Darby v. Jones et al
MEMORANDUM OPINION-re: R&R 33 . The court hereby adopts and approves the findings and recommendation of the magistrate judge as the findings and conclusions of the court. Signed by Judge Robert B Propst on 3/20/2013. (AVC)
2013 Mar-20 AM 11:53
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
ELVIN EARL DARBY,
WARDEN KENNETH JONES and
THE ATTORNEY GENERAL FOR
THE STATE OF ALABAMA,
This is a habeas corpus petition. The magistrate judge entered a report and
recommendation, recommending that the action be dismissed because Darby’s only claim1
does not state a claim of constitutional magnitude because it relates only to alleged errors of
the trial court during his first Rule 32 proceedings. Objections have been filed.
In his objections, Darby alleges that “this is not what Darby is claiming.” He then sets
out five pages of “grounds” he claims to be raising in his petition. To the extent Darby’s
In his amended petition, the petitioner raised a single claim:
Circuit Court of Tuscaloosa County misinterpreted the evidence and issued
a ruling based on the misinterpreted evidence and failed to make a specific finding of
facts on all issues before the court. By misinterpreting the evidence presented at the
evidentiary hearing concerning newly discovered evidence and failing to address the
ineffective assistance of counsel and other claims the court corrupted the petitioner’s
ability to exhaust state remedies.
The claim, as set out in the report and recommendation, was quoted verbatim from the amended
petition. Court Document 24 at page 5 of 8.
newly stated grounds concern further deficiencies in the first Rule 32 proceedings, he is still
not entitled to habeas relief on such claims as discussed in the report and recommendation.
See Quince v. Crosby, 360 F.3d 1259, 1261-1262 (11th Cir. 2004).
The remainder of the new grounds raised in the objections are barred by procedural
default. To the extent Darby might have raised these claims in his Rule 32 petition, the
claims are procedurally barred because he failed to present the claims to the Alabama
Supreme Court for review as required by O’Sullivan v. Boerckel, 119 S. Ct. 1728, 1732-33
(1999). “Section 2254(c) provides that a habeas petitioner ‘shall not be deemed to have
exhausted the remedies available in the courts of the State . . . if he has the right under the
law of the State to raise, by any available procedure, the question presented.’” Boerckel, 119
S. Ct. at 1732. To exhaust state court remedies, federal habeas corpus petitioners need only
provide the “state courts a fair opportunity to act on their claims.” Id. The Boerckel Court
held that in order to satisfy the exhaustion requirement for bringing a habeas corpus petition,
the petitioner was required to present his claims to the state supreme court for discretionary
review when that review is part of the ordinary review procedure in the state. Id. at 1733.
The Eleventh Circuit Court of Appeals has indicated that “there is no doubt that
Alabama’s discretionary review procedures bring Alabama prisoner habeas petitions within
the scope of the Boerckel rule.” Smith v. Jones, 256 F.3d 1135, 1140 (11th Cir. 2001).
The Alabama Supreme Court’s certiorari review rule gives that court broad
discretion over the issues it will review. Among other grounds, certiorari
review can be granted to decide issues of first impression; to decide whether an
Alabama Supreme Court decision relied upon by the Court of Criminal Appeals
ought to be overruled; and to determine whether the Court of Criminal
Appeals’ decision conflicted with prior decisions of the United States Supreme
Court, the Alabama Supreme Court, or the Court of Criminal Appeals itself.
FN5. Alabama Rule of Appellate Procedure 39(c), as in effect at
the time of Smith’s direct appeal, provided that:
In all other cases [except death penalty cases], civil or criminal,
petitions for writs of certiorari will be considered only:
(3) From decisions when a material question requiring decision
is one of first impression in Alabama;
(4) From decisions in conflict with prior decisions of the United
States Supreme Court, the Alabama Supreme Court, or the
Alabama courts of appeals; . . . and,
(5) Where petitioner seeks to have controlling [Alabama]
supreme court cases overruled which were followed in the
decision of the court of appeals.
Ala.R.App.P.39(c)(1990)(amended 2000). The rule has not been
changed in any respect relevant to the Boerckel rule since
Smith’s direct appeal.
Any federal law question would fit within one or more of those grounds for
certiorari review, and that is particularly true in light of the limitation on
federal habeas review now contained in 28 U.S.C. § 2254(d). Because the
scope of the Alabama Supreme Court’s discretionary review on direct appeal
is broader than that of the Illinois Supreme Court, which was the court whose
review procedures were involved in the Boerckel case itself, see 526 U.S. at
845-48, 119 S. Ct. at 1732-34, Alabama convictions and prisoners clearly come
within the scope of the Boerckel rule.
Id. at 1140-41. Additionally, the Eleventh Circuit Court of Appeals has held that the Boerckel
rule applies to a petitioner’s state collateral review process. Pruitt v. Jones, 348 F.3d 1355,
1359 (11th Cir. 2003).
Although Darby appealed the denial of his Rule 32 petition to the Alabama Court of
Criminal Appeals, then filed an application for rehearing after the denial of his petition was
affirmed, his “Motion for Leave to File Petition for Writ of Certoria” was not properly filed
with the Alabama Supreme Court, in that it failed to state any claims. Thus, to the extent any
of the claims Darby raises in his objections were raised in the Rule 32 proceedings, they are
now procedurally barred from review in this court because he failed to present the claims to
the Alabama Supreme Court for review as required by Boerckel.
Further, 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 (1989). Thus, to the extent any of the claims Darby now raises in his objections
were not raised in his Rule 32 proceedings, those claims are likewise barred by procedural
If a petitioner has procedurally defaulted on a constitutional claim, he is barred from
litigating that claim in a federal habeas corpus proceeding unless he can show adequate
“cause” for and “actual prejudice” from the default. Engle v. Isaac, 456 U.S. 107 (1982);
Wainwright v. Sykes, 433 U.S. 71 (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 to excuse a procedural default.
The United States Supreme Court summarized the “cause and prejudice” standard:
In Wainwright v. Sykes, 433 U.S. 72 (1977), this Court adopted the
“cause and prejudice” requirement of Francis v. Henderson, [425 U.S. 536
(1976)], 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’-and-’prejudice’ standard.” 433 U.S. at 87, 53 L. Ed.
2d 594, 97 S. Ct. 2497. 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,
82 L. Ed. 2d 1, 104 S. Ct. 2901 (1984), the Court explained that although a
“tactical” or “intentional” decision to forgo a procedural opportunity normally
cannot constitute cause, id., at 13-14, 82 L. Ed. 2d 1, 104 S. Ct. 2901, “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, 82 L. Ed. 2d
1, 104 S. Ct. 2901. 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.
Amadeo v. Zant, 486 U.S. 214, 221-22 (1988).
The petitioner must also 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 [the] entire trial with error of constitutional
dimensions.” (emphasis in original). United States v. Frady, 456 U.S. 152, 170 (1982). 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 (1986) (quoting,
respectively, Engle, 456 U.S. at 135, and Murray, 477 U.S. at 496).
Darby has offered nothing to excuse the procedural default of his claims. Thus, the
claims raised by the petitioner in his objections are due to be dismissed because they are
barred by procedural default.
The court has considered the entire file in this action, including the report and
recommendation and the petitioner’s objections to the report and recommendation, and has
reached an independent conclusion that the report and recommendation is due to be adopted
Accordingly, the court hereby adopts and approves the findings and recommendation
of the magistrate judge as the findings and conclusions of the court. This habeas petition is
due to be dismissed. An appropriate order will be entered.
Done this 20th day of March, 2013.
ROBERT B. PROPST
SENIOR UNITED STATES DISTRICT JUDGE
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