Dunkerley v. State of Alabama
Filing
39
ORDER adopting Report and Recommendations re 36 Report and Recommendation. For the reasons set forth, Petitioner's objections are OVERRULED and the R&R is ADOPTED.. Signed by Senior Judge Charles R. Butler, Jr on 7/7/2014. (adk)
IN
THE
UNITED
STATES
DISTRICT
COURT
FOR
THE
SOUTHERN
DISTRICT
OF
ALABAMA
SOUTHERN
DIVISION
PETER
JAMES
DUNKERLEY,
Petitioner,
v.
DEWAYNE
ESTES,
Respondent,
)
)
)
)
)
)
)
)
)
CIVIL
ACTION
NO.
13-‐00331-‐CB-‐M
ORDER
Petitioner
Peter
James
Dunkerley
has
filed
an
objection
(Doc.
37)
to
the
Magistrate
Judge’s
Report
and
Recommendation,
made
pursuant
to
28
U.S.C.
§
636(b)(1)(B),
which
recommends
that
Dunkerley’s
habeas
petition
be
denied.
For
the
reasons
set
forth
below,
the
Court
overrules
Petitioner’s
objections
and
adopts
the
Report
and
Recommendation.
Background
Petitioner
has
raised
four
claims
in
his
§
2254
petition
challenging
the
constitutionality
of
his
state
conviction
for
possession
of
child
pornography.
None
of
those
claims
were
raised
on
direct
appeal
in
state
court,
but
Petitioner
did
raise
them
in
his
state
Rule
32
collateral
attack.
In
denying
Petitioner’s
Rule
32
appeal,
the
Alabama
Court
of
Criminal
Appeals
found
three
of
the
four
claims
were
procedurally
barred
under
state
law.
The
appellate
court
did
not
address
Petitioner’s
fourth
claim
because
he
did
not
pursue
it
in
the
Rule
32
appeal.
Petitioner
did
not
file
a
petition
for
writ
of
certiorari
with
the
Alabama
Supreme
Court
and,
therefore,
failed
to
exhaust
his
Rule
32
appeal.
The
Magistrate
Judge
found
all
four
claims
raised
in
Petitioner’s
§
2254
habeas
petition
to
be
barred
by
the
doctrine
of
procedural
default.
The
first
three
claims
were
procedurally
defaulted
for
two
alternative
reasons.
First,
the
Alabama
Court
of
Criminal
Appeals
found
that
the
procedural
default
applied,
and
federal
courts
are
bound
by
that
determination.
See
Harris
v.
Reed,
489
U.S.
255
(1989).
Second,
by
failing
to
petition
the
Alabama
Supreme
court
for
a
writ
of
certiorari,
Petitioner
failed
to
exhaust
those
claims,
which
are
now
barred
by
procedural
default.
See
McNair
v.
Campbell,
416
F.3d
1291,
1305
(11th
Cir.
2005)
(“It
is
well
established
that
when
a
petitioner
has
failed
to
exhaust
his
claim
by
failing
to
fairly
present
it
to
the
state
courts
and
the
state
court
remedy
is
no
longer
available,
the
failure
also
constitutes
a
procedural
bar.”)
The
Magistrate
Judge
found
the
fourth
claim
to
be
procedurally
barred
for
failure
to
exhaust
because
that
claim
was
not
raised
at
all
in
the
Rule
32
appeal
to
the
Alabama
Court
of
Criminal
Appeals.
See
id.
The
Magistrate
Judge
rejected
Petitioner’s
attempts
to
overcome
procedural
default
based
on
“cause
and
prejudice”
or
“actual
innocence”.
Discussion
Petitioner
does
not
object
to
the
Magistrate
Judge’s
initial
conclusion
that
the
claims
were
procedurally
defaulted.
Instead,
his
objections
are
focused
on
the
exceptions
to
procedural
default.
Petitioner
argues
that
the
confiscation
of
his
legal
papers
by
prison
officials
demonstrates
cause
for
his
procedural
default.
As
Petitioner’s
evidence
shows,
those
papers
were
not
confiscated
from
him
but
from
another
inmate-‐-‐a
“prison
law
clerk”
to
whom
he
had
given
his
papers
for
assistance.
That
inmate
was
placed
in
segregation
for
disciplinary
reasons
and
took
2
with
him
legal
papers
belonging
to
other
inmates,
including
Petitioner.
“’[C]ause’
under
the
cause
and
prejudice
test
must
be
something
external
to
the
petitioner,
something
that
cannot
fairly
be
attributed
to
him.”
Coleman
v.
Thompson,
501
U.S.
722,
753
(2001).
Petitioner’s
decision
to
entrust
his
legal
papers
to
another
inmate
who
proved
to
be
untrustworthy
does
not
satisfy
the
“cause”
requirement.
See
Cabrera
v.
Page,
172
F.Supp.2d
966,
983-‐84
(N.D.
Ill.
2001)(“mistakes
of
a
prison
law
clerk”
do
not
constitute
“cause”
for
procedural
default),
rev’d
on
other
grounds,
324
F.3d
527
(7th
Cir.
2003).
Even
if
Petitioner
could
demonstrate
“cause”
for
(and
prejudice
from)
his
failure
to
file
a
petition
for
certiorari,
that
would
address
only
one
basis
for
the
Magistrate
Judge’s
procedural
default
findings
as
to
Claims
One
through
Three.
The
Magistrate
found
that
procedural
default
also
applied
for
an
alternative
reason,
that
is,
because
the
Alabama
Court
of
Criminal
Appeals,
on
Rule
32
appeal,
had
found
those
claims
to
be
procedurally
defaulted
under
state
court
rules.1
Next,
Petitioner
contends
that
his
claims
are
not
subject
to
procedural
default
under
the
“miscarriage
of
justice”
exception
because
he
is
actually
innocent.
“[T]he
miscarriage
of
justice
exception
is
concerned
with
actual
as
compared
to
legal
innocence.”
Calderon
v.
Thompson,
523
U.S.
538,
559
(1998)
(internal
citations
and
quotations
omitted).
The
Supreme
Court
has
sought
to
ensure
that
the
exception
“would
remain
‘rare’
and
would
only
be
applied
in
the
‘extraordinary
case,’
while
at
the
same
time
ensuring
that
the
exception
would
extend
relief
to
those
who
were
truly
deserving.”
Schlup
v.
Delo,
513
U.S.
298,
321
(1995).
Because
of
the
narrow
1
Specifically,
the
claims
were
barred
under
state
court
rules
because
they
were
not
raised
on
direct
appeal.
3
scope
of
the
exception,
Petitioner
must
rely
on
new
evidence
to
demonstrate
that
he
is
“”factually
innocent
rather
than
legally
innocent.”
San
Martin
v.
McNeil,
633
F.3d
1257,
1268
(11th
Cir.
2011).
Petitioner
himself
“points
out
that
he
has
never
alleged
any
new
evidence
in
his
petition
nor
relied
on
Schulp
v.
Delo
[sic]
in
his
habeas
petition.”
(Obj.
¶
26,
Doc.
37.)2
Finally,
Petitioner
objects
to
the
Magistrate
Judge’s
“refusal
to
consider
[his]
request
that
he
be
allowed
to
amend
his
petition.”
(Id.
¶
28.)
The
Magistrate
Judge
did
not
err
by
failing
to
grant
leave
to
amend.
The
proper
method
for
requesting
leave
to
amend
a
complaint
is
by
filing
a
motion
for
leave
to
amend.
Long
v.
Satz,
181
F.3d
1275,
1279
(11th
Cir.
1999).
Furthermore,
“[a]
motion
for
leave
to
amend
should
either
set
forth
the
substance
of
the
proposed
amendment
or
attach
a
copy
of
the
proposed
amendment.”
Id.
Petitioner
did
not
fulfill
either
of
these
requirements.
He
did
not
file
a
motion
for
leave
to
amend.
Instead,
the
request
for
leave
to
amend
is
contained
within
Petitioner’s
response
addressing
the
issue
of
procedural
default
(Doc.
33).
That
document
contains
two
vague
statements
regarding
the
need
to
amend,
neither
of
which
set
forth
the
substance
of
the
proposed
amendment.
(Petr’s
Resp.
p.
14,
¶
13
&
p.
15,
Doc.
33.)
Because
Petitioner
failed
to
file
a
separate
motion
for
leave
to
amend
and
failed
to
provide
the
2
Petitioner
insists
that
the
Magistrate
Judge
misconstrued
his
actual
innocence
claim,
but
it
appears
that
Petitioner
has
misunderstood
the
difference
between
legal
and
factual
innocence.
In
his
response
brief
addressing
procedural
default
(Doc.
33),
Petitioner
argued
that
he
is
actually
innocent
because
the
statute
under
which
he
was
convicted
is
unconstitutional.
That
is
a
claim
of
legal
insufficiency
and,
as
such,
does
not
satisfy
the
actual
innocence
exception.
See
Bousley
v.
United
States,
523
U.S.
614
(1998)
(factual
innocence
is
not
“mere
legal
insufficiency”).
4
substance
of
the
amendments
he
proposed
to
make,
he
was
not
entitled
to
amend
his
petition.
Conclusion
For
the
reasons
set
forth
above,
Petitioner’s
objections
are
OVERRULED,
and
the
Magistrate
Judge’s
Report
and
Recommendation
is
ADOPTED
as
the
opinion
of
this
Court.
DONE
and
ORDERED
this
the
7th
day
of
July,
2014.
s/Charles
R.
Butler,
Jr.
Senior
United
States
District
Judge
5
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