Smith v. State of Alabama et al

Filing 40

MEMORANDUM OPINION. Signed by Judge R David Proctor on 2/19/2020. (KAM)

FILED
2020 Feb-19 PM 03:29
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
DANNY L. SMITH,
Petitioner,
v.
STATE OF ALABAMA, et al.,
Respondents.

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4:17-cv-01223-RDP-JEO

MEMORANDUM OPINION
This is an action for a writ of habeas corpus filed by Petitioner Danny L.
Smith, pro se. Smith filed his petition on July 19, 2017, and amended it on August
2, 2018. (Docs. 1, 17).1 Smith challenges his state-court imposed life sentences for
seven separate felony and misdemeanor charges. (Doc. 17). On May 7, 2019, the
Magistrate Judge entered a report and recommendation pursuant to 28 U.S.C. §
636(b), which recommended that his habeas petition be denied. (Doc. 34). Smith
has filed timely objections to that report and recommendation.2

(Doc. 37).

Citations herein to “Doc(s). ___” are to the document number, and page where specified, of the
pleadings and other materials in the court file, as compiled by the clerk and reflected on the docket
sheet. Unless otherwise noted, pinpoint citations are to the page of the electronically filed
document, which may not correspond to the pagination on the original “hard copy.”
1

Smith’s original objections contained 109 pages, with an additional 45 pages of exhibits attached.
(Doc. 37). The majority of the exhibits were part of the state court record submitted to this court.
The remaining exhibits concern Smith’s denial of parole on June 14, 2017. (Doc. 37 at 149-152).
2

Thereafter, he filed an amended objection, followed by an addendum to his
objections. (Docs. 38-39). Below, the court considers each of his objections.
I.

PROCEDURAL HISTORY
On November 6, 2007, Smith pleaded guilty to third degree burglary and

third-degree theft of property. (Doc. 7-6 at 25; Doc. 7-7 at 2). On August 7, 2008,
Smith pleaded guilty to first degree burglary, second degree assault, first degree
assault, second degree criminal mischief, and violation of the Community
Notification Act. (Doc. 7-6 at 30; Doc. 7-7 at 3; Doc. 7-31 at 40).
Smith was sentenced on August 7, 2008, under the Habitual Offender Act to
life imprisonment in five of these cases, with each of the life terms to run
concurrently to all convictions. (Doc. 7-6 at 26-30; Doc. 7-7 at 2; Doc. 7-10 at 3133). In the two misdemeanor cases (CC-07-785 and CC-07-787), Smith received
12-month sentences, which also ran concurrently with the five life sentences he
received on the felony convictions. (Doc. 7-10 at 33). Smith did not file a direct
appeal.
Smith filed his first motion for collateral review on July 20, 2009, in CC-07786 and CC-07-787.3 (Doc. 7-3 at 16). At some point in September 2009, Smith

3

Those cases were the Burglary 3rd and Theft of Property 3rd, which Smith had pleaded guilty
to on November 6, 2007.
2

amended his petition to include additional claims.4 (Doc. 7-7 at 16-17). On May 14,
2012, the trial judge dismissed Smith’s Rule 32 petition without prejudice, based on
Alabama Rule of Criminal Procedure 32.1, which prohibits challenging multiple
judgments in one petition. (Id., at 34). Smith appealed that ruling and on December
7, 2012, the Alabama Court of Criminal Appeals affirmed the trial court’s dismissal.
(Id., 7-7 at 36; Doc. 7-13). The Alabama Supreme Court denied certiorari on March
15, 2013. See Ex parte Danny L. Smith, No. 1120438, 162 So. 3d 952 (Ala. 2013)
(table).
On April 5, 2013, Smith filed two new petitions for collateral review under
Rule 32. (Doc. 7-17 at 29, doc. 7-18 at 5, 9). The state circuit court again dismissed
these petitions, this time with prejudice, on September 24, 2013, citing Rule 32.1.
(Doc. 7-17 at 2). Smith again appealed. (Doc. 7-18 at 11, 13). On January 12, 2015,
the Alabama Court of Criminal Appeals affirmed the dismissal of the petitions based
upon Smith’s violation of Rule 32.1; however, the appeals court reversed and
remanded the circuit court’s judgment related to the dismissal of the petition without
prejudice. (Doc. 7-21). On February 24, 2015, the Circuit Court of Etowah County
complied with the appeals court order. (Doc. 7-23).

Smith did not appeal that

dismissal.

The amendment is undated, and the Etowah County Clerk’s Office stamp is illegible. (See doc.
7-7 at 16-17).
4

3

On March 12, 2015, Smith filed a third Rule 32 petition. (Doc. 7-24 at 4).
The district attorney again moved to dismiss that petition, asserting Smith again
challenged multiple judgments in a single petition. (Doc. 7-25 at 31). The trial court
dismissed the third Rule 32 petition on May 18, 2015, noting Smith had reserved no
issues for appeal and waived his right to petition for post-conviction relief. (Doc. 725 at 32-33). The trial court further advised Smith that the only grounds on which
he could file post-conviction pleadings were those found in Rule 32.2(a)(3) and (5).5
(Id.). Smith appealed that dismissal6 and on October 16, 2015, the state criminal
appeals court again affirmed the dismissal of his petitions for co-mingling multiple
judgments in a single proceeding.7 (Doc. 7-25 at 56; Doc. 27-28). Smith did not

5

Rule 32.2 states in relevant part:
(a) Preclusion of Grounds. A petitioner will not be given relief under this rule
based on any ground:
…
(3) Which could have been but was not raised at trial, unless the ground for relief
arises under Rule 32.1(b); or
…
(5) Which could have been but was not raised on appeal, unless the ground for
relief arises under Rule 32.1(b).

In turn, Rule 32.1(b) allows a post-conviction petition for relief if “[t]he court was without
jurisdiction to render judgment or impose sentence.” Rule 32.1(b), Ala. R. Crim. P.
6

Smith actually brought two separate, parallel petitions in his third round of filings seeking
collateral review. (See e.g., Doc. 7-25 at 20, 23, 57).
The court delineated these judgments as “his November 2007 guilty plea proceedings, his August
2008 guilty plea proceedings, and a habeas corpus proceeding.” (Doc. 7-28 at 3).
7

4

appeal to the Alabama Supreme Court and the Alabama Court of Criminal Appeals
issued a Certificate of Judgment on November 4, 2015. (Doc. 7-29).
Smith brought a fourth round of Rule 32 proceedings in November 2015.
(Doc. 7-30 at 10). On November 7, 2016, the state filed a response addressing each
of the claims in cases CC-07-786 and CC-07-787 on the merits. (Doc. 7-33 at 26).
In its December 5, 2016 order denying relief, the Rule 32 court addressed these
claims and permanently enjoined Smith from filing any pleading with grounds
previously raised or which could have been raised, unless he first showed good cause
for his failure to raise such claims at an earlier time. (Doc. 7-33 at 58-65). On appeal
(Doc. 7-34 at 5), the Alabama Court of Criminal Appeals held in pertinent part:
First, Smith alleged in his petition that he was entitled to equitable
tolling because the filing of his first Rule 32 petition was timely and
was dismissed without prejudice. Smith maintains that, because all
three of his previous petitions were dismissed without prejudice
because his petitions challenged multiple judgments, he is entitled to
equitable tolling.
The Alabama Supreme Court has held that
“when a Rule 32 petition is time-barred on its face, the
petition must establish entitlement to the remedy afforded
by the doctrine of equitable tolling. A petition that does
not assert equitable tolling, or that asserts it but fails to
state any principle of law or any fact that would entitle the
petitioner to the equitable tolling of the applicable
limitations provision, may be summarily dismissed
without a hearing. Rule 32.7(d), Ala. R. Crim. P.”
Ex parte Ward, 46 So. 3d 888, 897-98 (Ala. 2007). “[T]he threshold
necessary to trigger equitable tolling is very high, lest the exceptions
5

swallow the rule.” United States v. Marcello, 212 F.3d 1005, 1010
(7th Cir. 2000). “Equitable tolling is appropriate when a movant
untimely files because of extraordinary circumstances that are both
beyond his control and unavoidable even with diligence.” Sandvik v.
U.S., 177 F.3d 1269, 1271 (11th Cir. 1999) … Irwin v. Department of
Veteran Affairs, 498 U.S. 89, 96 (1990) (“Federal courts have typically
extended equitable relief only sparingly. We have allowed equitable
tolling in situations where the claimant has actively pursued his
judicial remedies by filing a defective pleading during the statutory
period, or where the complainant has been induced or tricked by his
adversary’s misconduct into allowing the filing deadline to pass.”).
In the present case, although Smith alleges that he was entitled to
equitable tolling in his petition and again on appeal, his assertion is
unavailing. Each of his previous petitions were dismissed on the
ground that his petition challenged multiple judgments. Smith
maintains that, because his first petition was filed within the statutory
period and he was actively seeking judicial remedies from that time,
he should be entitled to equitable tolling. Based on his contention,
Smith could have had a meritorious argument for equitable tolling
when he filed his second petition after the court had explained that he
could not file a petition challenging multiple judgments. However,
Smith continued to file petitions with the same defect even after being
told numerous times by this Court and the circuit court the reason that
the petitions were defective. Thus, the circumstances in the instant
case that Smith claims entitle him to equitable tolling were fully within
Smith’s control and were avoidable with diligence from Smith.
Therefore, Smith has not pleaded sufficient facts in his Rule 32 petition
to satisfy his high “burden of demonstrating in his petition that there
are such extraordinary circumstances justifying the application of the
doctrine of equitable tolling.” Ex parte Ward, supra.
(Doc. 7-37 at 3-4). After determining that Smith was not entitled to equitable tolling,
and in affirming the trial court’s dismissal of the petition, the Alabama Court of
Criminal Appeals addressed the specific procedural bars which applied to Smith’s
petition. (Id., at 5-11). Smith filed a petition for writ of certiorari with the Alabama
6

Supreme Court, but it was denied without opinion, and a certificate of judgment was
entered July 7, 2017. (Doc. 7-40; doc. 7-42).
On July 19, 2017, Smith filed the instant habeas petition in this court. In that
petition, he only addressed his claims arising from cases CC-07-786 and CC-07-787.
(Doc. 1). At the time, his claims based on his August 7, 2008, pleas were still
pending in the Alabama appellate courts. When the Alabama Supreme Court denied
certiorari in those cases, Smith brought a second habeas action in this court. See
1:18-cv-00688-MHH-JEO. Because all of the petitioner’s claims arose out of one
sentencing, this court consolidated the two habeas actions and provided the
petitioner with the opportunity to file an amended habeas petition. He did so and that
amended petition became the operative one for purposes of this court’s review.
(Doc. 17).
The Magistrate Judge received argument and, on May 7, 2019, entered his
report and recommendation. (Doc. 34). Smith filed objections. (Docs. 37-39). The
issues in this case are now ripe for decision, and the court has considered de novo all
the parties’ objections and arguments.
II.

PROCEDURAL OBJECTIONS
Smith advanced several procedural objections to the report. The court

considers them below.

7

A. Timeliness
Smith’s first three objections, as well as his first amended objection, concern
the timeliness of his petition in this court. (Doc. 37 at 3-29; doc. 38 at 3). Smith
objects to the finding that he filed his first petition for collateral review in the state
courts on July 20, 2009. (Doc. 37 at 3-15). Specifically, Smith asserts that his
multiple motions to withdraw his guilty pleas, both before and after sentencing,
should count as petitions for collateral review. (Id. at 3). Smith asserts these
“petitions” make the instant petition timely based on equitable tolling. (Id. at 3-7).
This argument has no basis in law.
Motions filed in state court prior to the time a judgment against a defendant
was entered cannot toll that defendant’s time limitation to file a petition for habeas
corpus pursuant to 28 U.S.C. § 2254. See e.g., McCloud v. Hooks, 560 F.3d 1223,
1228 (11th Cir. 2009) (citing Ferreira v. Secretary for the Department of
Corrections, 494 F.3d 1286, 1293 (11th Cir. 2007) (“AEDPA’s statute of limitations
begins to run from the date both the conviction and the sentence the petitioner is
serving at the time he files his application become final because judgment is
based on both the conviction and the sentence.”) (emphasis added).8 This objection
is due to be overruled.

8

In any event, the court notes that the Magistrate Judge did not make a finding as to the timeliness
of the petition in this court. (See Doc. 34 at 10, n. 13)
8

B. Procedural Default9
To the extent Smith is challenging the Magistrate Judge’s finding that some
of his claims were not properly raised in state court, and thus the claims are
unexhausted and therefore defaulted here (Doc. 37 at 7-8), a claim of equitable
tolling does not assist him. A state court’s finding of procedural default under
Alabama Rule of Criminal Procedure 32.2(c) cannot be “cured” by this court
applying equitable tolling to the filing of a petition. Under Martinez v. Ryan, 566
U.S. 1 (2012), this court may not review “the merits of a constitutional claim that a
state court declined to hear because the prisoner failed to abide by a state procedural
rule.” Id. at 9. Smith’s contention that the Magistrate Judge made “no finding on the
timeliness of the petition filed in this court” creates a “genuine issue of material fact”
(Doc. 37 at 9-10) has simply no basis in law. This objection is due to be overruled.

Throughout his objections, Smith refers to the Magistrate Judge’s findings regarding claims that
are procedurally defaulted. (Doc. 34 at 9-18; Doc. 37 at 7-9, 10, 16-18, 28-29, 104). He objects
to the Magistrate Judge’s synopses of Respondents’ arguments and the Alabama Court of Criminal
Appeals’ rulings. (See e.g., Doc. 37 at 16 (citing Doc. 34 at 10-11)). Smith further objects to the
legal standards recited by the Magistrate Judge. (Doc. 37 at 18 (citing doc. 34 at 11)). As these
are neither “findings of fact” nor “conclusions of law,” Smith’s objections to a summary of what
the Respondents’ argue, to what the Alabama Court of Criminal Appeals held, and to statements
of federal law, are due to be overruled. Smith also “averts [sic] this Court’s attention here to the
Respondents own admissions of Smith’s claims in the ‘amended document’ that does establish
Smith’s actual claims were erroneously given import deference….” (Doc. 37 at 40) (emphasis in
original). The court construes this argument as a claim that the Magistrate Judge misstated Smith’s
actual claims. However, a comparison of the claims set forth by Smith in his objections (Doc. 37
at 41-43) with those recited by the Magistrate Judge (Doc. 34 at 8-9), reflects the Magistrate Judge
accurately summarized each of Smith’s claims. In any event, if there are semantical differences,
the court has reviewed Smith’s claim de novo and will address each of them as he has presented
them. The objection is due to be overruled.
9

9

Smith next argues that this court should apply equitable tolling to find his
state court petitions timely because the state court’s application of Alabama Rule of
Criminal Procedure 32.1(f) is unconstitutional. (Doc. 37 at 15-33; Doc. 38 at 5, 7).
As best the court can glean, Smith contends that the state court rule that requires a
separate Rule 32 petition for each judgment violates his constitutional rights. (Doc.
37 at 15-17). He relies on Carey v. Saffold, 536 U.S. 214 (2002) in making this
argument. But, that case does not support his position. Carey stands for the wholly
unremarkable requirement that, even under the peculiar nomenclature used in
California, “intervals between a lower court decision and a filing of a new petition
in a higher court are within the scope of the statutory word ‘pending,’” so long as
the time for filing has not expired. Carey, 536 U.S. 214, 223 (2002); see also Evans
v. Chavis, 546 U.S. 189, 191 (2006) (reaching the same conclusion). This objection
is due to be overruled.
In Smith’s next objection, he claims the state court improperly applied Rule
32.1(f), and this court must “de novo” determine whether Smith diligently pursued
his state court remedies. (Doc. 37 at 19-28, 33-36). Smith bases this assertion on
his belief that he did not have to file separate Rule 32 petitions for each judgment
against him, as required by Rule 32.1(f), although multiple state courts told him he
must do precisely that. (See e.g., Doc. 37 at 36-38). However, ignoring repeated
instructions from multiple courts does not demonstrate that Smith “pursu[ed] his
10

rights diligently.” Holland v. Florida, 560 U.S. 631, 644 (2010). And, the only
impediment to timely filing in state court was Smith himself. Under these
circumstances, no reasonable jurist would agree that “extraordinary circumstances”
prevented his timely filing. Id. This objection is due to be overruled.
Smith next asserts this court’s instruction to him to file an amended petition
containing all of his claims supports his actions in state court. However, Smith may
not pick and choose between state and federal law to advance his arguments. Rather,
he must comply with both state and federal procedural requirements, respectively,
and those may differ. Smith’s objections to the courts’ requiring adherence to Rule
31.2(f) are due to be overruled.
To the extent Smith complains the Magistrate Judge improperly found some
of Smith’s claims unexhausted (Doc. 37 at 43), the court notes that the Magistrate
Judge also considered all of Smith’s non-procedural claims on their merits. (See
e.g., Doc. 34 at 18). Because Smith is not entitled to habeas relief on the merits of
his claims, regardless of whether they were found to be exhausted, his objections to
the findings of the Magistrate Judge concerning exhaustion are due to be overruled.
Finally, throughout his arguments related to equitable tolling, Smith asserts
that he is entitled to an evidentiary hearing. (Doc. 37 at 9, 10, 12-13, 24, 33-35, 38).
In a habeas corpus proceeding, “[t]he burden is on the petitioner . . . to establish the
need for an evidentiary hearing.” Birt v. Montgomery, 725 F.2d 587, 591 (11th
11

Cir.1984) (en banc). “In deciding whether to grant an evidentiary hearing, a federal
court must consider whether such a hearing could enable an applicant to prove the
petition’s factual allegations, which, if true, would entitle the applicant to federal
habeas relief.” Schriro v. Landrigan, 550 U.S. 465, 474 (2007). That means that if a
habeas petition does not allege specific facts that, if they were true, would warrant
relief, the petitioner is not entitled to an evidentiary hearing. Allen v. Sec’y, Fla.
Dep’t of Corr., 611 F.3d 740, 763 (11th Cir. 2010) (“Having alleged no specific facts
that, if true, would entitle him to federal habeas relief, Allen is not entitled to an
evidentiary hearing.”). Conclusory allegations are simply insufficient to warrant a
hearing. San Martin v. McNeil, 633 F.3d 1257, 1271 (11th Cir. 2011). But, that is
exactly what we have here. Because Smith’s allegations, even if true, do not warrant
equitable tolling, no evidentiary hearing is required.
III. SMITH’S MERITS OBJECTIONS
Smith directs the vast majority of his objections on the merits to the
recommended findings of the Magistrate Judge. To the extent possible, the court
has grouped Smith’s objections by topic. They do not necessarily follow the
groupings Smith used in his objections.
A. Guilty Pleas and Ineffective Assistance of Counsel
Smith challenges the Magistrate Judge’s merits analysis in connection with
his claim that his guilty plea was involuntary. (Doc. 37 at 45-85, 96-103). The first
12

set of these objections, advanced under the guise of ineffective assistance of counsel
claims, asserts trial counsel did not do exactly as Smith instructed in certain areas,
such as challenging evidence or calling his “alibi” witness.10

(Id. at 45-48).

However, Smith pleaded guilty to each of the charges. The Magistrate Judge
addressed each of the complained-about shortcomings of Smith’s counsel at the
November 2007 plea hearing, as well as those at the August 2008 plea hearing and
sentencing. As the Magistrate Judge correctly concluded, there is nothing in the
record suggesting that counsel was ineffective and there is no dispute that Smith’s
plea was voluntary. (Doc. 34 at 21-40).
Moreover, Smith’s claims based on the perceived shortcomings of counsel
before the entry of his guilty plea are barred by Tollett v. Henderson, 411 U.S. 258
(1973) and its progeny. In Tollett, the Court concluded that:
a guilty plea represents a break in the chain of events which has
preceded it in the criminal process. When a criminal defendant has
solemnly admitted in open court that he is in fact guilty of the offense
with which he is charged, he may not thereafter raise independent
10

The court notes that Smith submitted a hearsay-filled affidavit by Leroy H. Reynolds concerning
the availability, or lack thereof, of witnesses for purposes of trial. (Doc. 37 at 138). Statements
such as “I later learned that Mr. Clark appeared at the courthouse” (id. at 139) are rank hearsay.
Statements such as “Mr. Clark told my daughter ‘she’s lying’” (id. at 140) are double or triple
hearsay. Statements in the affidavit of Patricia R. Jarvis (id. at 144) concerning her father’s
questions to Heather Clark fare no better. She states “I then ask[ed] Jason Clark if Danny Smith
was guilty of the criminal charges that Brandi Smith (Danny Smith’s wife at the time), Mary
Wilson (Danny Smith’s mother-in-law at the time) and Shane Deerman (Brandi Smith’s live in
boyfriend at the time she was still married to Danny Smith), had filed against him. Jason Clark,
again, shook his head indicating no.” (Id. at 144-45). Even if these affidavits were admissible
(and the court need not rule on that question), nothing in them demonstrates that Smith’s guilty
pleas were involuntary or improper.
13

claims relating to the deprivation of constitutional rights that occurred
prior to the entry of the guilty plea.
Id. at 267; see also Lefkowitz v. Newsome, 420 U.S. 283, 289 (1975) (“a guilty plea
represents a break in the chain of events which has preceded it in the criminal
process.”) (quoting Tollett, 411 U.S., at 267)). When he entered his pleas of guilty,
Smith waived any right to subpoena witnesses and gather evidence, and also
abandoned his right to re-litigate what he believes the facts would have been had he
gone to trial.11 Smith’s objection to the factual findings concerning his guilty pleas,
and his claims of ineffective assistance of counsel based thereon,12 are due to be
11

Smith alleges his evidence would have shown a plot to murder him. (Doc. 37 at 65). He claims
this was all part of a plan to entice him to a place where Smith’s wife’s live-in boyfriend (Deerman)
could shoot him. (Id.). Of course, Smith’s asserted plot would still be consistent with a finding
that Smith indeed broke into the home in question, took Deerman’s shotgun, and knocked Deerman
unconscious with it. (Id.). Smith’s murder theory thus depends on Deerman firing the shotgun at
Smith (as Smith was attempting to flee the scene). (Id.). The question of whether separate charges
could have been (or even should have been) brought against Deerman has no bearing on whether
Smith committed assault and burglary. And again, to be clear he admitted he committed those
crimes in his guilty pleas. (See also, id., at 83-84). Certainly, nothing in Smith’s factual claims
establishes he is innocent of breaking into Mary Wilson’s home and threatening its occupants.
Woven throughout much of his objections are Smith’s statements concerning the validity of his
guilty plea and effectiveness of counsel. For instance, he argues that “[h]ad counsel not lied to
Smith regarding his ‘alibi’ witness Smith would have had ‘evidence’ before the jury that ‘Smith
was not in the area on the date of the alleged burglary and theft, nor was Smith in jail on the date
the alleged victim would testify to, by lying to Smith about his ‘alibi witness’s’ whereabouts was
by counsel’s design to ‘induce’ Smith’s mind to think he had no chance at trial with a jury, this
made the plea confession involuntary.” (Doc. 37 at 47). Smith’s assertions are not sufficient to
warrant habeas relief. See e.g., Preetorius v. United States, 2017 WL 4563085, at *13 (S.D. Ga.
July 19, 2017) (quoting Ross v. Estelle, 694 F.2d 1008, 1011-12 (5th Cir. 1983) (“Absent evidence
in the record, a court cannot consider a habeas petitioner’s bald assertions on a critical issue in his
pro se petition ... unsupported and unsupportable by anything else contained in the record, to be of
probative evidentiary value.”). Additionally, because there are serious questions about whether
some (if not all) of the evidence Smith asserts should have been introduced at trial would have
been inadmissible in the first place, there are also serious questions about whether any alleged
failure to introduce such evidence would have violated Smith’s Sixth Amendment right to effective
12

14

overruled.13
Smith next asserts that, but for counsel’s ineffective assistance, he would not
have pleaded guilty. (Doc. 37 at 50-52). As detailed by the Magistrate Judge in his
recitation about the plea colloquies, Smith’s claims about his supposedly involuntary
pleas are directly refuted by the undisputed record. Smith’s suggestion that his case
falls within the rationale of United States v. Cronic, 466 U.S. 648 (1984), is way off
target. As the Court has observed about its decision in Cronic:
Cronic held that a Sixth Amendment violation may be found “without
inquiring into counsel’s actual performance or requiring the defendant
to show the effect it had on the trial,” Bell v. Cone, 535 U.S. 685, 695
(2002), when “circumstances [exist] that are so likely to prejudice the
accused that the cost of litigating their effect in a particular case is
unjustified,” Cronic, supra, at 658. Cronic, not Strickland, applies
“when ... the likelihood that any lawyer, even a fully competent one,
could provide effective assistance is so small that a presumption of
prejudice is appropriate without inquiry into the actual conduct of the
trial,” 466 U.S., at 659–660, and one circumstance warranting the
presumption is the “complete denial of counsel,” that is, when “counsel
[is] either totally absent, or prevented from assisting the accused during
a critical stage of the proceeding,” id., at 659, and n. 25.

assistance of counsel, even if the case had gone to trial. See e.g., Owen v. Sec’y of Dept. of Corr.,
568 F.3d 894, 915 (11th Cir. 2009) (where underlying claim lacks merit, counsel is not deficient
for failing to raise it); Bolender v. Singletary, 16 F.3d 1547, 1573 (11th Cir. 1994) (“[I]t is
axiomatic that the failure to raise non-meritorious issues does not constitute ineffective
assistance.”).
Smith’s contends that his attorney’s decision to file a motion to continue somehow denied him
effective counsel. (Doc. 37 at 74-75). That contention is hard to understand. Smith’s claim that his
attorney had insufficient time prior to trial to serve subpoenas fails for two reasons (at least). First,
a continuance would have given counsel more time, not less. Second, his plea of guilty to the
offenses negated any need for witnesses at trial. See Tollet, 411 U.S. at 267.
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15

Wright v. Van Patten, 552 U.S. 120, 124–25 (2008) (alterations in original). Simply
put, Cronic is not applicable to Smith’s claims.
Smith also objects to the application of the standard announced in North
Carolina v. Alford, 400 U.S. 25, 31 (1970) to his claim that his guilty plea was not
voluntary. (Doc. 37 at 53). Alford concluded that the proper standard for judging
the voluntariness of a plea “was and remains whether the plea represents a voluntary
and intelligent choice among the alternative courses of action open to the defendant.”
400 U.S. at 31 (citing Boykin v. Alabama, 395 U.S. 238, 242 (1969)). Smith provides
no support for his argument that, under Alford, his guilty pleas were involuntary or
not knowingly offered. Smith’s reliance on McMann v. Richardson, 397 U.S. 759
(1970), does not assist him. In McMann, the court held that “a defendant[s] [mere
allegation] that he pleaded guilty because of a prior coerced confession [does] not,
without more, entitle[] [him] to a hearing on his petition for habeas corpus.”14 Id. at
768.

See also Blackledge v. Allison, 431 U.S. 63, 73-74 (1977) (“Solemn

declarations in open court carry a strong presumption of verity” and this constitutes
a “formidable barrier in any subsequent collateral proceeding.”). For all these

In McMann, the Court noted, “[f]or the defendant who considers his confession involuntary
and hence unusable, tendering a plea of guilty would seem a most improbable alternative. The
sensible course would be to contest his guilt, prevail on his confession claim at trial, on appeal, or
if necessary, in a collateral proceeding, and win acquittal, however guilty he might be.” 397 U.S.
at 768.
14

16

reasons, Smith’s objections based on the voluntariness of his pleas are due to be
overruled.
Finally, Smith claims his plea was involuntary because neither his counsel nor
the trial court ensured that Smith “knew the factual elements of the charges of
‘serious physical’ injury.” (Doc. 37 at 96). And, in his amended petition, Smith
contends the state could not prove “serious physical injury.” (Doc. # 17 at 31). He
now also claims that if his counsel had informed him of the proof requirements
related to this element, he would not have pleaded guilty to first degree assault.
(Doc. 17 at 31). The Magistrate Judge found Smith could not demonstrate prejudice
based on his plea because even dismissal of this charge would not have impacted his
life sentence. (Doc. 34 at 41). Smith objects to this finding, and cites Rutledge v.
United States, 517 U.S. 292 (1996). But, Smith’s reliance on Rutledge is misplaced.
In Rutledge, the Supreme Court was concerned with a defendant receiving two
separate sentences for the same conduct—specifically charges for conspiracy to
distribute pursuant to 21 U.S.C. § 846 and a “continuing criminal enterprise”
pursuant to 21 U.S.C. § 848. The Court did not address whether the trial court and/or
counsel ensured the defendant understood every element of a crime. Id., at 306. So,
the actual holding in Rutledge provides no assistance to Smith.
In any event, Smith has admitted he knocked his wife’s boyfriend, Deerman,
unconscious.

(Doc. 37 at 65).

While Smith contends in general terms that
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Deerman’s injury was not particularly serious (id. at 102-103), his beliefs do not
support a finding of any constitutionally deficient plea. Smith’s plea colloquy
demonstrated that Smith clearly understood the charges against him. And, the
Alabama Court of Criminal Appeal’s conclusion that Smith’s plea was voluntary
and intelligent was reasonable. See Massey v. Warden, 733 F. App’x 980, 989-91
(11th Cir. 2018). This objection is due to be overruled.
B. Strategic Choices of Counsel
Many of Smith’s complaints about his trial counsel concern matters of
strategy, such as what witnesses to call, or one counsel’s assessment of the trial
evidence as a “train wreck.” (Doc. 37 at 45-48, 57-63). In relation to these
complaints, Smith does not articulate any particular findings of the Magistrate Judge
that he disagrees with. Instead, Smith rehashes arguments made to the Magistrate
Judge. (Id.). See Heath v. Jones, 863 F.2d 815, 822 (11th Cir. 1989) (“In order to
challenge the findings and recommendations of the magistrate, a party must []
specifically identify the portions of the proposed findings and recommendation to
which objection is made and the specific basis for objection.”).
In any event, ‘[a]n attorney’s strategic choices made after thorough
investigation of the law and facts ‘are virtually unchallengeable.’” Ledford v.
Warden, Georgia Diagnostic & Classification Prison, 818 F.3d 600, 647 (11th Cir.
2016) (quoting Strickland v. Washington, 466 U.S. 668, 690 (1984)). “‘Which
18

witnesses, if any, to call, and when to call them, is the epitome of a strategic decision,
and it is one that we will seldom, if ever, second guess.’” Ledford, 818 F.3d at 647
(quoting Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir.1995) (en banc)). The fact
that a particular approach or defense ultimately proved to be unsuccessful, or that
habeas counsel (or even the habeas petitioner) would have approached a criminal
action differently, does not demonstrate ineffective assistance of counsel. Waters,
46 F.3d at 1522; Chandler v. United States, 218 F.3d 1305, 1318 (11th Cir. 2000)
(“Counsel’s reliance on particular lines of defenses to the exclusion of others--whether or not he investigated other defenses---is a matter of strategy and is not
ineffective unless the petitioner can prove the chosen course, in itself, was
unreasonable.”).
To reiterate, Smith waived his right to subpoena witnesses and gather
evidence when he entered his pleas of guilty. His plea colloquies reflect that each
of Smith’s pleas of guilty were “intelligent and voluntary.” He may not continue
to re-litigate what he believes the facts would have been had he not pleaded guilty
and gone to trial. Smith’s objections based on his trial counsels’ strategic decisions
are therefore due to be overruled.
C. Double Jeopardy
Smith objects to the Magistrate Judge’s finding that double jeopardy is not
implicated by charges for both burglary and assault in one indictment. (Doc. 37 at
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85-91). His objection is without merit.
The double jeopardy clause protects against multiple punishments for the
same offense. North Carolina v. Pearce, 395 U.S. 711, 717 (1969). In determining
whether the crimes charged are “the same offense,” the inquiry is not whether similar
(or even largely identical) facts may support such charges; rather, the test is “whether
each provision requires proof of a fact which the other does not.” Albernaz v. United
States, 450 U.S. 333 (1981) (quoting Blockburger v. United States, 284 U.S. 299,
305 (1932)). Under Alabama law, second degree assault and first-degree burglary
require proof of different facts. See Smith v. State, CR 16-0782, Doc. 71 at 18-19
(Ala. Crim. App. 2017).15 Specifically, to establish a conviction of second degree
assault pursuant to § 13A-6-21(a)(1), the state must prove beyond a reasonable doubt
that the defendant “caus[ed] serious physical injury to [the victim]” and the
defendant acted “[w]ith intent to cause serious physical injury to another person.”16
For first degree burglary pursuant to § 13A-7-5(a)(2), the elements required are “(1)
15

This court may take judicial notice of state court proceedings. Keith v. DeKalb County, Georgia,
749 F.3d 1034, 1041 n.18 (11th Cir. 2014) (judicial notice taken of an online judicial system
similar to Alacourt.com) (citing Fed. R. Evid. 201); Grider v. Cook, 522 F. App’x 544, 546 n.2
(11th Cir. 2013) (citing Lozman v. City of Riviera Beach, Fla., 713 F.3d 1066, 1075 n.9 (11th Cir.
2013)).
Although unclear from his objections, Smith may be attempting to challenge the prosecution’s
decision to charge him with assault second degree, rather than misdemeanor assault. (Doc. 37 at
100). Regardless of whether Smith believes his crimes fit the charges to which he pleaded guilty,
this is wholly a matter of state law. Smith failed to establish any basis for finding the charges
against him were “contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by” the United States Supreme Court. See e.g., Dunn v. Madison, -U.S. --, 138 S. Ct. 9, 11 (2017) (quoting 28 U.S.C. § 2254(d)).
16

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[t]hat the defendant knowingly and unlawfully entered or remaining unlawfully in
the dwelling of (victim); (2) [t]hat in doing so, the defendant acted with the intent to
commit a crime namely therein … and (3) [t]hat while in the dwelling or in effecting
entry thereto, or in the immediate flight therefrom, the defendant … caused physical
injury to any person who was not a participant in the crime.” Id. Because assault
and burglary require proof of separate elements, no constitutional violation occurred
when Smith was convicted of both. Smith’s objection to the report and
recommendation on this basis is due to be overruled.
D. Alabama Community Notification Act Repeal
Smith objects to the Magistrate Judge’s finding that the repeal of the Alabama
Community Notification Act (“ACNA”) of 1996, and its subsequent replacement
with the Alabama Sex Offender Registration and Community Notification Act
(“ASORCNA”), did not relieve Smith of his duty to register (nor make his relevant
conduct not criminal). (Doc. 37 at 92-95). In particular, Smith argues that the repeal
of the ACNA means his prior conduct is no longer criminal. (Id. at 92). While this
may be true, the problem with Smith’s argument is that this claim arises solely under
state law and therefore does not raise any claim of a constitutional nature. This
objection is therefore due to be overruled.
E. Actual Innocence
Smith’s assertion of “actual, factual innocence” (Doc. 37 at 62, 78-79) is also
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off the mark. First, Smith failed to raise this claim in his amended petition. (See
Doc. 34 at 14). But, even if he had raised it, “actual innocence” has never been held
to be a stand alone basis upon which habeas relief may be granted.17 Rather, it serves
as a gateway through which a petitioner may pass,” whether impeded by a procedural
bar or a statute of limitations. McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). In
House v. Bell, 547 U.S. 518 (2006), the Supreme Court made clear that a claim of
actual innocence may excuse a procedural default by the failure to raise such claims
in state court. Id. at 522. Here, however, the Magistrate Judge considered Smith’s
claims on their merits; therefore, Smith’s arguments18 about his actual innocence are
off the mark, and this objection is due to be overruled.

The Supreme Court “ha[s] not resolved whether a prisoner may be entitled to habeas relief
based on a freestanding claim of actual innocence.” McQuiggin, 569 U.S. at 392. The Eleventh
Circuit has assumed such a claim may be “brought in a capital case” where a demonstration of
actual innocence “would render the execution of a defendant unconstitutional” and therefore merit
habeas relief if no state avenues were available. Magluta v. United States, 660 F. App’x 803, 807
(11th Cir. 2016) (emphasis in original). However, “[c]laims of actual innocence based on newly
discovered evidence have never been held to state a ground for federal habeas relief absent an
independent constitutional violation occurring in the underlying state criminal proceeding.
Herrera v. Collins, 506 U.S. 390, 400 (1993). It is not a federal court’s role “to make an
independent determination of petitioner’s guilt or innocence based on evidence that has emerged
since trial,” because the federal court’s role in habeas claims is “to ensure that individuals are not
imprisoned in violation of the Constitution – not to correct errors of fact.” Brownlee v. Haley, 306
F.3d 1043, 1065 (11th Cir. 2002).
17

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Smith alleges that not only is he innocent of the charges to which he pleaded guilty, but also
that had his attorney collected the evidence Smith instructed him too, a “reasonable jurist would
have concluded Brandi Smith lied to get the [Protection from Abuse (“PFA”) order], then
apparently had a motive for obtaining that PFA, and that Brandi Smith was clearly ‘enticing ‘
Smith by coming to his workplace just before this incident, and that Smith was indeed being set
up to be murdered.” (Doc. 37 at 64).
22

Smith also suggests that, but for threats made to his witnesses by Brandi Smith
and Mark Wilson, he would have had witnesses to testify that he was innocent. (See
e.g., Doc. 37 at 76-80). For example, he asserts Jason Clark would have appeared
to testify on his behalf, but threats from Smith and Wilson scared Clark away. (Id.
at 77). But again, because he ultimately pleaded guilty, Smith’s objections based on
his “actual innocence” and his arguments about what may have happened at trial if
he had not pleaded guilty are without merit and therefore due to be overruled.
F. Habitual Offender Act
In his addendum to his initial objections, Smith challenges the imposition of
his sentence based on Alabama’s Habitual Offender Act. (Doc. 39). Smith claims
his stipulation that he had to his prior felony convictions did not waive the state’s
burden to prove those convictions, and therefore he is due habeas relief.19 (Id. at 35). However, as the state court records demonstrate, after his first guilty plea, trial
counsel refused to stipulate to Smith’s prior convictions (Doc. 7-7 at 78-79);
however, Smith later stipulated to these prior felonies. (Doc. 7-10 at 29).
State court determinations of factual issues are presumed correct and a habeas
petitioner bears the burden of rebutting that presumption by “clear and convincing

This claim, challenging the propriety of the waiver of the state’s burden of proof to establish at
least three prior felonies, is raised for the first time in Smith’s addendum to his objections. (Doc.
39). He did, however, challenge other aspects of the application of the Habitual Offender Act to
his sentence. (See e.g., doc. 7-37 at 9-10).
19

23

evidence.” Wood v. Allen, 558 U.S. 290, 293 (2010) (quoting 28 U.S.C. §
2254(e)(1)). Whether or not Smith had three prior felonies is a question of fact
suitable to stipulation. See § 13A–5–10.1(a), Ala.Code 1975 (“Certified copies of
case action summary sheets, docket sheets or other records of the court are
admissible for the purpose of proving prior convictions of a crime.”); see also Hines
v. Thomas, 2016 WL 4492816, *19 (S.D. Ala. Feb. 1, 2016) (noting that “Alabama
courts held that prior convictions could be proved by a certified minute entry, a
certified judgment entry, or by the defendant’s admission of the prior conviction.”)
(citations omitted); Debardelaben v. Price, 2015 WL 1474615, *6 (M.D. Ala. 2015)
(gathering cases on the point of law). Had Smith refused to stipulate to the existence
of these prior felonies, the state would have had the option of producing certified
copies of the convictions. See e.g., Jones v. White, 992 F.2d 1548, 1555 n.4 (11th
Cir. 1993). But, in light of his later stipulation, wherein he agreed that he did in fact
commit the felonies at issue, that was unnecessary. For these reasons, Smith’s
objection is without merit and therefore due to be overruled.
IV. CONCLUSION
Having carefully reviewed and considered de novo all the materials in the
court file, including the Magistrate Judge’s Report and Recommendation and
Smith’s objections, amended objections and addendum, the court concludes that the
Magistrate Judge’s findings are due to be and are hereby ADOPTED and his
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recommendation is ACCEPTED.

Smith’s objections are OVERRULED.

Accordingly, the petition for writ of habeas corpus is due to be denied and dismissed
with prejudice.
Further, the court concludes the petition does not present issues that are
debatable among jurists of reason. Therefore, a certificate of appealability is 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. A separate Final Order
will be entered.
DONE and ORDERED this February 19, 2020.

_________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

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