Baine v. Mitchum

Filing 40

ORDER ADOPTING 33 REPORT AND RECOMMENDATION as the opinion of this Court, with the additional discussion as set forth in order; and finding that Baine is not entitled to issuance of a Certificate of Appealability, and therefore, is not entitled to appeal in forma paupris. Signed by Judge Callie V. S. Granade on 11/8/2013. (copy to petitioner) (mab)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MARK A. BAINE,
Petitioner,
vs.
BILLY MITCHUM,
Respondent.

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) Civil Action No. 10-0334-CG-N
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ORDER

This matter is before the Court on the Report and Recommendation of
the Magistrate Judge (Doc. 33). Also before the court is the respondent Billy
Mitchum’s (“Mitchum”) and the petitioner Mark A. Baine’s (“Baine”)
objections thereto (Docs. 37, 39). The Magistrate Judge recommended that
Baine’s petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 be
denied and that no Certificate of Appealability be issued nor appeal of this
ruling be brought in forma pauperis. After due and proper consideration of all
portions of this file deemed relevant to the issue raised, and a de novo
determination of those portions of the recommendation to which objection is
made, the Report and Recommendation of the Magistrate Judge made under
28 U.S.C. § 636(b)(1)(B) is ADOPTED as the opinion of this Court, with the
following additional discussion.

DISCUSSION
Following his direct appeal, Baine filed the present petition pursuant
to 28 U.S.C. § 2254 challenging his 2006 murder conviction. Baine’s habeas
petition raises the following claims:
(1) Prosecutor violated the 5th and 14th Amendments by
commenting at trial on Baine’s post-arrest silence. (Doc. 1 at 8).
(2) Trial court violated Baine’s due process right when it did not
give jury instruction on voluntary intoxication and a lesserincluded offense. (Id. at 9-10)
(3) Baine was denied a fit and impartial judge (Id. at 12)
(4) State failed to disclose all the statements made by its
witness, Daryl Blount, on the night of the crime including
evidence that would have impeached his testimony. (Id. at 14).
(5) If the State contends that “no ‘eyewitness’ Report to the
Police” by Daryl Blount exists, then Blount’s testimony that he
gave such a report to the policy was perjured testimony used to
obtain Baine’s conviction. (Id. at 15-16).
(6) Numerous exhibits were admitted into evidence without
scientific testing and should have been excluded. (Id. at 16).
(7) Baine’s right to a fair trial was violated when trial counsel
allowed the State to mislead the jury, and appellate counsel to
mislead the Alabama Court of Criminal Appeals, into believing
that the swabs of DNA were taken from the victim when they
were in fact taken from Baine. (Id.).
(8) Trial counsel was ineffective because he failed to request jury
instruction on a lesser included offense; to object to the
undisclosed statement made by the State’s witness, Daryl
Blount; to object to the prosecutor’s commenting at trial about
Baine’s post arrest silence; to object to the admission of
“untested” evidence; to appeal adverse ruling on motion to
suppress; and to pursue Baine’s motion for impeaching
information. (Id. at 17-20).

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(9) State’s evidence was insufficient to warrant a conviction for
murder. (Id. at 21).
(10) Potentially exculpatory evidence was suppressed or
destroyed. (Id.)
(11) Appellate counsel was ineffective for failing to address on
appeal trial counsel’s failure too appeal adverse ruling on motion
to suppress evidence obtained by unconstitutional seizure. (Id.
at 22).
(Doc. 33 at 10-11). Relying on the Alabama Court of Criminal Appeals finding
that claims 4, 5, 6, and 10 were not sufficiently plead as required by Alabama
law, the Magistrate Judge found the claims were procedurally defaulted.
Although the Magistrate Judge noted that the Alabama Criminal Court of
Appeals found 1, 2, 3, and 7 procedurally defaulted for the same reasons, the
Magistrate Judge denied the claims on the merits rather than on the basis of
being barred as procedurally defaulted. Specifically, the report and
recommendation states:
On direct appeal, Baine argued in sum, that the State’s
evidence was insufficient to prove that he committed murder. He
specifically argued that there was no evidence that he intended
to cause the death of Brunson or used an object of any type to
cause the death. Consequently, Blaine’s claims two and five, are
exhausted to the extent he asserted these claims on direct
appeal.
Pursuant to his post-conviction Rule 32 petitions, Baine
raised at leas nine claims for relief. On appeal from the denial of
his Rule 32 petition, he raised thirteen claims. The claims
asserted by Baine in the present federal habeas petition were
among the claims asserted in his appeal from the denial of his
Rule 32 petition. Consequently, the federal claims are
exhausted. The Alabama Court of Criminal Appeals affirmed the
denial of Baine’s Rule 32 petition, holding that the claims were
not pleaded with the specificity required by Ala.R.Crim.P 32.2

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and 32.6(b). The judgment entered by the Alabama Court of
Criminal Appeals appears to rest solely on a procedural bar (doc.
9-20 at 2-4). However, Respondent has, like the Mobile County
Circuit Court, addressed Baine’s claims on the merits and the
undersigned will do the same.
(Doc. 33 at 22-23).
Mitchum objects to the report and recommendation to the extent that
the Magistrate Judge’s analysis of claims 1, 2, 3 and 7 on the merits is
“construed as a waiver of the state procedural bar by the Respondent.” (Doc.
37 at 3). The court does not construe the Magistrate Judge’s language as a
waiver of the procedural bar by the Respondent. Rather, the court
acknowledges that the claims are due to be denied as procedurally defaulted,
but also goes through the analysis of why the claims are denied on the merits
to oblige such arguments addressed by the Respondent’s motion.
Baine’s objection fails to raise any issue not previously addressed in
the Magistrate Judge’s report and recommendation. Rather, Baine merely
rehashes and expands upon previously considered and rejected arguments in
connection with his § 2254 claim. The court has considered Baine’s
arguments, and reviewed the report and recommendation of the Magistrate
Judge. The court finds that the Magistrate Judge properly denied all § 2254
claims raised by Baine. The Magistrate Judge also properly rejected Baine’s
request for an evidentiary hearing.

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CONCLUSION
It is ORDERED that the petition for writ of habeas corpus filed by
Mark A. Baine (Doc. 1) is hereby DENIED. The court further finds that
Baine is not entitled to issuance of a Certificate of Appealability, and,
therefore, is not entitled to appeal in forma pauperis.
DONE and ORDERED this 8th day of November, 2013.
/s/ Callie V. S. Granade
UNITED STATES DISTRICT JUDGE

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