Anderson v. Patterson

Filing 27

ORDER ADOPTING 21 REPORT AND RECOMMENDATION as the opinion of this court, with the exceptions described in order. Petitioner's 22 objection to report and recommendation and 25 motion to reject and dismiss respondent's objection to the report are DENIED. Signed by Judge Callie V. S. Granade on 6/8/2012. (copy to pltf) (mab)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MARQUIS R. ANDERSON,
AIS 189199,
Petitioner,
vs.
TONY PATTERSON,
Respondent.

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CIVIL ACTION NO. 10-00582-CG-B

ORDER
This matter is before the Court on the report and recommendation of the
magistrate judge (Doc. 21), the objection of petitioner to the report and
recommendation (Doc. 22), the objection (Doc. 23) and brief of respondent to the
report (Doc. 24), and petitioner’s motion to reject and dismiss respondent’s
objections to the report (Doc. 25). The magistrate judge recommended that
petitioner’s constitutional challenge to Alabama’s attempted murder statute was
procedurally defaulted and that petitioner has failed to establish ineffective
assistance of trial or appellate counsel with respect to his remaining habeas claims.
In his objection, respondent has argued that this Court is also procedurally barred
from reaching the merits of petitioner’s ineffective assistance of appellate counsel
relating to the filing of an Anders brief on direct appeal and petitioner’s ineffective
assistance of trial counsel claim regarding counsel’s failure to present certain taped
phone recordings to the jury. (Doc. 23 at 12; Doc. 24 at 12, 16-17). Respondent asks
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this Court to reject the report and recommendation in part, so that the court’s
opinion to reflects that these claims are also procedurally defaulted.1 (Doc. 23 at
16).
After due and proper consideration of all portions of this file deemed relevant
to the issues raised, and a de novo determination of those portions of the report and
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 the court, with the exceptions described below. Petitioner’s objection to the report
and recommendation (Doc. 22)2 and motion to reject and dismiss respondent’s
objections to the report (Doc. 25)3 are DENIED.
I. Amendments to the Report and Recommendation
A. Ineffective Assistance of Trial Counsel Claim
With respect to petitioner’s ineffective assistance of trial counsel for failing to
introduce the taped prison recordings into evidence, the Alabama Court of Criminal
Appeals stated the following:
1 Respondent does not object to the ultimate conclusion reached by the magistrate judge, but,
rather, seeks a modification of certain conclusions contained in the report and recommendation. (See
Docs. 23, 24).
2 The petitioner failed to file a brief in support of his statement of objection. The Court, therefore,
finds that petitioner has abandoned his objection. See S.D. Ala. L.R. 72.4 (June 1, 1997) (“Failure to
submit a brief in support of the objection may be deemed an abandonment of the objection.”).
3 Petitioner’s argument that respondent’s objection was not timely is meritless. The report and
recommendation issued by Judge Bivens on May 5, 2011 (Doc. 21) ordered that objections were due
by May 25, 2011. Respondent timely filed its objection on May 25, 2011. (Doc. 23). Alternatively,
petitioner’s claim that respondent’s objections are frivolous because his claims were pled with
specificity under Ala. R. Crim. P. 32.2 and 32.6(b) is unsupported by the record. Accordingly,
petitioner’s motion to reject and dismiss respondent’s objections to the report (Doc. 25) is DENIED.
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Anderson makes vague complaints about some taped conversations
which were not introduced into evidence, stating that the introduction of
the tapes into evidence would have changed the trial result. As an initial
matter, Anderson fails to plead sufficient facts to satisfy the pleading
requirements in Rule 32.3 and 32.6(b). Accordingly, this claim is
precluded for the lack of specificity required under Rules 32.6(b) and 33.3
of the Alabama Rules of Criminal Procedure.
In any event, decisions regarding whether to introduce particular
evidence at trial are matters of trial strategy and tactics. Such trial
strategy is to be left to the judgment of trial counsel. Anderson’s trial
counsel states in his affidavit that he decided not to introduce evidence of
the taped conversations for fear that said evidence would result in more
harm than help, in that the tapes indicated that Anderson was acting
aggressive towards the victim. Not surprisingly, then, counsel made the
strategic choice not to introduce the tapes.
(Doc. 13, Exhibit 9 at 6 (emphasis added)). The magistrate judge properly concluded
that the state court alternatively reached the merits of this claim, but nonetheless
“decline[d] to find that this Court is procedurally barred from reaching the merits . . .
given the restricted nature of that review.” (Doc. 21 at 21). This Court does not have
discretion to choose whether to rely on an independent and adequate state procedural
bar, and therefore, concludes that this claim is procedurally defaulted. See Alderman
v. Zant, 22 F.3d 1541, 1549 (11th Cir. 1994) (“[W]here a state court has ruled in the
alternative, addressing both the independent state procedural ground and the merits of
the federal claim, the federal court should apply the state procedural bar and decline to
reach the merits of the claim.”).
B. Ineffective Assistance of Appellate Counsel Claim
Similarly, petitioner’s ineffective assistance of appellate counsel claim
relating to the filing of an Anders brief was also dismissed by the Alabama Court of
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Criminal Appeals on an independent and adequate state law ground:
Anderson asserts that the filing of an Anders brief by his appellate
counsel constituted ineffective assistance of appellate counsel. Anderson
alleges that appellate counsel could have raised the issues that trial
counsel raised in the motion for new trial and the motion for judgment of
acquittal. Anderson fails to allege this claim with sufficient specificity to
satisfy the pleading requirements of Rule 32.3 and 32.6(b).
Additionally, Anderson complains that his appellate counsel was
ineffective for failing to raise a claim of ineffective assistance of trial
counsel concerning the same issues addressed above. For the same
reasons discussed above, Anderson has no valid Rule 32 claim concerning
his appellate counsel. Again, neither trial nor appellate counsel can be
ineffective for failing to take action for which there is no legal basis.
(Doc. 13, Exhibit 9 at 7-8 (emphasis added)).
The state court’s discussion quoted above described two claims: (1) that it was
ineffective assistance of appellate counsel to file an Anders brief and (2) that appellate
counsel was ineffective for failing to raise a claim of ineffective assistance of trial
counsel concerning counsel’s decision to file the Anders brief. With respect to the first
claim – the only appellate counsel claim to which Respondent has objected – the state
court relied solely upon the state procedural bar.

(See Doc. 13, Exhibit 9 at 8

(“Anderson fails to allege this claim with sufficient specificity to satisfy the pleading
requirements of Rule 32.3 and 32.6(b).”)).
The magistrate judge recognized that this claim of ineffective assistance of
appellate counsel “lacked specificity, and was procedurally barred from review,” (Doc.
21 at 21 n. 6), but relied upon the language in the second quoted paragraph above to
conclude that the state court also found that the claim lacked merit. (See id. at 20-21).
As previously stated, this Court does not read the state court opinion to reflect any
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merits-based review with respect to this particular claim, but even if the state court did
consider the merits of this claim, this Court concludes that it was an alternative ruling
under the Eleventh Circuit’s ruling in Alderman. Therefore, this claim is procedurally
defaulted, and this Court is barred from reviewing it on the merits. Alderman, 22 F.3d
at 1549 (quoting Harris v. Reed, 489 U.S. 255, 264 n.10 (1989) (internal citation
omitted)) (“As the Supreme Court stated, ‘a state court need not fear reaching the
merits of a federal claim in an alternative holding. By its very definition, the adequate
and independent state ground doctrine rule requires the federal court to honor a state
holding that is a sufficient basis for the state court’s judgment, even when the state
court also relies on federal law.’”).
Conclusion
The report and recommendation is adopted with the exceptions described herein,
which reflect that Petitioner’s ineffective assistance of trial counsel claim relating to
the recorded prison phone calls and the ineffective assistance of appellate counsel claim
relating to the filing of the Anders brief on direct appeal are procedurally defaulted,
and therefore, not considered by this Court on the merits.
DONE and ORDERED this the 8th day of June, 2012.
/s/ Callie V. S. Granade
UNITED STATES DISTRICT JUDGE

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