Charest v. Mitchem

Filing 105

ORDER, Because the two components of Slack are not satisfied, a COA should not issue. Charest's motions for more briefing (Docs. 102 , 104 ) are DENIED. Additionally, the Court again concludes that in the alternative, the writ is due to be denied because Charest has abused the writ and it is time-barred. Signed by Judge Callie V. S. Granade on 8/31/2015. (Attachment: # 1 Appendix A) (copy to petitioner and Clerk of 11th Circuit Court of Appeals) (mab)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
PATRICK JOSEPH CHAREST,
Petitioner,
v.
BILLY MITCHEM,
Respondent.

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Civil Action No. 10-067-CG-C

ORDER
This matter is back before the Court following the Eleventh Circuit
Court of Appeals’ order vacating the certificate of appealability (“COA”) and
remanding this case for further consideration. (Doc. 101). The Eleventh
Circuit specifically directed this Court to “consider whether Charest has
made a substantial showing of the denial of a constitutional right, in
conformity with Slack.” (Doc. 101, p. 2). After careful consideration, the Court
concludes Charest has not made a substantial showing of the denial of a
constitutional right, and a COA should not issue.
BACKGROUND1
Patrick Joseph Charest is an Alabama prisoner in the custody of
respondent, Billy Mitchem. On March 14, 1995, a jury found Charest guilty of
first-degree rape, first-degree sodomy, and contributing to the delinquency of
a minor in the Circuit Court of Baldwin County, Alabama. (Appendix A, p. 15
This is an abbreviated background of this twenty-year-old case. The facts
and procedural history are thoroughly described in the magistrate judge’s
Report and Recommendation. (Doc. 63, pp. 1 – 33).
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– 19).2 The circuit court judge sentenced him in May 1995 to two consecutive
life terms for the rape and sodomy convictions, and one year for the
delinquency conviction. (Appendix A, pp. 6 – 10). The Court of Criminal
Appeals confirmed his convictions on direct appeal. Charest v. State, 682 So.
2d 528 (Ala. Civ. App. 2005).
After being convicted of these crimes, Charest filed his first Rule 32
petition in state court in February 1998. Charest v. State, 854 So. 2d 1102,
1103 (Ala. Crim. App. 2002) overruled by Ex parte Jenkins, 972 So. 2d 159
(Ala. 2005). The Circuit Court of Baldwin County denied that petition, but
the Court of Criminal Appeals remanded the petition and directed the circuit
court to address certain ineffective assistance of counsel claims. Id. at 1106.
Charest raised the basis of the present appeal – that the circuit court lacked
jurisdiction to hear the case because the crimes occurred in Florida, not
Alabama – in his initial Rule 32 petition. But as the Court of Criminal
Appeals recognized, he did not assert this argument on appeal. Charest v.
State, 854 So. 2d at 1105, n. 3 (“Those claims that Charest raised in his
petition, but did not assert on appeal, have been abandoned.”). After the
circuit court addressed the ineffective assistance of counsel claims on
Appendix A contains excerpts from the record of Charest’s first habeas case,
03-CV-283-CB-D, including portions of the 1995 state court trial transcript. A
hard copy of the entire trial transcript was filed as an exhibit during the
proceedings in Charest’s first habeas case, along with hard copies of
Charest’s post conviction motions, state responses, and state court orders.
(03-CV-283-CB-D, Docs. 5, 11). Appendix A contains copies of the original
record cited in this order to assist with reviewing this case.
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remand, the court again denied the Rule 32 petition. The Court of Criminal
Appeals affirmed that ruling. (Doc. 63, p. 17).
Charest next filed a petition for writ of habeas corpus in the Southern
District of Alabama on May 8, 2003. (Case 03-cv-283-CB-D). While that
petition was pending, Charest filed a second Rule 32 petition in the Circuit
Court of Baldwin County in February 2004. During circuit court hearings in
2005 related to that petition, Charest reached an agreement with the
prosecutor and the judge where his delinquency conviction was set aside and
his life sentences were ordered to run concurrently instead of consecutively as
originally imposed. (Doc. 59-1; Doc. 62-1, pp. 84 – 91; pp. 95 – 105). In
exchange for the sentence modification, Charest agreed to waive all pending
claims in his second Rule 32 petition, with the “exception of his issue of
whether the court had subject-matter jurisdiction over the actions
complained of,” because he alleged the crimes occurred in Florida, not
Alabama.3 (Doc. 62-1, p. 101).

This Court does not condone bargaining with criminal defendants by
offering sentence modifications in exchange for waiving legal claims.
Additionally, this Court notes the trial judge erroneously believed the Circuit
Court of Baldwin County did not have subject matter jurisdiction over
Charest’s misdemeanor charge and conviction. (Doc. 62-1, p. 100). This is
incorrect, as the grand jury indicted Charest on felony and misdemeanor
charges, bringing his entire case within the original jurisdiction of the Circuit
Court. A copy of the indictment is included in Appendix A. See Appendix A,
pp. 12 – 13. See also Ex parte City of Tuscaloosa, 636 So. 2d 692, 694 (Ala.
Crim. App. 1993) (explaining that Alabama law provides “all misdemeanor
and ordinance violations which arise from the same incident as the felony
charge are within the exclusive original jurisdiction of the circuit court”); Ala.
Code § 12-11-30; Ala. Code § 12-12-32(a)(2).
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Also in 2005, the Southern District of Alabama denied Charest’s first
petition for writ of habeas corpus (Case 03-cv-283-CB-D; Doc. 16), which the
Eleventh Circuit Court of Appeals later affirmed (Case 03-cv-283-CB-D; Doc.
25), because it was time-barred. (Case 03-cv-283-CB-D; Doc. 16, p. 1).
Charest filed a third Rule 32 petition in September 2006 (Doc. 62-6, p.
1), but he did not argue in that petition that the crimes occurred in Florida.
(Doc. 62-6, pp. 2 – 3). The circuit court denied his petition, which the Court of
Criminal Appeals affirmed in 2008. (Doc. 62-6, p. 5 – 6). Charest filed a
fourth Rule 32 petition in 2009, which the circuit court also denied and the
Court of Criminal Appeals affirmed. (Doc. 9-7).
Charest then filed his second habeas petition to initiate this case in
February 2010. After careful consideration, this Court dismissed the petition
with prejudice for failing to comply with 18 U.S.C. § 2244(b)(3)(A). (Docs. 10,
14). Charest filed a motion for a COA, which the Eleventh Circuit granted, as
to the following question:
Whether Charest’s 2005 resentencing constituted a new and
final judgment and, if so, whether the district court erred in
finding that Charest’s 28 U.S.C. § 2254 habeas petition was
second and successive.
(Doc. 26, p. 4). The Eleventh Circuit eventually concluded that this Court
failed to address Charest’s argument that his 2005 re-sentencing constituted
a new and final judgment. The Eleventh Circuit thus vacated and remanded
the case to this Court for further consideration. (Doc. 29, p. 3).
Upon remand, this Court appointed legal counsel for Charest, and

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established a briefing schedule to address the issues identified by the
Eleventh Circuit. (Doc. 32). After the parties briefed the issues presented on
remand, the magistrate judge issued a report that recommended denying the
petition for writ of habeas corpus on the basis that Charest abused the writ
and because the second petition was time-barred. (Doc. 63, pp. 55 – 56). The
magistrate judge also concluded that Charest’s 2005 sentence modifications
were a “new judgment” in accordance with Magwood v. Patterson, 561 U.S.
320 (2010). (Doc. 63, pp. 34 – 36). This Court, however, declined to adopt the
portion of the magistrate judge’s report and recommendation that discusses
and concludes that the 2005 sentence modification amounted to a “new
judgment.” (Doc. 86, p. 5). This Court adopted the remainder of the report
and recommendation. (Doc. 86, p. 5).
Charest appealed this Court’s order dismissing his 28 U.S.C. § 2254
petition on jurisdictional grounds and, in the alternative, denying it as an
abuse of the writ and untimely. (Doc. 101, pp. 1 – 2). Without considering
Charest’s underlying claim that the crimes occurred in Florida, this Court
granted a COA on the following question:
Whether Charest’s current habeas petition was a second or
successive petition and subject to dismissal for lack of
jurisdiction, or whether his 2005 sentence modification did
not constitute a new and intervening judgment which,
pursuant to Magwood v. Patterson, 561 U.S. 320, 130 S. Ct.
2788 (2010), would restart the one-year period for filing a
habeas petition.
(Doc. 96; Doc. 101, p. 2).
In a brief order, the Eleventh Circuit vacated the COA, and remanded
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the case for this court to consider whether Charest has made a substantial
showing of the denial of a constitutional right, in conformity with Slack v.
McDaniel. 529 U.S. 473, 484 – 85 (2000). The Eleventh Circuit stated this
Court’s COA “fails to indicate that jurists of reason would find Charest’s
underlying jurisdictional arguments debatable, insofar as he needed to make
a substantial showing of the denial of a constitutional right.”4 (Doc. 101, p. 2).
Pursuant to the Eleventh Circuit’s instruction, this Court now considers
whether Charest has made a substantial showing of the denial of a
constitutional right.
ANALYSIS
“When the district court denies a habeas petition on procedural
grounds without reaching the prisoner’s underlying constitutional claim, a
COA should issue when the prisoner shows, at least, (1) that jurists of reason
would find it debatable whether the petition states a valid claim of the denial
of a constitutional right and (2) that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.” Slack, 529
U.S. at 484 (numerals and emphasis added). Therefore, determining
“whether a COA should issue where the petition was dismissed on procedural
grounds has two components, one directed at the underlying constitutional
Charest moved the Court to brief the question presented on remand. (Docs.
102, 104). Charest has thoroughly briefed the question of jurisdiction through
his Rule 32 petitions, his first federal habeas petition, and this matter.
Further briefing on the location of the Alabama state line, the indictment,
trial, and issues related to jurisdiction would be redundant and unnecessary.
Therefore, Charest’s motions for additional briefing (Docs. 102, 104) are due
to be DENIED.
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claims and one directed at the district court’s procedural holding.” Id. at 484
– 85. In this case, the Eleventh Circuit has directed this Court to re-examine
the first component, and decide whether Charest raised a valid claim of the
denial of a constitutional right about which reasonable jurists may disagree
based on his argument that his crimes occurred in Florida, not Alabama.
To make “a substantial showing of the denial of a constitutional right,”
28 U.S.C. § 2253(c)(2), Charest must demonstrate “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 presented were
adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell,
537 U.S. 322, 336 (2003) (citation and quotations omitted). Although Charest
need not demonstrate his appeal will succeed to be entitled to a COA, he
must “prove something more than the absence of frivolity or the existence of
mere good faith.” Id. at 338. Charest fails to make that showing here, which
is supported by the fact that each jurist reviewing this case has agreed that
Alabama had jurisdiction to prosecute Charest, and there is no debate that
the claim should have been resolved in a different manner.
A review of the testimony and evidence offered at trial, along with
twenty years of post-conviction motions, briefs, and court orders, help confirm
that Charest’s argument is without merit. During Charest’s trial in 1995,
multiple witnesses testified that the crimes at issue took place in Alabama.
Specifically, Tina Charest (Charest’s daughter), “A.C.” (victim), Lawrence

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Griffith (Baldwin County Sheriff’s Department), and Crystal O’Donovan
(witness) each testified about the events occurring in Alabama. (Appendix A,
pp. 20 – 101). No objections were raised at trial regarding the testimony that
the crimes occurred in Alabama, and the jury found the evidence sufficient to
convict Charest of rape and sodomy.5
Nevertheless, after his conviction Charest has argued that the “State’s
Indictment assumes Alabama had Jurisdiction, but no proof at trial.”
(Appendix A, p. 113). Charest has also argued that the Florida line is miles
away from the Perdido River and where the crimes occurred because of
natural changes over time. (Doc. 63, pp. 7 – 10; Appendix A, p. 114). These
arguments fail. The Perdido River forms the boundary between Alabama and
Florida. Ala. Const. I, § 37; Ala. Code § 41-2-4; Fla. Const. art. II, § 1; Fla.
Stat. Ann. § 6.081. There is no dispute between Alabama and Florida
regarding the location of the state line. The bridge Charest traversed with
A.C. crosses the Perdido River, and at trial four witnesses testified Charest
and A.C. were located on the Alabama side of the bridge when the crimes
occurred. (Appendix A, pp. 20 – 101).
However, assuming for the sake of argument that the crimes took
Charest’s convictions also show that the jury found beyond a reasonable
doubt that the crimes occurred in Alabama. The State need not show by
direct evidence that the crime was committed in Baldwin County, Alabama;
circumstantial evidence will suffice. See Lewis v. State, 461 So. 2d 9, 11 (Ala.
1984); Allen v. State, 374 So. 2d 447 (Ala. Cr. App. 1979). However, the
record shows that the State did present direct evidence concerning the
location of the crime and testimony from four individuals stating that the
incident took place in Alabama.
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place on the Florida side of the bridge, the Circuit Court of Baldwin County
would still have jurisdiction to hear Charest’s case. Charest does not deny
that he and the victim crossed back and forth between Alabama and Florida
on the night in question. (Doc. 63, p. 3, n. 5). As the United States Supreme
Court explained in Heath v. Alabama, the doctrine of dual sovereignty would
thus provide Alabama and Florida with jurisdiction to prosecute Charest. 474
U.S. 82, 88 (1985).
In Heath, the petitioner hired two men to kill his wife. In accordance
with petitioner’s instructions, the men kidnapped petitioner’s wife from her
home in Alabama. Her body was later found on the side of a road in Georgia.
Petitioner pleaded guilty to “malice” murder in a Georgia trial court in
exchange for a sentence of life imprisonment. Subsequently, he was tried and
convicted of murder during a kidnapping and was sentenced to death in an
Alabama trial court, which rejected his claim of double jeopardy. Id. at 84.
The Alabama Court of Criminal Appeals and the Alabama Supreme Court
affirmed the conviction. The Supreme Court then affirmed the Alabama
Supreme Court, explaining:
The Constitution leaves in the possession of each State
certain exclusive and very important portions of sovereign
power. Foremost among the prerogatives of sovereignty is the
power to create and enforce a criminal code. To deny a State
its power to enforce its criminal laws because another State
has won the race to the courthouse would be a shocking and
untoward deprivation of the historic right and obligation of
the States to maintain peace and order within their confines.
Heath, 474 U.S. at 93 (internal citations and quotations omitted). The

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Supreme Court also acknowledged Alabama’s criminal code includes a
statute that provides:
When the commission of an offense commenced in the State
of Alabama is consummated without the boundaries of the
state, the offender is liable to punishment therefor in
Alabama; and venue in such case is in the county in which
the offense was commenced, unless otherwise provided by
law.
Id. at 85 (citing Ala. Code § 15-2-3). Accordingly, if a crime commences in
Alabama it may be punished in Alabama regardless of where the crime is
consummated. Id. Here, Charest began the sequence of events that led to his
rape and sodomy convictions while traveling between Alabama and Florida.
Thus even if the crimes ultimately occurred in Florida, as Charest argues,
Alabama still had jurisdiction to try the case. The record, however, does not
support Charest’s contention that the crimes took place on the Florida side of
the Perdido River.
The Court of Criminal Appeals has further noted that jurisdiction over
a defendant “requires both personal and subject matter jurisdiction” and
matters of “personal jurisdiction are waivable.” (Doc. 62-14, pp. 7 – 8); see
also Goulden v. State, 299 So. 2d 325, 326 (Ala. 1974) (jurisdiction requires
personal jurisdiction of the parties and the subject matter to be adjudged).
Charest appeared in the Circuit Court of Baldwin County and had his case
tried by a jury, thus he waived any arguments concerning personal
jurisdiction he may have tried to claim. See Boles v. State, 717 So. 2d 877,
881 (Ala. Crim. App. 1998) (“Personal jurisdiction is attained by a defendant’s

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appearance before the court.”). Subject matter jurisdiction is a court’s power
to decide a case. Ex Parte Seymour, 946 So. 2d 536, 538 (Ala. 2006) (subjectmatter jurisdiction refers to a court’s “statutory or constitutional power” to
adjudicate a case). In Alabama, circuit courts have subject matter jurisdiction
over felony prosecutions. Id. at 539; see also Rothchild v. State, 558 So. 2d
981, 983 – 84 (Ala. Crim. App. 1989) (explaining the “subject matter” in the
criminal setting is the crime itself, and circuit courts have jurisdiction over
felony cases). Because Charest’s indictment and trial included two felony
counts, the circuit court had subject matter jurisdiction over his case. Ala.
Code § 12-11-30; Ala. Code § 12-12-32(a)(2).
Apart from Charest arguing that his crimes occurred in Florida, there
is no indication that jurisdiction in this case is otherwise defective. The
indictment pertained to felony and misdemeanor charges, giving the circuit
court jurisdiction to hear the case. Charest’s argument that the boundary
between Florida and Alabama does not rest in the Perdido River is without
merit. As a result, the Circuit Court of Baldwin County had jurisdiction to
preside over Charest’s trial in 1995.
CONCLUSION
After reviewing the extensive record in this case, and carefully
considering Charest’s argument concerning the trial court’s alleged lack of
jurisdiction, the Court concludes Charest does not raise a valid claim of the
denial of a constitutional right. The record shows Alabama had jurisdiction to

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try this case. The Circuit Court of Baldwin County, the Court of Criminal
Appeals, and the Alabama Supreme Court have likewise concluded that
Alabama had jurisdiction to try this case. Although jurists may debate
whether the 2005 modification of Charest’s sentence amounts to a new
judgment (Doc. 86, pp. 3 – 5), jurists of reason would agree Charest has not
stated a valid claim of the denial of a constitutional right based on his
assertion that the border between Alabama and Florida is unclear.
Because the two components of Slack are not satisfied, a COA should
not issue. Charest’s motions for more briefing (Docs. 102, 104) are DENIED.
Additionally, the Court again concludes that in the alternative, the writ is
due to be denied because Charest has abused the writ and it is time-barred.
DONE and ORDERED this 31st day of August, 2015.
/s/ Callie V. S. Granade
UNITED STATES DISTRICT JUDGE

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