Miller v. Price et al

Filing 31

MEMORANDUM OPINION Signed by Judge William M Acker, Jr on 7/29/14. (SAC )

FILED
2014 Jul-29 PM 02:11
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION

MARCUS F. MILLER,
Petitioner,
vs.
CHERYL PRICE, Warden, et al.,
Respondents.

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Case No. 5:12-cv-02207-WMA-TMP

MEMORANDUM OPINION
On June 24, 2014, the magistrate judge filed his Report and Recommendation in the
above-styled cause, recommending that this petition for habeas corpus relief filed pursuant
to 28 U.S.C. § 2254 be denied and dismissed with prejudice, finding that the habeas
petitioner was untimely filed under 28 U.S.C. § 2244(d). Marcus F. Miller (“Petitioner”)
timely filed his objections to the Report and Recommendation, contending that it is not time
barred. (Doc. 30). Having now carefully reviewed and considered de novo all the materials
in the court file, including the Report and Recommendation, the Court agrees with Petitioner
that the instant habeas action is not time barred. Therefore, the magistrate judge’s Report
and Recommendation is REJECTED. Nevertheless, for the reasons expressed herein, the
court finds that petitioner is not entitled to habeas relief, and his petition is due to be
DENIED and DISMISSED WITH PREJUDICE.

DISCUSSION
Time Bar
In his pro se petition for writ of habeas corpus, the Petitioner challenges the
constitutional validity of the sentence he received originally on April 9, 1999, to life without
the possibility of parole (“LWOP”). (Doc. 1, p. 2). Throughout the progression of the
action, however, it is clear that the Petitioner actually is attempting to challenge the
reinstatement of his LWOP sentence on February 19, 2009. The conflicting dates present an
issue when calculating the one-year time limit provided in AEDPA for filing a habeas
petition. The magistrate judge, in his Report and Recommendation, determined that –
regardless of which date is used – the Petitioner’s action is time-barred under AEDPA’s oneyear limitations period. The Petitioner, however, argues in his objections to the Report and
Recommendation that the time was miscalculated with regard to the “resentencing” date and
that his habeas petition filed pursuant to that resentencing was timely. Even though the court
agrees that the instant habeas action is not time barred, he is not entitled to relief on the
merits of the claim.
An understanding of the court’s reasoning requires an unfortunate excursion into the
minutae of the state-court procedure in this case. On April 9, 1999, following a jury trial,
Petitioner was convicted in Case No. CC-98-1363 of the offenses of first-degree robbery and
first-degree burglary. Upon proof of three prior felony convictions, the trial court sentenced
the Petitioner, pursuant to the Habitual Felony Offender Act, to life imprisonment without

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the possibility of parole (“LWOP”). In January 2005, the Petitioner filed a Rule 32 petition
in Case No. 86-442, seeking to have one of the prior convictions used to enhance his
sentence set aside. To be clear, the Rule 32 petition was not filed in the LWOP case (CC-981363), but in the case in which the allegedly invalid conviction occurred (CC-86-442). On
May 6, 2005, the Madison County Circuit Court granted the Rule 32 petition and vacated the
conviction in CC-86-442. Because that conviction was one of three used to enhance
Petitioner’s sentence in CC-98-1363 to LWOP, the court allowed him to make an oral
Rule 32 motion in CC-98-1363 to vacate the LWOP sentence. That oral motion was granted,
the court vacated the LWOP sentence, and then immediately resentenced Petitioner to life
with the possibility of parole. On the same day, however, following the hearing, the State
moved for the circuit court to reconsider and rescind its resentencing order and to reinstate
the Petitioner’s original LWOP sentence. In support, the State proffered another valid prior
felony conviction to replace the prior conviction that had been vacated. The court rescinded
its order reducing Petitioner’s sentence to a life sentence, but it did not rescind the grant of
Rule 32 relief in CC-86-442. This effectively left the Petitioner unsentenced in CC-98-1363
until February 19, 2009, when, in light of the newly proffered felony conviction, the trial
court again sentenced Petitioner to life without the possibility of parole. In an opinion
entered on April 20, 2009, the circuit court denied Petitioner’s oral Rule 32 petition,
concluding that it was proper for the State to substitute another felony conviction for the
invalidated one and that Petitioner’s reinstated sentence of life without the possibility of

3

parole was proper. (See Doc. 29, pp. 2-5). Petitioner them moved the court to alter or amend
its order denying the relief of resentencing to a life sentence, but it was denied. Petitioner
appealed from the denial of his oral Rule 32 motion, but it was affirmed by the Alabama
Court of Criminal Appeals on July 16, 2010. In doing so, the appellate court agreed with the
trial court that the State can be allowed to substitute a felony conviction for one invalidated
if proper notice is give to the defemdant. As a result, the court held “the circuit court
properly sentenced Miller to life imprisonment without possibility of parole.” (Doc. 6-6,
at 10). The Alabama Supreme Court denied certiorari on October 8, 2010.
Petitioner filed another Rule 32 petition on December 2010, expressly attacking the
February 19, 2009 “resentencing,” but that petition was summarily denied and Petitioner
dismissed the appeal from the denial. He filed yet another Rule 32 challenge to the
resentencing on May 17, 2011, which ultimately was denied by the trial court. The denial
was affirmed on appeal on April 19, 2013, rehearing was denied, and the Alabama Supreme
Court denied certiorari on August 16, 2013. (Doc. 23-3). The instant habeas action was
filed while the appeal of the May 17 Rule 32 petition was pending.
The petition is not time barred because the May 17, 2011 Rule 32 was a timely,
“properly filed” post-conviction petition that tolled the one-year limitation of § 2244(d).
First, it is clear that in this action Petitioner is challenging his “resentencing” on February 19,
2009. It is also clear that a “resentencing” is what occurred on that date. As the Alabama
Court of Criminal Appeals noted in its opinion of April 19, 2013, the state circuit court no

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longer had jurisdiction over the Rule 32 petition, which had been granted in May 2005. The
only thing the court had jurisdiction to do was to resentence the Petitioner after it had vacated
the prior LWOP sentence in May 2005. “Clearly then, the February 2009 hearing was a
resentencing hearing and not a hearing on Miller’s May 2005 oral Rule 32 petition.” (Doc.
23-1, p. 2, note 2). Thus, the current sentence under attack by Petitioner is that LWOP
sentence imposed on February 19, 2009.
If the procedural history of this case were not confusing enough, it gets even more
confusing. What is the “finality date” for purposes of triggering the § 2244(d) one-year
limitation for filing a habeas challenge to the February 19, 2009, resentencing? The “finality
date” usually is the date on which all direct appeals of a conviction or sentence end.
Although not free of doubt, the court believes that the Alabama Court of Criminal Appeals
treated Petitioner’s subsequent appeal as essentially a direct appeal from the April 2009
resentencing. There is no question but that petitioner sought review of the reimposed LWOP
sentence; he filed a motion to alter or amend the sentence and then appealed the denial of the
motion. The Alabama Court of Criminal Appeals considered his arguments on the merits,
concluding in July 2010 that “the circuit court properly sentenced Miller to life
imprisonment without possibility of parole.” (Doc. 6-6, at 10). Furthermore in a
subsequent opinion arising from a subsequent Rule 32 petition, the state appellate court
seems to have taken the position that the only thing that was appealable was the resentencing
itself, separate and apart from any Rule 32 petition then pending. As quoted above and

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explained more fully in footnote 2 of the Court of Criminal Appeals’ April 19, 2013 opinion,1
the state appellate court believed the resentencing was a separate matter from the Rule 32
petition. Indeed, the appellate court expressly stated that the trial court had lost jurisdiction
in the Rule 32 matter, yet it properly resentenced Petitioner on February 19, 2009. For this
reason, the court determines that the “finality date” for triggering the one-year limitation
period under § 2244(d) was ninety days after October 8, 2010 (the date the Alabama Supreme
Court denied certiorari), or January 6, 2011, when the time for seeking review in the United
States Supreme Court expired.
Despite this conclusion and the obvious fact that more than one calendar year elapsed
between January 6, 2011, and the filing of this petition on June 16, 2012, statutory tolling of

1

For ease of reference, footnote 2 in the April 19, 2013, opinion reads as follows:

In its order, the court purported to deny Miller’s oral Rule 32 petition
requesting resentencing that he had made at the May 2005 hearing. However, as
noted above, the court had previously granted that petition at the May 2005 hearing
and resentenced Miller. Although the court subsequently set aside “its sentencing
order and commitment,” i.e., its 2005 resentencing, it did not specifically set aside
its granting of the oral Rule 32 petition. Therefore, the court clearly had no
jurisdiction, four years later, to alter its previous ruling on the oral Rule 32 petition.
See, e.g., Loggins v. State, 910 So. 2d 146, 148 (Ala. Crim. App. 2005) (a circuit
court retains jurisdiction to modify a judgment, including a judgment on a Rule 32
petition, for only 30 days after the judgment is entered). Additionally, the court
specifically stated at the hearing in February 2009 that the purpose of the hearing was
“to determine what [Miller’s] sentence will be,” asked Miller multiple times if he
was ready to be resentenced, and then stated that it was sentencing Miller to life
imprisonment without the possibility of parole. (Record in case no. CR-08-1143, R.
34, 57, 65, and 68.) Clearly then, the February 2009 hearing was a resentencing
hearing and not a hearing on Miller’s May 2005 oral Rule 32 petition.
(Doc. 23-1, at 3, fn. 2).
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the time limit saves the timeliness of the petition. Section 2244(d)(2) provides that the time
during which a “properly filed” state post-conviction petition is pending is excluded from the
calculation of the one-year limitation. Thus, from the date of the filing of a “properly filed”
state post-conviction petition to the date it is finally resolved in state court, the one-year
limitation for filing a federal habeas petition is tolled.
Petitioner filed his first Rule 32 petition expressly attacking the resentencing on
December 22, 2010, at which time direct appeal of Petitioner’s resentencing was still
pending, the finality date had not yet arrived. Although that petition was subsequently
dismissed on appeal in July 2011, Petioner filed yet another Rule 32 petition on May 17,
2011, which the state courts plainly regarded as “properly filed,” even though relief was
denied on procedural grounds.2 See Doc. 23-1. Thus, even if the December 2010 petition
was not “properly filed,” the one-year limitation had not expired at the time the May 2011
petition was filed. The May 2011 petition and appeal remained pending when this habeas
action was filed in June 2012. Accordingly, the one-year limitation was tolled and had not
expired before the filing of this action. The court, therefore, disagrees with the magistrate
judge’s recommendation that the action be dismissed as time barred.

2

It appears that at least one of Petitioner’s Rule 32 claims – whether the Tennessee
conviciton used to replace the vacated conviction for enhancement of his sentence to LWOP was
comparable to a felony under Alabama law for purposes of HFOA enhancement – was considered
on the merits. See Doc. 23-1, at 7-10.
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Turning to the claims pleaded in his habeas petition, the Petitioner advances three
arguments – that his sentence exceeded the maximum authorized by law, that it violated
double jeopardy, and that it violated his right to due process.3 In the Petitioner’s objections
to the Report and Recommendation he raises several arguments that were not originally
stated in his habeas petition. Although the new arguments are not properly before the court,
in an abundance of caution, the court will address the new claims along with the Petitioner’s
original claims. The Petitioner’s arguments, as enumerated in his objections to the Report
and Recommendation, are as follows:

1. His sentence exceeded the maximum authorized by law;
2. The trial court did not have jurisdiction to reinstate his LWOP sentence,
and, because his resentencing is a jurisdictional issue, it can be raised at any
time;
3. Once his sentence had been reduced to life, the trial court lost jurisdiction
over the case and did not have jurisdiction to reinstate the original LWOP
sentence;
4. The reinstatement of his LWOP sentence violated his right to be free from
double jeopardy;
5. He was acquitted of his LWOP sentence because of procedural faults at his
original sentencing;
6. He was acquitted of his LWOP sentence when the court determined that
one of the prior convictions originally used to support the sentence was
insufficient to support a sentence under the Habitual Felony Offenders Act
(“HFOA”) and subsequently reduced his sentence to life;
3

The Petitioner filed a motion to amend his habeas petition (doc. 19), which the magistrate
judge correctly dismissed in his Report and Recommendation as moot. (Doc. 29, n. 3).
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7. The reinstatement of his LWOP sentence violated his constitutional right
to Due Process;
8. The prosecution failed to prove that the Petitioner had three prior felony
offenses to support the reinstatement of his LWOP sentence under the HFOA;
and
9. The reinstatement of his LWOP sentence was based on a statute not in
place at the time of his sentencing and, therefore, violated the tenet that “no Ex
Post Facto law shall be passed.”

None of the Petitioner’s claims are cognizable by this court because they are either:
(1) state-law claims that do not raise an issue of federal law, (2) are claims that have been
declared defaulted by a state court, (3) are claims that have been adjudicated on the merits
by a state court and are procedurally barred, or (4) are claims that have not been adjudicated
by a state court and still are procedurally barred.

Matters of State Law
Sentence Exceeds the Maximum Authorized by Law
The Petitioner argues in claim one that his reinstated LWOP sentence is illegal
because it is greater than the maximum authorized by law. The Petitioner’s argument is not
cognizable in an action brought pursuant to 28 U.S.C. § 2254. The claim fails to raise any
issue of federal law as is required for the Petitioner to raise the claim in a federal habeas
petition. The claim merely pertains to the application of state statutes. The federal habeas
court does not sit as a court of appeals to review any error allegedly committed by the state

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courts. Federal habeas relief is available only if the petitioner alleges and proves that his
conviction contravenes federal law. Carrizales v. Wainwright, 669 F.2d 1053 (11th Cir.
1983). By arguing that Alabama law has been improperly interpreted or applied by Alabama
courts, the Petitioner has not asserted the violation of a federal right.
Even assuming that Petitioner intends to state a federal consitutional claim, the LWOP
sentence was properly supported under the HFOA. For the reasons explained below, there
was no constitutional error in allowing the prosecution to substitute a newly proffered felony
following the invalidation of one it had used to prove the predicates necessary for sentencing
enhancement. Accordingly, the Petitioner’s claim is due to be denied and dismissed with
prejudice.
Petitioner’s “acquittal”
The Petitioner argues in claims five and six that he was “acquitted” of his LWOP
sentence. He states in claim five that he was “acquitted” of his original LWOP sentence due
to procedural faults in the original sentencing. In claim six he argues that the reduction of
his sentence based on the determination that one of the prior felony convictions used to
support a sentence under the HFOA was insufficient was commensurate to an acquittal. The
Petitioner does not further elaborate on these claims. The question of whether a sentence
reduction constitutes an “acquittal” from the previous, harsher sentence is not a question of
federal law. The court presumes that the Petitioner raises the argument to bolster his double
jeopardy claim. Petitioner’s argument, however, constitutes a question of state court

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procedure, and is not properly before this court. The Petitioner’s double jeopardy argument
is addressed, infra, and claims five and six are due to be denied and dismissed with prejudice.

Claims Declared Defaulted in State Court
Lack of Jurisdiction
The Petitioner’s jurisdictional argument has two components, the first of which is
brought in claim two. The Petitioner’s argument in claim two – that because his sentence
was illegal, the circuit court lacked jurisdiction to impose the sentence and, as a jurisdictional
matter, the claim can be raised at any time – is procedurally defaulted because it was declared
so by an appropriate state court. The Alabama Court of Criminal Appeals determined:

Miller next reasserts on appeal the claim from his petition that the trial
court lacked jurisdiction to set aside its May 2005 resentencing and to then
impose a harsher sentence in February 2009. Relying on Ex parte Tice, 475
So. 2d 590 (Ala. 1984), Miller argues that “[o]nce a valid sentence has been
entered, it cannot, in the absence of fraud or another compelling reason, be
altered anytime thereafter so as to increase the severity of the sentence.”
(Miller’s brief, p. 21.)
Although couched in jurisdictional terms, this claim is a constitutional
one. See, e.g., Ex parte Tice, 475 So. 2d at 592, and Hardy v. State, 455 So.
2d 265, 268 (Ala. Crim. App. 1984) (both noting that imposing a harsher
sentence upon resentencing may, in certain circumstances, violate a
defendant’s constitutional rights). Therefore, it is subject to the preclusions in
Rule 32.2. See Abrams v. State, 978 So. 2d 794, 795 (Ala. Crim. App. 2006)
(“A constitutional challenge is nonjurisdictional and therefore subject to the
procedural bars set forth in Rule 32, Ala. R. Crim. P.”). In this case, as the
State asserted in its response to Miller’s petition, this same claim was raised
in Miller’s December 2010 petition. Therefore, it is precluded by Rule
32.2(b), which provides, in relevant part, that “[t]he court shall not grant relief
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on a successive petition on the same or similar grounds on behalf of the same
petitioner.
(Doc. 23-1, p. 7).
The federal courts may not consider a claim set forth in a habeas petition when a
petitioner has failed to follow the state’s procedural rules for raising the claim in the state
courts. The Eleventh Circuit has stated:

The federal courts’ authority to review state court criminal convictions
pursuant to writs of habeas corpus is severely restricted when a petitioner has
failed to follow applicable state procedural rules in raising a claim, that is,
where the claim is procedurally defaulted. Federal review of a petitioner’s
claim is barred by the procedural default doctrine if the last state court to
review the claim states clearly and expressly that its judgment rests on a
procedural bar, Harris v. Reed, 489 U.S. 255, 263, 109 S. Ct. 1038, 1043, 103
L. Ed. 2d 308 (1989), and that bar provides an adequate and independent state
ground for denying relief. See id. at 262, 109 S. Ct. at 1042-43; Johnson v.
Mississippi, 486 U.S. 578, 587, 108 S. Ct. 1981, 1987, 100 L. Ed. 2d 575
(1988). The doctrine serves to ensure petitioners will first seek relief in
accordance with state procedures, see Presnell v. Kemp, 835 F.2d 1567, 157879 (11th Cir. 1988), cert. denied, 488 U.S. 1050, 109 S. Ct. 882, 102 L. Ed. 2d
1004 (1989), and to “lessen the injury to a State that results through
reexamination of a state conviction on a ground that a State did not have the
opportunity to address at a prior, appropriate time.” McCleskey v. Zant, ___
U.S. ___, 111 S. Ct. 1454, 1470, 113 L. Ed. 2d 517 (1991).

Johnson v. Singletary, 938 F.2d 1166, 1173 (11th Cir. 1991). Thus, if a claim previously has
been presented to a state court in some form, a federal habeas court may refuse to hear that
claim only if the last state court rendering the judgment “‘clearly and expressly’ states that

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its judgment rests on a state procedural bar.” Harris v. Reed, 489 U.S. 255, 263, 109 S. Ct.
1038, 103 L. Ed. 2d 308, 317 (1989).
In this case, the Petitioner first raised this particular jurisdictional argument in his
December 2010 Rule 32 petition. That petition was summarily dismissed by the circuit court.
The Petitioner appealed the decision. However, before the Alabama Court of Criminal
Appeals entered a judgment on the appeal, the Petitioner filed a motion to dismiss the appeal,
which the Alabama Court of Criminal Appeals granted in July 2011. (Doc. 23-1, pp. 3-4).
Because the Petitioner already had raised the jurisdictional question, and it had been fully
adjudicated, the Alabama Court of Criminal Appeals determined that the claim was
precluded by Rule 32.2(b) as a successive petition. It is clear from the record that the last
state court to review the jurisdictional claim set forth herein “clearly and expressly” stated
that its judgment rested on a procedural bar, which was independent and adequate under state
law. See Whiddon v. Dugger, 894 F.2d 1266 (11th Cir. 1990). Accordingly, claim two is
due to be denied and dismissed with prejudice.

Claims Adjudicated on the Merits in State Court
Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
the petitioner can obtain relief on claims that have been adjudicated on the merits in state
court only if he shows that the Alabama Court of Criminal Appeals’ adjudication of the
claims “resulted in a decision that was contrary to, or involved an unreasonable application

13

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 William 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). This standard of review is strict, and federal courts are
required to give “greater deference to the determinations made by state courts than they were
required to under the previous law.” Verser v. Nelson, 980 F. Supp. 280, 284 (N.D. Ill.
1997)(quoting Spreitzer v. Peters, 114 F.3d 1435, 1441 (7th Cir. 1997)).
The state-court determination of an issue will be sustained under § 2254(d)(1) unless
it is “contrary” to clearly established, controlling Supreme Court law or is an “unreasonable
application” of that law. These are two different inquiries, not to be confused. The Supreme
Court has explained:

Section 2254(d)(1) defines two categories of cases in which a state prisoner
may obtain federal habeas relief with respect to a claim adjudicated on the
merits in state court. Under the statute, a federal court may grant a writ of
habeas corpus if the relevant state-court decision was either (1) “contrary to .
. . clearly established Federal law, as determined by the Supreme Court of the
United States,” or (2) “involved an unreasonable application of . . . clearly
established Federal law, as determined by the Supreme Court of the United
States.” (Emphasis added).

Williams v. Taylor, 529 U.S. 362, 404, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000). A statecourt determination is “contrary” to clearly established law in either of two ways:

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First, a state-court decision is contrary to this Court’s precedent if the state
court arrives at a conclusion opposite to that reached by this Court on a
question of law. Second, a state-court decision is also contrary to this Court’s
precedent if the state court confronts facts that are materially indistinguishable
from a relevant Supreme Court precedent and arrives at a result opposite to
ours.

Id. at 405. Likewise, a state-court determination can be an “unreasonable application” of
clearly established law in two ways:

First, a state-court decision involves an unreasonable application of this
Court’s precedent if the state court identifies the correct governing legal rule
from this Court’s cases but unreasonably applies it to the facts of the particular
state prisoner’s case. Second, a state-court decision also involves an
unreasonable application of this Court’s precedent if the state court either
unreasonably extends a legal principle from our precedent to a new context
where it should not apply or unreasonably refuses to extend that principle to
a new context where it should apply.

Id. at 407; see Putman v. Head, 268 F.3d 1223 (11th Cir. 2001). Whether the application is
“reasonable” turns not on subjective factors, but on whether it was “objectively
unreasonable.” The question is not whether the state court “correctly” decided the issue, but
whether its determination was “reasonable,” even if incorrect.
The Supreme Court has explained that § 2254(d) requires that decisions by the state
courts “be given the benefit of the doubt,” and noted that “[r]eadiness to attribute error is
inconsistent with the presumption that state courts know and follow the law.” Holland v.
Jackson, 542 U.S. 649, 124 S. Ct. 2736, 2739, 159 L. Ed. 2d 683 (2004). Moreover, federal
courts are not permitted to substitute their own judgment for the judgment of the state court.
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The Eleventh Circuit Court of Appeals has noted that federal habeas relief is not available
“simply because that court concludes in its independent judgment that the state-court decision
applied [the governing legal principle] incorrectly.” Ventura v. Attorney General of the State
of Florida, 419 F.3d 1269, 1286 (11th Cir. 2005), quoting Woodford v. Visciotti, 537 U.S.
19, 24-25, 123 S. Ct. 357, 154 L. Ed. 2d 279 (2002). In Woodford, the Supreme Court stated
that “[a]n unreasonable application of federal law is different than an incorrect application
of federal law.” 537 U.S. 24-25. It has been noted that “[e]ven clear error, standing alone,
is not a ground for awarding habeas relief” under the “unreasonable application” standard
of § 2254(d). Stephens v. Hall, 407 F.3d 1195, 1202 (11th Cir. 2005), citing Lockyer v.
Andrade, 538 U.S. 63, 75, 123 S. Ct. 1166, 1175, 155 L. Ed. 2d 144 (2003).
Lack of Jurisdiction
The Petitioner expanded upon his jurisdictional argument in claim three by stating
that, once his sentence had been reduced from LWOP to life, the trial court lost jurisdiction
over the case and, therefore, could not rule on the State’s motion for reconsideration of the
sentence reduction. The Alabama Court of Criminal Appeals decided this aspect of
Petitioner’s jurisdictional argument in its opinion on his appeal of the denial of his motion
to alter, amend, or vacate the judgment regarding the conviction “in CC-86-442 [used] to
enhance Miller’s sentence.” (Doc. 6-6, p. 2).

Miller argues that the circuit court was without jurisdiction to entertain
the State’s motion for reconsideration that was filed the same day the circuit
court granted Miller relief from his conviction in CC-86-422. Specifically,
16

Miller contends that the circuit court lost jurisdiction to rule on the State’s
motion once the court informed Miller of his right to appeal. In Loggins v.
State, 910 So. 2d 146 (Ala. Crim. App. 2005), this court stated:
“It is well settled that a circuit court generally retains jurisdiction to
modify a judgment for only 30 days after the judgment is entered. See,
e.g., Ex parte Bishop, 883 So. 2d 262, 264 (Ala. Crim. App. 2003)
(‘According to established precedent, a trial court retains jurisdiction
to modify a ruling for 30 days.’). This general rule applies to Rule 32
petitions. See Henderson v. State, 933 So. 3d 395 (Ala. Crim. App.
2004).”
The State filed its motion to reconsider on the same day the circuit court
granted relief in CC-86-422. That same day, the circuit court granted the
State’s motion for reconsideration, rescinded its sentencing order in CC-981363, and set the matter for a hearing a week later. Accordingly, the circuit
court had jurisdiction to modify its sentencing order from May 6, 2005.

(Doc. 6-6, pp. 6-7). This aspect of the Petitioner’s jurisdictional argument has been
adjudicated on the merits in state court. Petitioner has not shown that the Alabama Court of
Criminal Appeals’ decision was contrary to, or involved an unreasonable application of,
clearly established Federal law. Accordingly, the state court’s determination is due deference
under § 2254(d), and claim three is due to be denied and dismissed with prejudice.
Double Jeopardy
The Petitioner argues in claim four that the reinstatement of his LWOP sentence in
April 2009 violated his right under the Fifth Amendment to be free from double jeopardy.
Petitioner’s claim fails because it is procedurally defaulted. Miller brought his double
jeopardy claim in a motion to alter, amend, or vacate judgment, which was addressed on the
merits by the Alabama Court of Criminal Appeals as follows:
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Miller also argues that the circuit court erred in resentencing him to a
sentence of life without parole after it initially reduced his sentence to two
concurrent terms of life imprisonment. Miller alleges that the imposition of
his original sentence of life imprisonment without parole constituted an
enhancement of his sentence, and thus, violated double jeopardy principles.
Miller also argues that the State failed to properly notify him of its intent to
seek enhancement pursuant to the HFOA.
In Barr v. State, 4 So. 3d 578 (Ala. Crim. App. 2008), this court
addressed a similar situation in which a petitioner sentenced pursuant to the
Habitual Felony Offender Act (“HFOA”), § 13A-5-9, Ala. Code 1975,
obtained Rule 32 relief from a conviction that was used to enhance his
sentence under the HFOA. In addressing the question whether, during a
second sentencing hearing, the State could present evidence of other prior
convictions not used to enhance the original sentence or not presented during
the first sentencing hearing, this court explained:
“We note that Barr may again be sentenced under the HFOA at
the second sentencing hearing if the State gives proper notice to Barr
of its intent to invoke the HFOA and of the prior convictions on which
it intends to rely. We note further that the State is not limited at a
second sentencing hearing to only the two surviving convictions on
which it originally relied, but it may also attempt to prove any
additional prior felony convictions of which it is aware.
“‘As this Court noted in Clements v. State, 709 So. 2d 1321 (Ala. Crim.
App. 1997):
“‘ “In Nichols v. State, 629 So. 2d 51 (Ala. Cr. App.
1993), this court stated that if resentencing was required, the
defendant was entitled to be renotified of the State’s intent to
proceed under the HFOA and renotified of the convictions it
intends to prove.
“‘ “‘To enhance a defendant’s sentence under the
HFOA, the State must give proper notice of its intent to
do so. The State must also give the defendant proper
notice of the alleged previous felony convictions that it
will attempt to prove at that sentencing hearing. If, for
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whatever reason, another sentencing hearing is required
and the State had notified the defendant of its intent to
proceed under the HFOA at the previous sentencing
hearing, then the State can re-notify the defendant that it
will attempt to prove all previous felony convictions that
the State is aware of, regardless of whether the State had
attempted to prove those particular convictions at the
previous sentencing hearing.”’”
“‘ “Nichols v. State, 629 So. 2d 51, 57 (Ala. Cr. App.
1993)(quoting Connolly v. State, 602 So. 2d 452, 455 (Ala.
1992) (some emphasis [in Connolly]; some emphasis [in
Clements])).
“‘ “‘ The rule is that the state may use, at a second
sentencing hearing, convictions other than those used at
the first hearing, provided that proper notice has been
given prior to both hearings. Connolly v. State, 602 So.
2d 452 (Ala. 1992); Jackson v. State, 556 So. 2d 758
(Ala. 1990). See also A.R.Cr.P. 26.6(b)(3)(ii). “This
requires only that the defendant be notified before each
sentencing hearing that the HFOA [Habitual Felony
Offender Act] will be applied and what convictions the
State will attempt to prove.” Connolly v. State, 602 So.
2d at 454 (emphasis added [in Cooper]),’
“‘ “Cooper v. State, 632 So. 2d 1342, 1343-44 (Ala. Cr. App.
1993), aff’d 632 So. 2d 1344 (Ala. 1994) (‘The record in this
case shows that the appellant was not given notice, prior to the
third sentencing hearing, of the convictions the state intended to
prove. At the hearing, the appellant made numerous and timely
objections to the failure to give notice.’).”
“‘ 709 So. 2d at 1323.’
“Perry v. State, 861 So. 2d 1, 3-4 (Ala. Crim. App. 2002) (some
emphasis added). Thus, at Barr’s second sentencing hearing, provided
the State satisfies the notice requirement in Rule 26.6(b)(3)(ii), Ala. R.
Crim. P. and its burden of proof in Rule 26.6(b)(3)(iii), Ala. R. Crim.
P., the State may seek to enhance Barr’s sentence under the HFOA with
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not only the assault and manslaughter convictions which were relied
upon at Barr’s first sentencing hearing, but also the unlawfulpossession-of-a-controlled-substance conviction, which was not relied
on at the first sentencing hearing, and with any other prior felony
convictions of which it is aware.”
4 So. 3d at 582-83.
Here, the State properly gave Miller notice of its intent to use all the prior
convictions of which it was aware in order to enhance his sentence under the
HFOA. The record indicates that the State gave notice of its intent to seek
enhancement on May 6, 2005, the same day the circuit court rescinded its
sentencing order in CC-98-1363, (C. 23, 26), and the notice was also served
on Miller’s counsel on May 13, 2005, the day of the sentencing hearing. (C.
47.) The circuit court took notice of Miller’s two remaining convictions for
first-degree receiving stolen property and previously unrecognized convictions
for first-degree robbery and first-degree burglary. Accordingly, the circuit
court properly sentenced Miller to life imprisonment without possibility of
parole. See, § 13A-5-9(c)(4), Ala. Code 1975.

(Doc. 6-6, pp. 7-11). The Petitioner has not shown that the decision is contrary to, or
involved an unreasonable application of, clearly established federal law. Indeed, as the
magistrate judge pointed out, the United States Supreme Court has upheld the use of
substitute felony convicitons to replace prior convictions vacated in subsequent proceedings.
Where the evidence originally offered to support an habitual-offender enhanced sentence was
sufficient to do so, the court may later substitute a replacement conviction for one invalidated
in subsequent proceedings. See Lockhart v. Nelson, 488 U.S. 33, 42, 109 S. Ct. 285, 291, 102
L. Ed. 2d 265 (1988) (“Had the defendant offered evidence at the sentencing hearing to prove
that the conviction had become a nullity by reason of the pardon, the trial judge would
presumably have allowed the prosecutor an opportunity to offer evidence of another prior
20

conviction to support the habitual offender charge.”). The resolution of the claim by the state
court was not contrary to Supreme Court precedent. Accordingly, count four is due to be
denied and dismissed with prejudice.
Failure to Prove
In claim eight, the Petitioner argues that the prosecution failed to prove the three prior
felony convictions used to reinstate his LWOP sentence. This claim also was adjudicated
fully in state court and addressed by the Alabama Court of Criminal Appeals in its opinion
affirming the dismissal of the Petitioner’s May 2011 Rule 32 petition:

Last, Miller contends that at the February 2009 resentencing hearing the
State failed to prove the existence of three prior felony convictions (Issues V
and VI in Miller’s brief), and failed to prove that the conduct underlying his
prior Tennessee conviction would have constituted a felony if committed in
Alabama (Issue VII in Miller’s brief). These specific claims, however, were
not raised in Miller’s petition. It is well settled that “[a]n appellant cannot
raise an issue on appeal from the denial of a Rule 32 petition which was not
raised in the Rule 32 petition.” Arrington v. State, 716 So. 2d 237, 239 (Ala.
Crim. App. 1997). Additionally, these claims are not jurisdictional but are
evidentiary challenges to the State’s proof and, therefore, cannot be raised for
the first time on appeal. See Ex parte Batey, 958 So. 2d 339, 341 (Ala. 2006)
(“[T]he failure to prove a prior conviction is not a jurisdictional matter.”).
Because Miller did not raise these claims in his petition, they are not properly
before this Court for review.
We note that with respect to Miller’s claim that the State failed to prove
that the conduct underlying his prior conviction from Tennessee would have
constituted a felony if committed in Alabama, nowhere in his brief does Miller
specifically allege that the conduct underlying that conviction would not have,
in fact, been a felony if committed in Alabama, a claim that would be
jurisdictional. See, e.g., McNeal v. State, 43 So. 2d 628, 629 (Ala. Crim. App.
2008); and Steele v. State, 911 So. 2d 21, 31 (Ala. Crim. App. 2004). His only
challenge is that the State failed to prove that the conduct underlying the
21

conviction would have constituted a felony if committed in Alabama.
Nonetheless, out of an abundance of caution, we have thoroughly reviewed the
record in case no. CR-08-1143, including the State’s proof of the prior
Tennessee conviction and it is clear that the conduct underlying Miller’s
Tennessee conviction would, in fact, have been a felony if committed in
Alabama.
The certified copy of Miller’s Tennessee conviction states that Miller
was indicted for “Attempted Theft over $1000.00,” i.e., the attempted theft of
property valued at over $1000, and that he was ultimately convicted of
“Attempted Theft.” (Record in case no. CR-08-1143, C. 66.) No value of
property is specifically listed for the conviction. However, the certified copy
also reflects that the indicted offense was a Class D felony in Tennessee, and
that the offense of which Miller was found guilty was also a Class D felony in
Tennessee.
At the time Miller committed the offense of attempted theft in
Tennessee in 1994, Tenn. Code Ann. § 39-14-105 provided3 that the theft of
property or services valued at more than $1000 but less than $10,000 was a
Class D felony. Thus it is clear that $1000 was the cutoff point between the
classes of theft. Because the certified copy of the conviction specifically states
that the offense for which Miller was indicted and the offense of which Miller
was convicted were both Class D felonies, it is clear to us that Miller was
convicted of the offense for which he was indicted – the attempted theft of
property valued at over $1000.
Rule 26.6(b)(3)(iv), Ala. R. Crim. P., provides:
“Any conviction in any jurisdiction, including Alabama, shall be
considered and determined to be a felony conviction if the conduct
made the basis of that conviction constitutes a felony under Act 607, §
130(4), Acts of Alabama 1977, p. 812 (§ 13A-1-2(4), Alabama
Criminal Code), or would have constituted a felony under that section
had the conduct taken place in Alabama on or after January 1, 1980;
and further, a conviction of a crime against the United States shall be
considered to be a felony conviction if that crime is punishable by
imprisonment in excess of one (1) year under federal law, and was so
punishable at the time of its commission, even if the conduct made the
basis of that conviction would not be punishable under Alabama law.”

22

On January 1, 1980, § 13A-8-3(1), Ala. Code 1975,4 provided that “[t]he theft
of property which exceeds $1,000.00 in value, or property of any value taken
from the person of another, constitutes theft of property in the first degree.”
Section 13A-8-3(c), Ala. Code 1975, both in 1980 and currently, provides that
the attempt to commit a Class B felony is considered a Class C felony. Thus,
the attempted theft of property valued at over $1000 would be a Class C felony
if committed in Alabama. Clearly then, the conduct underlying Miller’s prior
Tennessee conviction – the attempted theft of property valued at over $1000
– would have constituted a felony if committed in Alabama and was properly
used to enhance Miller’s sentence under the HFOA.
__________
That section was amended effective July 1, 2012. See 2012 Tenn. Pub. Acts,
c. 1080, § 1.

3

4

Section 13A-8-3, Ala. Code 1975, was subsequently amended in 2003 and
again in 2006. See Act. No. 2003-355, Ala. Acts 2003 and Act No. 2006-561,
Ala. Acts 2006.

This claim that the State failed to prove the prior felonies used for enhancement does
not warrant habeas relief for several reasons. First, it raises only a state-law claim relating
to the evidence necessary to prove the enhancement. Second, it is procedurally defaulted
because it was not raised in the appeal immediately following the resentencing. Third,
Petitioner has not shown the decision to be contrary to or an unreasonable application of
clearly established Supreme Court law. Accordingly claim eight also is due to be denied and
dismissed with prejudice.
Ex Post Facto Law
In claim nine, the Petitioner alleges that he originally was sentenced under Alabama
Code § 13A-5-9(c)(3), but when his sentence was reinstated in 2009, it was based on
23

Alabama Code § 13A-5-9(c)(4),which did not become effective until 2000. Petitioner argues
in his objections to the Report and Recommendation that the use of § 13A-5-9(c)(4) violated
the Ex Post Facto Clause of the United States Constitution, rendering his sentence illegal.
The Alabama Court of Criminal Appeals addressed the Petitioner’s argument as follows:

As best we can discern, Miller alleged in his May 2011 petition and
amendments that the trial court lacked jurisdiction in February 2009 to
resentence him to life imprisonment without the possibility of parole and that
those sentences exceeded the maximum authorized by law because, he said: (1)
the trial court’s resentencing was based on § 13A-5-9(c)(4), Ala. Code 1975,
which was not in effect at the time he committed the offenses, and, thus,
application of that statute violated the Ex Post Facto Clause of the United
States Constitution;
...
Miller is correct that “the law in effect at the time of the commission of
the offense controls the prosecution.” Minnifield v. State, 941 So. 2d 1000,
1001 (Ala. Crim. App. 2005). Likewise, “‘[a] defendant’s sentence is
determined by the law in effect at the time of the commission of the offense.’”
Nelson v. State, 28 So. 3d 816, 818 (Ala. Crim. App. 2009) (quoting Davis v.
State, 571 So. 2d 1287, 1289 (Ala. Crim. App. 1990)). Miller is also correct
that at the February 2009 resentencing hearing and in its April 2009
resentencing order, the circuit court relied on § 13A-5-9(c)(4), Ala. Code
1975, in resentencing Miller, noting that § 13A-5-9(c)(4) required sentences
of life imprisonment without the possibility of parole because one of Miller’s
prior convictions had been a Class A felony. However, Miller was originally
convicted in 1999 for crimes he committed in 1997. Section 13A-5-9(c)(4)
was not added to the Habitual Felony Offender Act (“HFOA”) until May 25,
2000, after Miller’s offenses occurred. See Act No. 2000-759, Ala. Acts 2000.
Therefore, the circuit court erred in relying on § 13A-5-9(c)(4) in resentencing
Miller.
This error, however, was harmless under the circumstances in this case.
At the 2009 resentencing, Miller was sentenced using three prior felony

24

convictions. Before the 2000 amendment to the HFOA, § 13A-5-9(c)(3), Ala.
Code 1975, provided:
“(c) In all cases when it is shown that a criminal defendant has
been previously convicted of any three felonies and after such
convictions has committed another felony, he must be punished as
follows:
“. . . .
“(3) On conviction of a Class A felony, he must be
punished by imprisonment for life without parole.”
Clearly, Miller’s sentences of life imprisonment without the possibility of
parole were required by the law in effect at the time he committed the crimes.
Therefore, the circuit court’s error in relying on current § 13A-5-9(c)(4)
instead of former § 13A-5-9(c)(3) had no effect on the sentences Miller
received. Under these circumstances, we conclude that Miller is not entitled
to relief on this ground.

(Doc. 23-1, pp. 4, 6-7).
In this case, the Petitioner has not demonstrated that any of the above claims resulted
in a decision that was contrary to, or involved an unreasonable application of, clearly
established Supreme Court law, or that the decision was based on an unreasonable
determination of the facts in light of the evidence presented in the state-court proceeding.
Thus, claims three, four, eight, and nine, as set out above, are due to be denied and dismissed
with prejudice.

25

Claims Never Raised in State Court
Due Process
The Petitioner contends in claim seven that the reinstatement of his LWOP sentence
violated his right to procedural due process. This claim, however, is procedurally barred.
The Petitioner has not brought a claim in state court alleging a violation of his due process
rights. When a habeas claim has never been presented to a state court and there no longer
exists any remedial vehicle by which the state courts may consider the claim, the United
States Supreme Court has held that it is procedurally defaulted. Teague v. Lane, 489 U.S.
288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989). The Court is not required to dismiss the
claims as unexhausted because the defaults are apparent and it would be futile to send the
petitioner back to state court only to be faced with them. See Collier v. Jones, 910 F.2d 770
(11th Cir. 1990); Whiddon v. Dugger, 894 F.2d 1266 (11th Cir. 1990). Consequently, under
the authority of Teague, the Petitioner is procedurally barred from raising his Due Process
claim absent a showing of adequate cause and prejudice for failing to raise the issue on
appeal or in a properly filed Rule 32 petition. See Whiddon v. Dugger, 894 F.2d 1266 (11th
Cir. 1990).
The time for filing a direct appeal has long expired, and the Petitioner cannot bring
the claim through a Rule 32 petition because he waived the claim by failing to raise it at trial
or in a direct appeal as mandated by Rule 32.2(a)(3) and (5). Accordingly, the claims have
not been properly exhausted, and now are procedurally defaulted. If a petitioner has

26

procedurally defaulted on a constitutional claim, he is barred from litigating it in a federal
habeas corpus proceeding unless he can show adequate “cause” for and “actual prejudice”
from the default. Wilson v. Jones, 902 F.2d 923, 25 (11th Cir. 1990); Engle v. Isaac, 456
U.S. 107, 102 S. Ct. 1558, 71 L. Ed. 2d 783 (1982); Wainwright v. Sykes, 433 U.S. 71, 97
S. Ct. 2497, 53 L. Ed. 2d 594 (1977). The “cause and prejudice” test of Engle v. Isaac and
Wainwright v. Sykes is in the conjunctive; therefore, the petitioner must prove both cause
and prejudice. The United States Supreme Court summarized the “cause” standard in the
following manner:

In Wainwright v. Sykes, 433 U.S. 72 (1977), this Court adopted the “cause and
prejudice” requirement of Francis v. Henderson, supra, for all petitioners
seeking federal habeas relief on constitutional claims defaulted in state court.
The Sykes Court did not elaborate upon this requirement, but rather left open
“for resolution in future decisions the precise definition of the ‘cause-andprejudice’ standard.” 433 U.S. at 87. Although more recent decisions likewise
have not attempted to establish conclusively the contours of the standard, they
offer some helpful guidance on the question of cause. In Reed v. Ross, 468
U.S. 1 (1984), the Court explained that although a “tactical” or “intentional”
decision to forgo a procedural opportunity normally cannot constitute cause,
id. At 13-14, “the failure of counsel to raise a constitutional issue reasonably
unknown to him is one situation in which the [cause] requirement is met.” Id.
at 14. The Court later elaborated upon Ross and stated that “the existence of
cause for a procedural default must ordinarily turn on whether the prisoner can
show that some objective factor external to the defense impeded counsel’s
efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477
U.S. 478, 488 (1986). We explained that “a showing that the factual or legal
basis for a claim was not reasonably available to counsel, . . . would constitute
cause under this standard.” Ibid. (Citations omitted.)

Amadeo v. Zant, 486 U.S. 214, 221-22, 108 S. Ct. 1771, 100 L. Ed. 2d 249 (1988).

27

The petitioner also must demonstrate that he was prejudiced; he must show “not
merely that the errors . . . created a possibility of prejudice, but that they worked to his actual
and substantial disadvantage, infecting his entire trial with error of constitutional
dimensions.” United States v. Frady, 456 U.S. 152, 170, 102 S. Ct. 1584, 71 L. Ed. 2d 816
(1982)(emphasis in original). A federal habeas court, however, will consider a procedurally
defaulted claim in the absence of cause if a “fundamental miscarriage of justice” has
“probably resulted in the conviction of one who is actually innocent.” Smith v. Murray, 477
U.S. 527, 537-38, 106 S. Ct. 2661, 91 L. Ed. 2d 434 (1986) (quoting, respectively, Engle,
456 U.S. at 135, and Murray, 477 U.S. at 496). In the instant action, the Petitioner has not
shown “cause and prejudice” excusing the procedural default, nor has he made a showing of
factual innocence so that the claims can be considered under the “fundamental miscarriage
of justice” exception to procedural default. Accordingly, count seven is due to be denied and
dismissed with prejudice.

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CONCLUSION
For the reasons set out above, the petition for writ of habeas corpus under 28 U.S.C.
§ 2254 is due to be DENIED and DISMISSED WITH PREJUDICE. A final order will be
entered contemporaneously herewith.
DONE this 29th day of July, 2014.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

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