
that he is entitled to the presumption of prejudice set out in Cronic and that he could
establish prejudice under Strickland based on a Second Circuit decision addressing
trial counsel’s ineffectiveness in failing to object to venue. (Doc. 37 at 2–3).
The court OVERRULES those objections. The magistrate judge correctly
applied Strickland to Mr. Rhone’s claim of ineffective assistance of counsel; Cronic
is inapplicable in these circumstances. See United States v. Roy, 855 F.3d 1133,
1144 (11th Cir. 2017) (en banc) (“[T]he Cronic exception . . . provides that prejudice
is to be presumed . . . when a criminal defendant has been completely denied the
right to counsel for a critical stage of the trial . . . .”). Moreover, even if the Second
Circuit decision that Mr. Rhone cites were binding on this court, it is factually
distinguishable from Mr. Rhone’s case. See Cornell v. Kirkpatrick, 665 F.3d 369,
378–82 (2d Cir. 2011).

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Mr. Rhone raises three other ineffective assistance of counsel claims in his
§ 2254 petition: (1) counsel failed to investigate whether a State witness received a
deal in exchange for his testimony, failed to object to that witness’s testimony as
perjury, and failed to adequately cross-examine that witness; (2) counsel failed to
object to part of a jury instruction; and (3) counsel failed to seek a bench trial or to
move for judgment of acquittal on the lesser included offense of manslaughter,
thereby forfeiting any argument challenging the sufficiency of the evidence as to
manslaughter. (Doc. 1 at 5, 18–22, 24–29). The magistrate judge recommended
denying these claims as procedurally defaulted because Mr. Rhone did not exhaust
them in state court and he did not establish cause and prejudice or a manifest injustice
to excuse the default. (Doc. 22 at 27–29).
In his objections to the report and recommendation, Mr. Rhone: (1) reiterates
the merits of the first two claims; (2) argues that he exhausted a sufficiency of the
evidence claim on direct appeal; and (3) argues that he established cause for the
default of his ineffective assistance claim relating to the sufficiency of the evidence
by making an ineffective assistance claim in his state habeas petition. (Doc. 37 at 3–
7).
The court OVERRULES those objections. “Procedural default bars federal
habeas review when a habeas petitioner has failed to exhaust state remedies that are
no longer available . . . .” Butts v. GDCP Warden, 850 F.3d 1201, 1211 (11th Cir.

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2017). A petitioner may avoid a procedural default only if he can establish “cause
for the failure to properly present the claim and actual prejudice, or that the failure
to consider the claim would result in a fundamental miscarriage of justice.” Id.
(quotation marks omitted). To establish cause and prejudice, a petitioner must show
that “some objective factor external to the defense impeded his efforts to raise the
claim properly in the state courts” and that the result of the proceeding would have
been different if he had exhausted the claim. Id. To establish a miscarriage of
justice, a petitioner must prove the existence of a “constitutional violation that has
probably resulted in the conviction of one who is actually innocent.” Id. (quotation
marks and alteration omitted).
Construed liberally, Mr. Rhone’s reiteration of the merits of his claims may
be an attempt to establish that finding his claims to be procedurally defaulted would
be a miscarriage of justice. But even if Mr. Rhone’s claims were meritorious, he
cannot establish a miscarriage of justice excusing a procedural default unless he can
prove his actual innocence. See Butts, 850 F.3d at 1211. Mr. Rhone has not alleged
facts that, if true, would establish his actual innocence, so the court OVERRULES
this objection.
Next, Mr. Rhone objects that he exhausted a sufficiency of the evidence
argument in his direct appeal and that he exhausted his related ineffective assistance
claim by raising it in his state habeas petition. (Doc. 37 at 3–4). In his direct criminal

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appeal, Mr. Rhone argued that the evidence was insufficient to support a conviction
for manslaughter, but the Alabama Court of Criminal Appeals found that he had not
preserved that argument because his motion for judgment of acquittal argued only
that the evidence was insufficient to support a conviction for murder. (Doc. 14-8 at
3). In his Alabama Rule of Criminal Procedure 32 petition, Mr. Rhone claimed that
trial counsel was ineffective for failing to properly preserve the sufficiency of the
evidence argument. (Doc. 14-16 at 35–38). He then reiterated that claim on appeal
to the Alabama Court of Criminal Appeals (doc. 14-17 at 20–22), but he did not
challenge the ruling in his petition for certiorari to the Alabama Supreme Court (doc.
14-23 at 3–10).
The magistrate judge correctly concluded that Mr. Rhone’s failure to
challenge, in a petition for writ of certiorari to the state supreme court, the denial of
his ineffective assistance claim results in the procedural default of that claim. See
Pruitt v. Jones, 348 F.3d 1355, 1359 (11th Cir. 2003). Mr. Rhone’s exhaustion of a
different (albeit related) claim cannot suffice to exhaust this specific claim. The
court therefore OVERRULES Mr. Rhone’s objection that his exhaustion of the
substantive sufficiency of the evidence claim also exhausted the related ineffective
assistance claim. Likewise, the court OVERRULES Mr. Rhone’s objection that he
exhausted his ineffective assistance claim by raising it before the state trial habeas
court and the Alabama Court of Criminal Appeals, despite his failure to raise it

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before the Alabama Supreme Court.
The court ADOPTS the magistrate judge’s report and ACCEPTS his
recommendation.

Accordingly, the court WILL DENY Mr. Rhone’s § 2254

petition.
Rule 11 of the Rules Governing § 2254 Petitions requires the court to issue or
deny a certificate of appealability when the court enters an order adverse to the
petitioner. Rule 11(a), Rules Governing § 2254 Cases in the United States District
Courts. 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) (quotation marks omitted). This
court finds that Mr. Rhone has not satisfied either standard. Accordingly, the court
WILL DENY a certificate of appealability.
The court will enter a separate final order consistent with this opinion.

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DONE and ORDERED this September 15, 2020.

_________________________________
ANNEMARIE CARNEY AXON
UNITED STATES DISTRICT JUDGE

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