Steele v. Patterson
Order - Prior to ruling on the procedural default issues raised by the respondent, it is ORDERED that the petitioner answer interrogatories as further set out by 7/15/2011. Signed by Magistrate Judge William E. Cassady on 6/15/2011. copies mailed. (sdb)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
LARRY J. STEELE,
Petitioner, Larry Steele, has filed a complaint seeking relief from his state-court
capital murder conviction pursuant to 28 U.S.C. ' 2254. On June 3, 2011, a response was
filed, pursuant to 28 U.S.C. foll. ' 2254, Rule 5. Therein, respondent alleges that all of
the claims raised in the complaint for habeas corpus review are barred from review in
this Court by the doctrine of procedural default. This order is purposely designed: (1)
to not only give petitioner an opportunity to respond to the procedural default
defenses, but also to set a reasonable schedule for receiving his response; (2) to identify
those specific claims to which the defense applies; (3) to give the petitioner a brief
explanation of the controlling legal standards; (4) to require responses to specific
interrogatories drafted by the Court in an attempt to obtain the reasons for the defaults
and the specific prejudice suffered as a result of the specific constitutional errors subject
to default; and (5) to warn the petitioner that his failure to comply with the order could
constitute a waiver of the opportunity to demonstrate that either of the exceptions to the
procedural default doctrine are applicable.
Claims Subject to Procedural Default.
The claims raised in the Rule 32 petition filed by Steele in the Circuit Court of
Choctaw County, Alabama in July of 2009 (see Doc. 11, Case Action Summary Sheet),
are identical to those raised in the instant petition (compare Doc. 11, Petition for Relief
from Conviction or Sentence with Doc. 1). As set forth in the instant habeas corpus
petition, the claims are as follows: (1) the trial court erred in denying the motion to
suppress statements made to law enforcement officials; (2) petitioner was deprived of
his right to effective assistance of trial counsel because his trial attorney failed to assure
that he received a competency hearing; (3) petitioner was deprived of his right to
effective assistance of appellate counsel because his appellate attorney failed to
challenge trial counsel’s deficiency in not insisting on a competency hearing nor did he
request a new trial on the basis that no determination had been made by the trial court
regarding his competency at the time of the offense or to stand trial; (4) the trial court
was without jurisdiction to render judgment or impose sentence due to its failure to
conduct a competency hearing; (5) petitioner was deprived of his Sixth Amendment
constitutional right to a speedy trial; (6) the evidence offered at trial was insufficient to
establish each element of capital murder beyond a reasonable doubt; (7) the court erred
in refusing to give lesser-included-offense instructions; and (8) Alabama’s capital
murder guilty plea statute, Ala.Code § 13A-5-42, is unconstitutionally void. (Doc. 1, at
14-27; compare id. with Doc. 11, Rule 32 Petition, at 16-32.)
It is argued by the respondent that Steele has procedurally defaulted all of his
claims asserted in the instant petition, save his ineffective assistance of trial and
appellate counsel claims, under Ala.R.Crim.P. 32.2, apparently due to his failure to raise
these issues at trial or on direct appeal. (Compare Doc. 11, at 6-7 with Doc. 11, October 22,
2010 MEMORANDUM, at 2.) Moreover, it is argued that petitioner has procedurally
defaulted all ineffective assistance of counsel claims by failing to meet his burden of
pleading requirements under Rules 32.3 and 32.6(b) of the Alabama Rules of Criminal
Procedure. (Compare Doc. 11, at 12-13 with Doc. 11, October 22, 2010 MEMORANDUM,
It is clear that the Alabama Court of Criminal Appeals applied the foregoing
procedural bars as outlined by the respondent and, therefore, it is appropriate to
explain the procedural default doctrine to petitioner.
Explanation of Procedural Default Doctrine.
State prisoners seeking federal habeas corpus relief who fail to raise their federal
constitutional claims in state court, or who attempt to raise them in a manner not
permitted by state procedural rules, are barred from pursuing those same claims in
federal court absent a showing of cause for and actual prejudice from their failure to
properly raise their claims or a fundamental miscarriage of justice.
Thompson, 501 U.S. 722, 729-31, 111 S.Ct. 2546, 2553-54, 115 L.Ed.2d 640 (1991);
Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977); Alderman
v. Zant, 22 F.3d 1541, 1549 (11th Cir.), cert denied, sub nom. Alderman v. Thomas, 513 U.S.
1061, 115 S.Ct. 673, 130 L.Ed.2d 606 (1994). Accordingly, if respondent’s assessment that
the above-enumerated claims have been defaulted is found to be correct, they will not
be considered by this Court unless petitioner “can demonstrate cause for the default
and actual prejudice as a result of the alleged violation of federal law, or demonstrate
that failure to consider the claims will result in a fundamental miscarriage of justice.”
Coleman, supra, 501 U.S. at 750, 111 S.Ct. at 2565; Sims v. Singletary, 155 F.3d 1297, 1311
(11th Cir. 1998), cert. denied sub nom. Sims v. Moore, 527 U.S. 1025, 119 S.Ct. 2373, 144
L.Ed.2d 777 (1999).
“[T]he cause standard requires the petitioner to show that ‘some objective factor
external to the defense impeded counsel’s efforts’ to raise the claim in state court.”
McCleskey v. Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 1470, 113 L.Ed.2d 517 (1991) (quoting
Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986)). “Once
the petitioner has established cause, he must show ‘actual prejudice’ resulting from the
errors of which he complains.” Id. at 494, 111 S.Ct. at 1470 (quoting United States v.
Frady, 456 U.S. 152, 168, 102 S.Ct. 1584, 1594, 71 L.Ed.2d 816 (1982)). Finally, in those
“extraordinary instances” where a petitioner is able to implicate “a fundamental
miscarriage of justice”, i.e., that a “constitutional violation probably has caused the
conviction of one innocent of the crime[,]” this Court may issue a writ of habeas corpus
regardless of any procedural default. Id.
Interrogatories to Petitioner.
Prior to ruling on the procedural default issues raised by the respondent, it is
ORDERED that the petitioner answer the following interrogatories:
1. Do you agree with respondent’s position that one or more procedural defaults
2. If you do not agree that a default has occurred, give each and every reason for
3. Assuming that respondent is correct that a procedural default has occurred,
for each listed default, give each and every reason that caused (situation, event, or agent
that produced result) the default.
4. Assuming that respondent is correct that a procedural default has occurred,
for each listed default state specifically the actual prejudice (specific harm or injury to
the outcome of your case) that you suffered as a result of the constitutional violation(s).
If more than one procedural default is alleged to have occurred, also state the actual
prejudice you suffered as a result of the combined defaults.
If you argue that you are actually innocent of the crime(s) upon which
your custody is based, state your reasons.
Due Date for Response.
The petitioner shall file his response to this order on or before July 15, 2011.
Should petitioner fail to timely file a response, such failure shall be deemed a waiver of
petitioner’s opportunity to demonstrate that the merits of his procedurally defaulted
claims may be considered due to the existence of either the cause and prejudice or
fundamental miscarriage of justice exceptions to the procedural default doctrine.
DONE and ORDERED this the 15th day of June, 2011.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE
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