Borden v. Allen

Filing 22

MEMORANDUM OPINION. Signed by Judge Robert B Propst on 7/23/2012. (AVC)

FILED
2012 Jul-23 AM 08:13
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
JAMES BORDEN,
Petitioner,
vs.
KIM THOMAS, Commissioner of the
Alabama Department of Corrections; and
the ATTORNEY GENERAL OF
THE STATE OF ALABAMA,
Respondents.

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Case No. 5:10-cv-2962-RBP-TMP

MEMORANDUM OPINION
The magistrate judge filed his report and recommendation in this habeas action pursuant to
28 U.S.C. § 2254 on June 5, 2012, to which the petitioner filed extensive objections on July 5, 2012.
Having now reviewed and considered de novo the objections and other materials in the court file,
the objections are hereby OVERRULED for the reasons expressed below.

I. Obections to Magistrate Judge’s Consideration of the Merits
Petitioner first objects to the report and recommendation on the basis that he was denied the
opportunity to brief and argue the merits of his claims as he understood that the magistrate judge was
considering only the procedural arguments raised in the respondents’ motion to dismiss. He argues
that, “Given that the Magistrate Judge limited briefing to addressing ‘why the petition should not be
summarily denied or dismissed on the basis of answer and record supplied by the respondents,’ any
merits briefing at that point was premature and not authorized by the Court.”

This plainly misstates the procedural history of the case. In response to the magistrate
judge’s Order to Show Cause (Doc. 3), the respondents filed an “Answer,” not a motion to dismiss.
Indeed, in their 36-page Answer, they described their response to petitioner’s claims, saying, “The
Respondents will address the various individual claims, either pleading procedural default or
addressing the merits, as is appropriate.” (Doc. 6, p. 6)(italics added). Nothing in their Answer
limited the argument to mere procedural issues. Furthermore, attached as exhibits to the answer
were portions of the state-court record, including opinions of the state appellate courts both in direct
and collateral appeal. These opinions themselves addressed the “merits” of several claims asserted
by petitioner, thereby implicating the provisions of § 2254(d).
Although it is true that the magistrate judge’s “Order Regarding Summary Disposition”
explained the right to offer affidavits to rebut certain procedural defenses, the Order in no way
limited the basis for summary disposition simply to procedural defenses. The first paragraph plainly
invites the petitioner to explain why the petition should not be summarily denied on the basis of the
respondents’ answer and the state-court record supplied. It states, “The purpose of this Order is to
notify the petitioner that the case will be treated by the Court as ripe for summary disposition and
to further inform the petitioner of his right to file affidavits or other materials to show why the
petition should not be summarily denied or dismissed on the basis of the answer and record supplied
by the respondents.” (Doc. 7).
Petitioner plainly understood that the “merits” of his claims was also under consideration by
the magistrate judge. In response to the Order, petitioner filed a reply brief and an extensive list of
evidentiary exhibits. (Doc. 11). His reply brief argued the merits of several claims, and even in the
context of disputing the state courts’ rejection of other claims as not pleaded with sufficient
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specificity, petitioner not only argued that application of Ala. R. Crim. P. 37.2(d) to his claims was
erroneous, but that the claims themselves are meritorious. Indeed, petitioner himself contended in
the reply brief that the state courts’ resolution of his claims of ineffective assistance amounted not
to a procedural default, but a rejection on the merits. Petitioner wrote this in his reply brief:

In determining that Mr. Borden had failed to meet Rule 32.7(d)’s requirements, the
court assessed the merits of the allegation and necessarily applied the Strickland
standard to the facts asserted by Mr. Borden. Thus, while the court referenced a
procedural rule in its discussion, the analysis was actually a decision on the merits.

(Doc. 10, p. 13). It is simply not true, as petitioner now wants to argue, that he believed this reply
to the respondents’ Answer was limited to addressing procedural defenses. He was well aware that
summary disposition of a habeas claim can occur not just on the basis of procedural defenses, but
also where the claim is refuted on the merits by the record.
But even further, on November 9, 2011, the magistrate judge ordered the respondents to
expand the record by filing the state trial record, including the record of all trial and pretrial
proceedings in the case. The respondents did so on November 23, 2011. Even more to the point,
on December 14, 2011, the magistrate judge again ordered the respondents to expand the record,
explaining:

The petitioner, James Henry Borden, through counsel, filed his petition for writ of
habeas corpus on November 4, 2010. He raises, among other claims, numerous
claims of ineffective assistance of counsel. The respondents have asserted that the
claims are procedurally barred based upon Harris v. Reed, because the Alabama
Court of Criminal Appeals determined that the claims were not pleaded with
sufficient particularity to satisfy Alabama Rule of Criminal Procedure 32. Since that
answer was filed, the Eleventh Circuit Court of Appeals has determined that such
rulings “constitute rulings on the merits,” and are not dismissals on procedural
grounds. Borden v. Allen, 646 F.3d 785, 812-13 (11th Cir. 2011). Accordingly, the
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federal appeals court held, the habeas petitioner’s claims are subject to the
“deferential standards set forth in AEDPA.” 646 F.3d at 816.
Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), the petitioner can obtain relief on claims adjudicated on the merits in
state court only if he shows that the state court's adjudication of the claim “resulted
in a decision that was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court” or “resulted in a
decision that was based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1) and (2).
See Williams v. Taylor, 529 U.S. 362, 404, 120 S. Ct. 1495, 146 L. Ed. 2d 389
(2000); Putman v. Head, 268 F.3d 1223, 1241 (11th Cir. 2001). In th order to
evaluate whether the state courts reached an “unreasonable determination of the facts
in light of the evidence presented,” the court must be able to view the evidence
presented to the fact-finding court.

(Doc. 14). If petitioner (or his counsel) was ever confused about the scope of the issues under
consideration for summary disposition, he could not have been confused after this order was entered.
It unambiguously notified the parties that “the merits” of petitioner’s ineffective assistance claims
was at issue. After the respondents produced the state-court record on January 2012, neither
petitioner nor his counsel ever sought to file additional evidentiary materials (as they had earlier),
or to seek clarification from the court regarding the claims and issues under consideration.
Petitioner simply was not under any misapprehension about the scope of the issues under
consideration for summary disposition. The objection that it was improper for the magistrate judge
to consider the merits of his claims without giving petitioner an opportunity to brief and argue the
merits is simply wrong, and is overruled.

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II. Objection that Magistrate Judge Improperly Applied § 2254(d) to Claims
Petitioner objects that the magistrate judge erred in finding that the state-court resolution of
his claims of ineffective assistance was not “objectively unreasonable” and, therefor, is entitled to
deference under § 2254(d). First, he argues that the magistrate judge erroneously examined each
alleged instance of ineffective assistance without examining the cumulative effect of all of them.
The court rejects this argument.
It must be remembered that the Antiterrorism and Effective Death Penalty Act of 1996
requires the federal habeas court to defer to the state courts' resolution of a claim on the merits,
unless that resolution is contrary to or an unreasonable application of clearly established Supreme
Court holdings, or the facts found by the state courts underlying the resolution were unreasonable
in light of the record evidence. The federal habeas court may not grant relief simply because it
believes the state court decided the claim incorrectly; the state-court resolution must either run
counter to clearly established Supreme Court law or be an application of it that is “objectively
unreasonable.” Insofar as petitioner argues here that it was error to examine his claims of ineffective
assistance individually and not cumulatively, there is no clearly established Supreme Court law to
that effect. Earlier this year, the Eleventh Circuit implicitly noted that there is no clear Supreme
Court holding that attorney errors, not prejudicial in themselves, can cumulatively amount to
ineffective assistance. In Hunt v. Commissioner, Alabama Dept. of Corrections, 666 F.3d 708, 731732 (11th Cir. 2012), the court of appeals wrote:

Hunt argues that the court of criminal appeals refused to consider whether the
cumulative effect of counsel's alleged errors amounted to ineffective assistance and,
in doing so, unreasonably applied clearly established federal law. We reject this
claim. Even if we were to determine that clearly established federal law mandates
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a cumulative-effect analysis of ineffective-assistance claims, Hunt would not be
entitled to relief: he has not shown that in this case the cumulative effect of counsel's
alleged errors amounted to ineffective assistance.

Hunt v. Commissioner, Alabama Department of Corrections, 666 F.3d 708, 731-32 (11th Cir. 2012).
Clearly implied by this holding is the recognition that it is not clearly established that ineffective
assistance claims can or must be analyzed cumulatively. That being so, the magistrate judge did not
err by accepting the state courts’ allegation-by-allegation analysis of petitioner’s claims. In the
absence of clearly established law to the contrary, the magistrate judge was required to defer to the
state courts’ conclusion.
Next, petitioner objects that the magistrate judge relied upon the affidavits of petitioner’s trial
counsel, submitted as part of the Rule 32 record from the state courts. Of course, to the extent the
state courts made findings of fact based in part on these affidavits, those findings are entitled to
deference and a presumption of correctness unless petitioner rebutted them with clear and convincing
evidence. See 28 U.S.C. § 2254(e). Petitioner may not complain that the magistrate judge pointed
to the evidence used by the state courts to make their findings of fact. But even if the affidavits were
offered as new, original evidence in the instant habeas action, Rule 7(b) of the Rules Governing §
2254 Cases expressly authorizes the use of affidavits as evidence. Petitioner could have done the
same.
Petitioner next objects that the magistrate judge made his own determination of the merits
of his claims of ineffective assistance without giving him an opportunity to offer evidence on them,
or to brief and argue them. This simply is not true. Over and over again, the magistrate judge
undertook to assess whether the state courts’ determinations with respect to each allegation of

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ineffectiveness was “objectively unreasonable,” consistent with the deference required by AEDPA.
In doing so, the magistrate judge reviewed the same evidence used by the state courts to measure
whether the conclusion reached by the state courts was “contrary to” or “an unreasonable
application” of controlling Supreme Court law. The magistrate judge was required to defer to the
state court findings of fast and legal conclusions unless no fairminded jurist could have come to the
same determinations. Stated another way, if the conclusion reached by the state courts on these
ineffective assistance claims is debatable among reasonable jurists, it cannot be “objectively
unreasonable,” and must be deferred to.
Having carefully reviewed each of petitioner's allegations of ineffective assistance, the court
agrees with the magistrate judge's assessment that the conclusions reached by the state courts are not
contrary to or an unreasonable application of Supreme Court law. The state courts properly used
Strickland v. Washington as the legal basis for their analysis, and their application of Strickland was
not objectively unreasonable. The petitioner's objections to the magistrate judge’s recommendation
as to his claims of ineffective assistance are overruled.
Petitioner also objects to the magistrate judge’s determination that the state courts’
conclusion that there was no Pate error was not objectively unreasonable and is entitled to deference
under § 2254(d). He contends that his procedural due process rights were violated when the trail
court failed to hold a pretrial hearing on whether the defendant was competent to stand trial. The
petitioner does not argue that he was, in fact, incompetent to stand trial (as two psychologists
testified during his trial that, in their opinion, he was competent); rather, he argues that the trial court
had reasonable grounds to question his competency to stand trial and, hence, was required by Pate
v. Robinson, 383 U.S. 375 (1966), to hold a pretrial competency hearing. The state courts found
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that there were not reasonable grounds to question his competency, and the magistrate judge
concluded this was not “objectively unreasonable.”
The court agrees that the resolution of petitioner’s Pate claim by the state courts is entitled
to deference. The magistrate judge carefully reviewed the information available to the trial judge
before trial, and concluded that a reasonable judge could find that such information did not create
a reasonable doubt about petitioner’s competency to stand trial. The resolution reached by the state
courts is entitled to deference, unless it is “objectively unreasonable,” that is, unless the finding of
no Pate error was so incorrect that it is not debatable among reasonable jurists. That simply is not
the case. Thus, because the state-court determination of this issue was not objectively unreasonable,
the magistrate judge correctly found that this court must defer to it. The objection is overruled.

III.

Objection to Magistrate Judge Finding Trial Judge-Recusal Claim Procedurally

Defaulted
Petitioner objects to the magistrate judge’s finding that he procedurally defaulted the claim
that his right to due process was violated when the trial judge failed to recuse himself from
petitioner’s trial. The magistrate judge noted that petitioner did not move for recusal of the trial
judge, nor did he raise the failure of the trial judge to recuse sua sponte as an issue on direct appeal.
The claim appeared for the first time in petitioner’s post-conviction Rule 32 petition.
Petitioner’s present assertion that he was unaware of the claim during trial and on direct
appeal, and, hence, there is cause excusing the default, is unpersuasive. Petitioner was prosecuted
for second-degree murder in 1975 by special prosecutors hired by the family of petitioner’s victim.
Those special prosecutors were lawyers from the Moulton, Alabama, firm of Speake & Speake, of
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which the trial judge was a member at that time of the 1975 prosecution. That Judge Reich was a
member of the firm that previously prosecuted petitioner was not difficult to ascertain in a small
county like Lawrence County, Alabama,1 in 1994. Petitioner has offered no explanation for why he
failed to inquire into the trial judge’s status at the time of trial.
Moreover, the mere fact that Judge Reich previously was a member of a firm that had been
adverse to petitioner 20 years earlier did not necessarily require his recusal. As the magistrate judge
noted, many former prosecutors go on to become judges in the circuits in which they prosecuted
cases, and their prior prosecutorial experiences do not require these judges to recuse themselves from
cases in which a former defendant prosecuted by the judge appears before them. A defendant’s
rights are violated only where it can be shown that the trial judge has an actual personal bias against
the defendant or a pecuniary interest in the case. See Davis v. Jones, 506 F.3d 1325 (11th Cir. 2007).
Absent some evidence that Judge Reich was actually biased against petitioner due to his firm’s
involvement in the prosecution of the petitioner nearly twenty years earlier, due process did not
require his recusal. The objection is overruled.

IV. Objection to Finding Prosecutorial-Misconduct Claim Meritless
Petitioner objects to the magistrate judge’s determination that his claim of prosecutorial
misconduct was meritless and that the state courts’ rejection of the claim is entitled to deference.
Petitioner contends that the prosecutors final argument deprived him of due process of law because,
during the argument, the prosecutor said, “This defendant stabbed Nellie Ledbetter to death on her

1 The court notes that even today there are only about 30 lawyers in all of Lawrence County.
See The Alabama Legal Directory: Official Directory of the Alabama State Bar, 2012 ed., p. 282.
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front porch on September 5, 1993. He is guilty of the charge of capital murder. That is the law!”
The state courts rejected the claim on direct appeal, which determination, the magistrate judge found
is entitled to deference under § 2254(d). The court agrees with the magistrate judge that, in the
context of the entire final argument, this statement did not render petitioner’s trial so defective as
to deprive him of fundamentally fair trial. The statement argued the evidence before the jury and
suggested the conclusion they should reach from the evidence. The magistrate judge correctly found
that “relief is available only where the prosecutor’s conduct has ‘so infected the trial with unfairness
as to the make the resulting conviction a denial of due process.’” That did not happen here, and the
objection to the magistrate judge’s conclusion is overruled.

Conclusion
Having carefully reviewed de novo all the materials in the court file relevant to these
objections, they court finds that the objections are due to be overruled. By separate order, the court
will adopt the report and recommendation of the magistrate judge and deny and dismiss the instant
habeas petition.
DONE this 23rd day of July, 2012.

________________________________________
ROBERT B. PROPST
SENIOR UNITED STATES DISTRICT JUDGE

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