Littleton v. Jones et al

Filing 28

MEMORANDUM OPINION. Signed by Judge R David Proctor on 1/23/2017. (AVC)

FILED
2017 Jan-23 PM 03:10
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHWESTERN DIVISION
ROBERT LITTLETON, III,
Petitioner,
v.
DERRICK CARTER, and the
ATTORNEY GENERAL OF THE STATE
OF ALABAMA,

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Case No.: 3:14-cv-0371-RDP-JEO

Respondents.

MEMORANDUM OPINION
On November 28, 2016, the Magistrate Judge’s Report and Recommendation (Doc. # 21)
was entered and the parties were allowed therein fourteen (14) days in which to file objections to
the recommendations made by the Magistrate Judge. In response to a Motion (Doc. # 22) by
Petitioner, the Magistrate Judge granted Petitioner an extension of time within which to file
objections. On January 9, 2017, Petitioner filed objections to the Magistrate Judge’s Report and
Recommendation (Doc. # 24). Additionally, Petitioner filed a Motion to Expand Record (Doc. #
25) and Motion to Stay All Proceedings (Doc. # 26). Finally, on January 20, 2017, Petitioner
filed a Motion to Amend Objections (Doc. # 27), which sought to present additional objections
to the Magistrate Judge’s Report and Recommendation. The court grants Petitioner’s request
with respect to his Motion to Amend Objections (Doc. # 27), and considered the objections
raised in Petitioner’s Motion.
After careful consideration of the record in this case, the Magistrate Judge’s Report and
Recommendation, and Petitioner’s objections thereto, the court hereby ADOPTS the Report of

the Magistrate Judge. The court further ACCEPTS the recommendations of the Magistrate
Judge that the petition for writ of habeas corpus be denied.
While Petitioner makes a number of objections to the Magistrate Judge’s findings, his
objections are largely the same as arguments that he has previously made, and that were rejected
in the Magistrate Judge’s Report and Recommendation. For example, he raises in his objections
the following arguments: 1) he did not receive proper notice that his first Rule 32 petition was
denied; 2) his conviction for Sexual Abuse should be treated as a misdemeanor conviction as a
matter of law; 3) his conviction is in violation of the Double Jeopardy Clause of the Fifth
Amendment of the United States Constitution and Article 1 § 9 of the Alabama Constitution; 4)
there was insufficient evidence to support his conviction; and 5) that the indictment returned
against him was ineffective. (See Doc. # 24 at pp. 3, 5, 6, 11, 13, 20). The Magistrate Judge’s
Report and Recommendation appropriately addresses, and disposes of, each of these arguments,
in turn.
Further, in his objections, Petitioner argues that he is “actually innocent.” (Doc. # 24 at
p. 7). “[P]risoners asserting innocence as a gateway to defaulted claims must establish that, in
light of new evidence, ‘it is more likely than not that no reasonable juror would have found
petitioner guilty beyond a reasonable doubt.’” House v. Bell, 547 U.S. 518, 536-37 (quoting
Schlup v. Delo, 513 U.S. 298, 327 (1995)). In his objections, however, Petitioner presents no
new evidence to the court at all. Instead, he again parses the testimony that was offered at trial.
He argues that he “never touched the alleged victim’s anus or vagina with his penis,” and the
testimony that “he tried” is not enough to support his conviction. (Doc. # 24 at p. 7). This is not
the sort of “new evidence” required to support a finding of actual innocence. Further, as
appropriately found by the Magistrate Judge, whether Petitioner actually penetrated the victim

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was not a question presented to or decided by the jury with respect to the charges of attempted
sodomy, attempted rape, and sexual abuse against him. (Doc. # 21 at pp. 33-34). Thus,
Petitioner’s contention that the victim’s testimony at trial included statements that he attempted
to stick his penis “in [her] rear end” (Doc. # 24 at p. 53-54), and that “he would spread them and
rub it all up and down each” two to three times a week (Doc. # 24 at p. 54-55) are fatal to his
claim of actual innocence.
Finally, an assertion of actual innocence is not a standalone right to relief, and instead
serves only as a gateway to the consideration of otherwise procedurally barred claims. House v.
Bell, 547 U.S. at 536. While the Magistrate Judge’s Report and Recommendation addressed
certain procedural bars, it additionally made independent findings on the merits of each claim
raised by Petitioner. In adopting the Magistrate Judge’s Report and Recommendation, the court
notes that Petitioner’s claim of actual innocence fails because Petitioner’s claims fail
independent of any finding of procedural default.
Additionally, Petitioner’s Motion to Expand the Record (Doc. # 25), is due to be, and is,
DENIED. In his Motion (Doc. # 25), Petitioner requests that the court expand the record to
include the trial transcripts of his criminal trial as well as copies of all petitions and motions he
has filed in state court since the Government filed its Answer in this case. While the State must
attach to its answer the parts of the state-court record “that the [State] considers relevant,” the
court may additionally order the State to furnish other parts of that record when necessary. Rule
5(c), § 2254 HABEAS RULES; see also Hightower v. Terry, 459 F.3d 1067, 1071 n. 7 (11th Cir.
2006). Further, “If the petition is not dismissed, the judge may direct the parties to expand the
record by submitting additional materials relating to the petition.” Rule 7(a), § 2254 HABEAS
RULES.

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The district court’s authority to expand the record is discretionary, not a mandatory
requirement. After a review of Petitioner’s claims and the record, the court finds no need to
expand the record. See Mandeville v. Smeal, 578 F. App’x 149, 150 (3d Cir. 2014) (“There is…
no universal requirement, either in the Federal Rules or any binding precedent, that district courts
must obtain or read the entire record of state criminal proceedings for every habeas petition);
Simental v. Matrisciano, 363 F.3d 607, 612 (7th Cir. 2004) (“While the review of a state court
transcript is occasionally necessary in habeas cases, it is certainly not required…). Although
Petitioner requests the court to expand the record to include the full transcript of his trial, each
claim Petitioner has advanced is due to be denied on grounds independent from any language or
text in the trial transcript (which Petitioner alleges support his positions). Further, the portions of
testimony from the trial that Petitioner provides for the record are actually, in and of themselves,
enough to undermine his sufficiency of the evidence claims. Additionally, the court need not
enter an order expanding the record to include Petitioner’s most recently filed state court
motions. Indeed, the court may “take judicial notice of the state and federal court proceedings in
which [a petitioner] was convicted or attacked his conviction.” Cunningham v. Dist. Att'y's
Office for Escambia Cnty., 592 F.3d 1237, 1255 (11th Cir. 2010). Accordingly, the court may
appropriately consider Petitioner’s additional filings without any need to grant relief in the form
that Petitioner requests.
Finally, Petitioner’s Motion to Stay All Proceedings (Doc. # 26) is DENIED. Petitioner
contends that he filed a Motion styled “Petition for Writ of Habeas Corpus for Immediate
Release” in the Circuit Court of Montgomery County, which was denied on December 20, 2016.
He contends that he filed a motion to reconsider that ruling as well as a notice of appeal in the

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Court of Criminal Appeals, and requests that the court stay this federal habeas corpus action
while he continues the appeal his state habeas corpus petition.
There are certainly situations where such a stay would be permissible. A federal district
court has the discretion to stay a “mixed” petition (i.e., a petition for habeas corpus relief that
contains some claims that are exhausted and some that are not) to allow the petitioner to present
his unexhausted claims to the state court. Rhines v. Weber, 544 U.S. 269 (2005). However,
“stay and abeyance should be available only in limited circumstances.”1

Id. at 277.

Accordingly, a stay and abeyance is only appropriate when the district court finds that there was
good cause for the petitioner’s failure to exhaust his claims in state court, and a district court
would “abuse its discretion if it were to grant him a stay when his unexhausted claims are plainly
meritless.” Id. Here, there is not.
Petitioner has represented to the court that he believes he has exhausted all of the
remedies available to him in the Alabama State Courts and accordingly, does not contend that he
has brought a mixed petition in the present action. (See Doc. # 24 at pp. 1-2). Nor does he seek
a stay based on a need to exhaust certain claims of his. However, even if that were Petitioner’s
rationale, his motion is nonetheless due to be denied. The court finds no good cause for
Petitioner’s failure to exhaust certain of his claims in state court prior to filing the present
petition. Further, as thoroughly detailed in the Magistrate Judge’s Report and Recommendation,
each of Petitioner’s claims are not only procedurally barred but also due to be denied on their
merits. Accordingly his Motion to Stay is DENIED.
A separate order in accordance with the Memorandum Opinion will be entered.

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The court notes that “[s]taying a federal habeas petition frustrates AEDPA's objective of encouraging
finality by allowing a petitioner to delay the resolution of the federal proceedings. It also undermines AEDPA's goal
of streamlining federal habeas proceedings by decreasing a petitioner's incentive to exhaust all his claims in state
court prior to filing his federal petition.” Rhines, 544 U.S. at 277.

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DONE and ORDERED this January 23, 2017.

_________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

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