Fulwise v. Hetzel et al

Filing 32

MEMORANDUM OPINION Signed by Chief Judge Karon O Bowdre on 8/26/15. (SAC )

FILED
2015 Aug-26 PM 04:19
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
DERRICK WAYNE FULWISE,
Petitioner,
v.
GARY HETZEL, Warden,
and THE ATTORNEY GENERAL
OF THE STATE OF ALABAMA,
Respondents.

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Case No. 5:13-cv-01767-KOB-HGD

MEMORANDUM OPINION
On March 19, 2015, the magistrate judge entered his report and
recommendation and gave the parties fourteen days in which to file objections to the
recommendations. Petitioner obtained two extensions of time, to May 1, 2015, and
May 29, 2015, in which to file objections. The court did not receive any objections
from petitioner by May 29, 2015.
After the court entered its Memorandum Opinion and Final Judgment on June
25, 2015, petitioner filed a motion pursuant to Rule 60(b), Fed. R. Civ. P. With the
motion, petitioner included a copy of objections signed on May 7, 2015, and proof
that he delivered outgoing legal mail addressed to the clerk of court to prison
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authorities for mailing. The court, therefore, found that petitioner had timely filed
objections to the magistrate judge’s report and recommendation. The court granted
petitioner’s Rule 60(b) motion and vacated the Memorandum Opinion and Final
Judgment of June 25, 2015. (Doc. 30). In its Order, the court directed the Clerk to
file the objections attached to Rule 60(b) motion as a separate document (doc. 30),
and the Clerk did so on August 26, 2015 (doc. 31).
The underpinning for the petitioner’s objections appear to focus on the Rule
32 trial court’s summary dismissal order that failed to specify which procedural bars
supported its dismissal of the Rule 32 petition. What the petitioner ignores in his
objections is that the Rule 32 appellate court, conducting an independent review of
the record, set out in detail the specific reasons why the petitioner had not
sufficiently pled his basis for his claims under Rule 32.6(b) to raise any arguable
merit of those claims. (See doc. 12-6). Although the petitioner appears to assert that
the Rule 32 appellate court had no authority to raise the Rule 32.6(b) ground sua
sponte when the trial court failed to do so, he is simply wrong. (See doc. 12-6 at 7
(citing McNabb v. State, 991 So. 2d 313, 315 (Ala. Crim. App. 2007) for the
proposition that it “may sua sponte apply the specificity requirement contained in
Rule 32.6(b), Ala. R. Crim. P.”) As such, the court OVERRULES all of the
petitioner’s objections.
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After careful and de novo consideration of the record in this case, the
magistrate judge’s report and recommendation and petitioner’s objections, the court
hereby ADOPTS the report of the magistrate judge. The court further ACCEPTS the
recommendations of the magistrate judge that the petition for writ of habeas corpus
be denied.
Pursuant to Rule 11 of the Rules Governing § 2254 Cases, the court has
evaluated the claims within the petition for suitability for the issuance of a certificate
of appealability (COA). See 28 U.S.C. § 2253.
Rule 22(b) of the Federal Rules of Appellate Procedure provides that when an
appeal is taken by a petitioner, the district judge who rendered the judgment “shall”
either issue a COA or state the reasons why such a certificate should not issue.
Pursuant to 28 U.S.C. § 2253(c)(2), a COA may issue only when the petitioner “has
made a substantial showing of the denial of a constitutional right.” This showing can
be established by demonstrating that “reasonable jurists could debate whether (or for
that matter, agree that) the petition should have been resolved in a different manner”
or that the issues were “adequate to deserve encouragement to proceed further.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463 U.S.
880, 893 & n.4 (1983)). For procedural rulings, the court will issue a COA only if

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reasonable jurists could debate whether the petition states a valid claim of the denial
of a constitutional right and whether the court’s procedural ruling was correct. Id.
The court finds that reasonable jurists could not debate its resolution of the
claims presented in this habeas corpus petition. For the reasons stated in the
magistrate judge’s report and recommendation, the court DECLINES to issue a COA
with respect to any claims.
A separate order in conformity with this Memorandum Opinion will be entered
contemporaneously.
DONE and ORDERED this 26th day of August, 2015.

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KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE

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