Charley v. Mitchem et al

Filing 31

MEMORANDUM OPINION ADOPTING and ACCEPTING the Magistrate Judge's 21 Report and Recommendation. Signed by Judge Virginia Emerson Hopkins on 5/14/2015. (JLC)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
DAN CHARLEY,
Petitioner,
v.
DEWAYNE ESTES and the
ATTORNEY GENERAL FOR
THE STATE OF ALABAMA,
Respondents.

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) CIVIL ACTION NO.
) 4:12-CV-1069-VEH-JEO
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MEMORANDUM OPINION
This is an action on a pro se petition for writ of habeas corpus brought pursuant
to 28 U.S.C. § 2254. (Doc. 1).1 It was filed by Dan Charley, an Alabama state prisoner
serving a life sentence at the Limestone Correctional Facility in Harvest, Alabama,
following his conviction for rape in the first degree. On February 19, 2015, the
magistrate judge entered a report pursuant to 28 U.S.C. § 636(b)(1) and FED. R. CIV.
P. 72(b)(1) recommending that Charley’s habeas petition be denied in its entirety.
(Doc. 21 (“R&R”)). After being granted several extensions, on April 15, 2015,
Charley timely filed a 55-page objection to the magistrate judge’s R&R (with an

1/

References herein to “Doc(s). __” are to the document numbers assigned by the Clerk of the
Court to the pleadings, motions, and other materials in the court file, as reflected on the
docket sheet in the court’s Case Management/Electronic Case Files (CM/ECF) system.
Unless otherwise noted, pinpoint citations are to the page of the electronically filed
document, which may not correspond to pagination on the original “hard copy.”

attached 37 pages of exhibits) (Doc. 30). In addition, on March 5, 2015, the State
filed what is effectively a pro forma objection, whose goal is to preserve its argument
that many of the claims of ineffective assistance of counsel that the Magistrate
Judge’s R&R rejects on the merits are also procedurally defaulted. (Doc. 24).
In Charley’s objection, he rehashes most of the arguments from his petition and
other filings made in response to the State’s Answer. It will suffice to say that the
undersigned agrees with the magistrate judge’s thorough discussion and disposition
of those arguments in his 72-page R&R. However, Charley’s objection also include
arguments based on additional evidence that he now offers for the first time. That new
evidence relates to Charley’s habeas claims regarding the testimony of Wendy
Mathis, the Sexual Assault Nurse Examiner (“SANE”) who, on June 7, 2006,
performed the rape kit examination of the victim, J.J., at the Crisis Center Clinic she
ran in Birmingham. As discussed in the R&R, Mathis testified at Charley’s trial in
April 2007 that her exam revealed a one centimeter injury just below J.J.’s vaginal
opening that was consistent with recent intercourse and that she microscopically
observed sperm cells in a swab sample taken from J.J.’s vaginal canal. Subsequently,
Jaclyn Bowling, a DNA examiner with the Alabama Department of Forensic
Sciences, testified that the genetic traits in the rape kit vaginal swab taken from J.J.
matched the traits in a swab taken from Charley.
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The evidence that Charley now offers shows that on May 11, 2008, about a
year after Charley’s trial had concluded, the Alabama State Board of Nursing (the
“Board”) issued a “Statement of Charges and Notice of Hearing” advising that the
Board was pursuing disciplinary action against Mathis, pursuant to ALA. CODE § 3421-25. (Doc. 30 at 57-69). The Board alleged therein that Mathis’s certification as a
Certified Registered Nurse Practitioner (“CRNP”) had lapsed in 2002 and that, on
January 4, 2008, her employment with the clinic in Birmingham had been terminated
due to her misrepresentation of her CRNP certification and for failing to comply with
the clinic’s standards, policies, and procedures. (Doc. 30 at 59-61, §§ IV, V, VI). The
Board further charged in the Statement as follows:
On or about January 4, 2008, the Crisis Center facility, which was
under the control of [Mathis], was found to be in a state of disarray, and
photo documentation of such was taken, upon [Mathis’s] termination.
In particular, the following was observed:
•

Multiple medical charts left in an open area

•

Multiple State of Alabama Evidence Collection “Kits” (for
collection of sexual assault evidence) left unsealed and
unsecured throughout the office

•

Copies of multiple charts and fronts of kits in open area

•

Photograph of victim on top of filing cabinet in open area

•

Open paper bag containing a chart and an unsealed kit

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•

Refrigerator containing numerous urine and blood samples
in Zip1oc bags, refrigerator unlocked and not marked as
containing evidence

•

Unmarked, uncovered plastic cup containing urine

•

Overflowing sharps container containing a butterfly device
not completely disposed

•

Medications stored in unlocked cabinet

•

Unsealed kit containing swabs

•

Non-encased slides

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Open swabs in swab dryer

•

Open kits in exam room visible to victims

•

Porous wood block used for swab dryer

•

Unlabelled swabs and slides

•

Stacks of papers with identifying victim information

•

Failure to engage locking mechanisms on storage cabinets
and areas intermingling of food, garbage, office supplies,
and evidence collection media

(Doc. 30 at 61-62, § VII; see also id. at 85-87). Based upon these and other
allegations, the Board charged Mathis in fourteen counts with violating a host of
administrative regulations and gave notice of its intent to seek disciplinary action,
setting a hearing for June 22, 2010. (See id. at 57-69). It is unclear why the hearing

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was set for a date more than two years after the issuance of the disciplinary charges.
In any event, it appears that the hearing did not take place as scheduled, for on the
day after it was to be held, the Board issued another, nearly identical charging
document against Mathis, resetting the hearing for July 27, 2010. (Id. at 70-82). On
July 26, 2010, however, Mathis signed a document by which she waived her right to
a hearing and voluntarily surrendered her nursing license. (Doc. 30 at 83). The Board
formally revoked Mathis’s license the following day. (Doc. 30 at 84 ).
Although not presented to the magistrate judge, the court will, in its discretion,
consider Charley’s additional evidence it as part of its de novo review. See 28 U.S.C.
§ 636(b)(1); Drew v. Department of Corr., 297 F.3d 1278, 1289 n.4 (11th Cir. 2002);
Wofford v. Wainwright, 748 F.2d 1505, 1507 (11th Cir. 1984). Charley argues that
such evidence supports his claims (1) that Mathis was not qualified to testify as an
expert, (2) that the rape kit evidence was inadmissible because Mathis collected it in
unsanitary conditions at the clinic, and (3) that his counsel was ineffective for failing
to raise such objections at trial. However, because Charley’s counsel did not so
object, the first two claims are procedurally defaulted; only an ineffective-assistance
theory is even potentially viable. In order to prevail on a claim of ineffective
assistance of counsel, a petitioner bears the burden to plead and prove circumstances
showing (1) that “counsel’s performance was deficient,” and (2) “that the deficient
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performance prejudiced the defense” because the “errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable.” Strickland v. Washington,
466 U.S. 668, 687 (1984).
Because it was not until well after Charley’s trial that the clinic terminated
Mathis’s employment, the Board took any steps towards disciplining Mathis, or
Mathis surrendered her nursing license, Charley’s trial counsel could not possibly
have been ineffective for failing to discover or use such evidence. See Dell v. United
States, 710 F.3d 1267, 1274 (11th Cir. 2013); Jones v. Campbell, 436 F.3d 1285,
1296 (11th Cir. 2006). Charley also urges that the Board’s evidence corroborates his
previously-offered affidavits of Rebecca Stribling and Faye Hartley, employees of the
group home Charley operated who were present for J.J.’s rape kit examination and
who allegedly told Charley’s counsel prior to trial that Mathis’s clinic was “filthy”
and otherwise unprofessional looking. However, the Board’s evidence related to
contemplated discipline against Mathis, including photographs of the clinic, did not
exist at the time of Charley’s trial. And as explained in the R&R, under Alabama law,
any testimony that defense counsel might have elicited about the conditions of the
clinic would have gone only to the weight of Mathis’s testimony, not its admissibility,
and would not have had any reasonable probability to alter the jury’s verdict given
Charley’s videotaped confession, his wife’s admission that he confessed to her as
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well, and the other overwhelming evidence of his guilt. (See R&R at 27-30).
Insofar as Charley is now claiming that his trial counsel was ineffective for
failing to investigate Mathis’s credentials and qualifications with the Board, that
specific claim was not fairly presented and exhausted in the Alabama courts and is
now procedurally defaulted. Even considered on the merits, the claim is due to be
denied. When assessing an attorney’s decision to limit an investigation, courts must
make “every effort ... to eliminate the distorting effects of hindsight, to reconstruct
the circumstances of counsel’s challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time.” Strickland, 466 U.S. at 689. Charley offers
nothing to support that his counsel had any reason to suspect at the time of the trial
that Mathis’s CRNP certification, license, or expert qualifications might have been
subject to doubt, given that she had performed thousands of sexual assault
examinations, taught classes on the subject, and had testified in the Alabama courts
as an expert numerous times. See Leon v. Ryan, 2014 WL 289980, at *15 (D. Ariz.
Jan. 27, 2014); cf. Skaggs v. Parker, 235 F.3d 261, 267-68 (6th Cir. 2001) (holding
that defense counsel were not ineffective in failing to investigate credentials of
purported licensed clinical and forensic psychologist before presenting him as expert
witness on insanity defense, considering counsel’s familiarity with such person as
expert witness, even though credentials were falsified). Accordingly, trial counsel’s
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failure to inquire with the Board about Mathis’s credentials was not unreasonable as
required to establish deficient performance under Strickland. Charley’s allegations
also do not establish actual prejudice given (1) that Mathis still might have qualified
as an expert, notwithstanding any questions about the validity of her CRNP
certificate, as she was still a licensed nurse and had substantial experience in the field,
(2) that Mathis still could have testified as a fact witness as it related to her own
actions and events within her personal knowledge, including her observations upon
her physical examination of J.J. and her collection of the rape kit evidence, and (3)
the other overwhelming evidence of Charley’s guilt as referenced above.
Having carefully reviewed and considered de novo all the materials in the court
file, including the magistrate judge’s Report and Recommendation and the parties’
respective 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. The objections of the Petitioner and the State are both OVERRULED.
As a result, the petition for writ of habeas corpus is due to be denied and this action
is due to be 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, 484-85 (2000); Rule 11(a), RULES GOVERNING § 2254 PROCEEDINGS.
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A separate Final Judgment Order will be entered.
DONE and ORDERED this the 14th day of May, 2015.

VIRGINIA EMERSON HOPKINS
United States District Judge

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