Smith v. Bolling

Filing 11

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 12/18/2018. (AFS)

FILED
2018 Dec-18 PM 04:53
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
WILBERT JAMES SMITH,
Petitioner,
v.
WARDEN LEON BOLLING,
Respondent.

)
)
)
)
)
)
)
)
)

Case No.: 5:16-cv-01818-AKK-JHE

MEMORANDUM OPINION
This is an action for a writ of habeas corpus action filed by petitioner
Wilbert James Smith, pro se. Doc. 1. Smith challenges his 2013 conviction in
Madison County Circuit Court on three counts of capital murder. Id. at 2. On
November 16, 2018, the magistrate judge entered a report and recommendation
pursuant to 28 U.S.C. § 636(b), recommending that habeas relief be denied. Doc.
7. Smith filed timely objections to the report and recommendation. Doc. 10.
Each of Smith’s objections is based on his belief that he was denied effective
assistance of counsel. To establish ineffective assistance of counsel, a petitioner
must demonstrate that his trial attorney’s performance fell below an objective
standard of reasonableness, and that there is a reasonable probability that the result
of the trial would have been different but for the deficiency.
Washington, 466 U.S. 668, 687-92 (1984).

Strickland v.

The Supreme Court observed

“Strickland’s first prong sets a high bar. A defense lawyer navigating a criminal
proceeding faces any number of choices about how best to make a client’s case.
The lawyer has discharged his constitutional responsibility so long as his decisions
fall within the ‘wide range of professionally competent assistance.’ It is only when
the lawyer’s errors were ‘so serious that counsel was not functioning as the counsel
guaranteed . . . by the Sixth Amendment’ that Strickland’s first prong is satisfied.”
Buck v. Davis, 580 U.S. ––, 137 S.Ct. 759, 775 (2017) (internal citations omitted).
Review of claims of ineffective assistance of counsel under AEDPA are “doubly
deferential,” Cullen v. Pinholster, 563 U.S. 170, 190 (2011), because counsel is
“strongly presumed to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment,” Burt v. Titlow, 571
U.S. 12, 22 (2013) (quoting Strickland, 466 U.S. at 690; internal quotation marks
omitted).
This court must follow the two-step process in applying § 2254(d) set forth
in Harrington v. Richter, 562 U.S. 86, 102 (2011). Ray v. Alabama Dep’t of Corr.,
809 F.3d 1202, 1209 (11th Cir. 2016), cert. denied, 137 S.Ct. 417 (2016). First,
the court must “determine what arguments or theories support . . . the state court’s
decision;” then the court must consider “whether it is possible fairminded jurists
could disagree that those arguments or theories are inconsistent with the holding in
a prior decision of th[e] [Supreme] Court.” Ray, 809 F.3d at 1209 (alterations in
2

original, citations omitted). When the last state court to decide a prisoner’s federal
claim explains its decision on the merits in a reasoned opinion, a federal habeas
court simply reviews the specific reasons given by the state court and defers to
those reasons if they are reasonable. Wilson v. Sellers, __ U.S. __, 138 S.Ct. 1188,
1192 (2018). When that state court’s decision does not explicitly state those
reasons, the federal court must “look through” the unexplained decision to the last
related state court decision that does provide a rationale and presume the
unexplained decision adopted that rationale. Id. Thus, this court considers the
petitioner’s claims in light of the Alabama Court of Criminal Appeals decision.
Smith first objects to the report and recommendation on his claim that trial
counsel was ineffective for failing to object to expert witness testimony about
DNA population frequency statistics. Doc. 10 at 4. Specifically, Smith claims his
attorney should have “objected to the testimony of State witness Crystal Kissel,
DNA expert, and asked her how she had calculated and/or arrived at this enormous
phantom number [of one in fifty quadrillion]” because this evidence was
prejudicial to him. Id. at 5-6. According to Smith, because “there has never
existed fifty quadrillion unrelated African Americans . . . [s]uch theory is error and
could never be reliable . . . ,” id. at 6, and, therefore, his attorney erred by not
objecting to this testimony. At trial, Crystal Kissel, a scientist with the Alabama
Department of Forsensic Sciences, testified that DNA testing from the crime scene
3

yielded results which did not match either of the victims. Those unknown samples
were run through a database to search for matches. Doc. 5-7 at 71. That database
search revealed the petitioner as a match for the samples. Id., at 77.

Lily S.

Harper, also a scientist with the Alabama Department of Forensic Sciences,
testified that she analyzed the known sample of DNA taken from Smith, that DNA
recovered from the crime scene was a match to Smith, and that the combination of
genetic traits in the recovered DNA would occcur in approximately 1.1 quadrillion
random unrelated African American individuals.1 Doc. 5-7 at 101, 103. Smith’s
argument that because “there has never existed fifty quadrillion unrelated African
1

As recently explained by the Eleventh Circuit,
DNA is a complex molecule that contains the biological coding of human traits.
Within a typical human cell, DNA is wrapped tightly into forty-six chromosomes
forming twenty-three pairs. Physical locations (known to scientists as “loci”) on
one chromosome correspond with physical locations on its paired chromosome;
for each locus on a chromosome that influences an attribute, there is a related
locus on its paired chromosome that also influences the attribute. The DNA found
at these loci are called “alleles,” and alleles, like chromosomes, come in pairs.
While more than 99% of DNA is identical from person to person, scientists have
determined that certain alleles are highly variable between individuals, and have
likewise determined the statistical probability of finding those alleles in the
greater population. Forensic DNA analysis focuses on these loci and alleles
known to vary widely: when a profile of such alleles from a known person is
compared to a profile of alleles from an unknown DNA sample, statistical
analysis can determine the frequency with which a sample from a random
member of the general population would also be a match.

United States v. Barton, 2018 WL 6374201, at *2 (11th Cir. Dec. 6, 2018). Thus, the one in 1.1
quadrillion statistic means the chances of one person randomly selected from the population as a
whole matching the characteristics of the DNA found here are one in 1.1 quadrillion. Nothing in
this statistic actually requires 1.1 quadrillion people to be tested. Or, as the expert in the trial
court explained, the population frequency is another way of “saying how many popele would
you have to have in a room in order to find two people with that exact same match.” Doc. 5-7 at
64.
4

Americans . . . [s]uch theory is error and could never be reliable,” doc. 10 at 6 is
based on a misunderstanding of statistical probability. He does not provide any
basis to find the state court’s decision was based on an error of constitutional law
so grave reasonable minds could not agree that it was correct. See e.g, Harrington,
562 U.S. at 103; Wilson v. Warden, Georgia Diag. Prison, 898 F.3d 1314, 1321
(11th Cir. 2018).
Smith next objects that counsel was ineffective for failing to object to the
prosecutor questioning a witness as to whether Smith made a statement after his
arrest. Doc. 10 at 7. The record extablished that Smith’s counsel did object to
questions by the prosecutor along this line, and that the trial court gave a curative
instruction. Doc. 5-8 at 79-83. Relying on Greer v. Miller, 483 U.S. 756 (1987),
the magistrate judge reasoned that trial counsel’s immediate objection, combined
with the trial court’s curative instruction, prevented any constitutional error from
occurring. Doc. 7 at 16. Therefore, the Alabama Court of Criminal Appeals’
determination that this claim was “meritless” because no testimony concerning the
petitioner’s post-arrest silence occurred, doc. 5-20 at 12, was not a ruling upon
which fairminded jurists could disagree.

Smith’s objection based on his

disagreement with the law does not alter this analysis.
Smith’s third objection attacks the magistrate judge’s finding that trial
counsel was not ineffective in failing to object to the trial court’s supplemental jury
5

instruction on accomplice liability. Doc. 10 at 9. At trial, the jury returned twice
to the courtroom with questions regarding the jury instruction on accomplice
liability. Doc. 5-9 at 59-67, 69-74. Relying on § 12-21-222, Alabama Code 1975,
as amended, Smith argues that the trial court deprived him of a correct statement of
law, and therefore the Alabama Court of Criminal Appeals erred in its
determination that his counsel was not deficient. Doc. 10 at 9-10. The Alabama
appellate court noted the jury instruction given on accomplice liability mirrored
that in the Alabama Pattern Jury Instructions, doc. 5-20 at 14, and found that “no
evidence . . . support[ed] the assertion that Smith procured or induced another into
committing the offense . . . . Consequently, trial ‘[c]ounsel is not ineffective for
failing to raise a baseless claim.’” Id. (citations omitted). The petitioner fails to
demonstrate this state court decision applied law contrary to that established by the
Supreme Court, or applied the law in an objectively unreasonable manner. See
e.g., Williams v. Taylor, 529 U.S. 362, 412-13 (2000).
Smith objects to the finding that trial counsel did not err in not objecting to
the trial court excusing a potential juror. Doc. 10 at 10. This objection challenges
the trial court’s decision to excuse three potential jurors from the venire: a juror
who had a nephew who had been murdered recently, a juror who suffered from
anxiety, and a juror who failed to return after a break. Id. at 11. While Smith
contends that his trial counsel acted ineffectively in agreeing to the release of these
6

venire members, Smith fails to provide any evidence as to how this was error by
counsel.
Considering this claim on its merits, the Alabama Court of Criminal Appeals
held
Smith has not alleged any facts that, if true, would establish that his
counsel’s performance was deficient or could not have been justified
as a strategic decision. Strickland, 44 U.S. at 689. Further, Smith
also failed to plead any facts that, if true, would demonstrate that there
is a reasonable probability that, but for his trial counsel’s failure to
object to the trial court’s excusal of prospective jurors P.H. and K.R.,
the result of his trial would have been different. Id. See also Boyd v.
State, 913 So. 2d 1113, 1133 (Ala.Crim.App. 2003) (holding that a
bare assertion of the appellant’s subjective opinion that counsel
should have performed differently is insufficient to satisfy the
pleading requirements of Rule 32.6(b), Ala. R. Crim. P.).
Doc. 5-20 at 15. This decision was neither contrary to, nor an unreasonable
application of clearly established federal law, and it was not based on an
unreasonable determination of the facts in light of the evidence presented. As
noted by the magistrate judge, strategic decisions by counsel in selecting a jury
only provide a basis for a claim of ineffective assistance of counsel where
“counsel’s decision is . . . so ill-chosen that it permeates the entire trial with
obvious unfairness.” Doc. 7 at 20 (quoting Hughes v. United States, 258 F.3d 453,
457 (6th Cir. 2001).
Finally, Smith objects to the magistrate judge’s finding that trial counsel was
not ineffective for not objecting to the withholding of exculpatory evidence. Doc.
7

10 at 12. The evidence in question is the fingerprints of other individuals who
were in the home where the murders occurred. According to Smith, he could have
used this evidence to demonstrate that other individuals committed the murders.
Id. at 13. The Alabama Court of Criminal Appeals rejected this argument, holding
that Smith “failed to plead any facts indicating how this evidence was exculpatory,
favorable, or material.” Doc. 5-20 at 19. The court finds nothing in this statement
“involved an unreasonable application of . . . clearly established Federal law . . . .”
Nevada v. Jackson, 569 U.S. 505, 508 (2013) (quoting 28 U.S.C. § 2254(d)(1)). It
certaininly does not reflect an error of existing law so well understood that it is
“beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562
U.S. at 103.
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 thereto, the magistrate judge’s findings are due to be and are
hereby ADOPTED, and his 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, because the

petition does not present issues that are debatable among jurists of reason, a
certificate of appealability is also due to be DENIED. See 28 U.S.C. § 2253(c);

8

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 the 18th day of December, 2018.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

9