Dean v. Lockett
Filing
24
ORDER ADOPTING 20 REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by Lee Vernon Dean. It is recommended that the habeas petition be DENIED and that this action be dismissed. It is further recommended that any certifi cate of appealability filed by Petitioner be denied as he is not entitled to appeal in forma pauperis. Finally, it is recommended that judgment be entered in favor of Respondent, Cynthia White, and against Petitioner, Lee Vernon Dean. Signed by Senior Judge Charles R. Butler, Jr on 6/2/2015. (mpp) Copies to counsel & Ptr
IN
THE
UNITED
STATES
DISTRICT
COURT
FOR
THE
SOUTHERN
DISTRICT
OF
ALABAMA
SOUTHERN
DIVISION
VERNON
DEAN,
Petitioner,
v.
CYNTHIA
WHITE,
Respondent,
)
)
)
)
)
)
)
)
)
CIVIL
ACTION
NO.
14-‐00419-‐CB-‐M
ORDER
This
matter
is
before
the
Court
on
Petitioner’s
objection
to
the
Magistrate
Judge’s
Report
and
Recommendation
recommending
that
the
petition
for
habeas
corpus
relief
be
denied
and
dismissed,
that
a
certificate
of
appealability
be
denied,
and
that
permission
to
proceed
in
forma
pauperis
on
appeal
also
be
denied.
Petitioner
has
filed
an
objection
in
which
he
argues
that
he
is
entitled
to
an
evidentiary
hearing.
After
de
novo
of
the
issues,1
the
Court
adopts
the
Report
and
Recommendation
with
the
following
additions.
Petitioner
raised
three
claims
in
the
habeas
petition
filed
in
this
Court:
(1)
the
State
relied
on
evidence
obtained
in
violation
of
his
Fourth
Amendment
rights;
(2)
the
State
failed
to
disclose
exculpatory
information
in
violation
of
Brady
v.
Maryland;
and
(3)
ineffective
assistance
of
counsel.
In
her
answer,
Respondent
has
acknowledged
all
three
claims
but
has
specifically
addressed
only
one—ineffective
assistance
of
counsel.
To
further
complicated
matters,
Respondent’s
answer
1
Because
Petitioner’s
objections
do
not
address
particular
findings
or
conclusions
in
the
Report
and
Recommendation,
the
Court
has
conducted
a
de
novo
review
of
all
issues.
erroneously
states:
“Dean
appears
to
have
exhausted
his
claims
through
one
complete
round
of
state
court
review
as
required
by
28
U.S.C.
§
2254(b)(1).”
(Answer
¶
13,
Doc.
19.)
Despite
that
erroneous
acknowledgement,
Respondent
does
not
address
the
merits
of
either
claim,
neither
of
which
was
raised
in
state
court.2
In
the
Anti-‐Terrorism
and
Effective
Death
Penalty
Act
(AEDPA),
Congress
placed
certain
constraints
on
federal
habeas
review,
including
a
specific
requirement
that
no
application
for
writ
of
habeas
corpus
be
granted
to
a
person
in
state
custody
unless
“the
applicant
has
exhausted
the
remedies
available
in
.
.
.
[S]tate
court.”
28
U.S.C.
§
2254(b)(1)(A).3
“Exhaustion
of
state
remedies
requires
that
the
state
prisoner
‘fairly
present[t]
federal
[constitutional]
claims
to
the
state
court
in
order
to
give
the
State
the
opportunity
to
pass
upon
and
correct
alleged
violations
of
its
prisoners’
federal
rights.’”
Snowden
v.
Singletary,
135
F.3d
732,
735
(1998)
(quoting
Duncan
v.
Henry,
513
U.S.
364,
365
(1995)).
Furthermore,
“[i]t
is
2
Neither
claim
was
asserted
in
the
Rule
32
petition.
Facts
similar
to
those
underlying
the
Brady
claim
were
raised
in
support
of
an
ineffective
assistance
of
counsel
claim
at
the
Rule
32
hearing.
At
the
beginning
of
the
hearing,
Judge
Lockett
stated
that
Petitioner
“basically
ha[d]
a
general
contention
of
you
were
denied
effective
assistance
of
counsel”
based
on
“a
photo
spread”
and
“the
lack
of
investigation
about
into
[sic]
a
Mr.
Townsend.”
(R.
32
Tr.
4;
Doc.
19-‐1
at
115.)
Judge
Locket
asked
whether
there
was
“[a]nything
else
that
I
missed?”
(Id.)
Petitioner
responded:
“Since
I’ve
been
incarcerated
I
also
learned
that
during
the
day
of
my
trial
there
was
evidence
that
was
omitted
concerning
a
cellphone,
checkbook,
and
stuff
like
that.”
(Id.)
Petitioner
did
not
assert
that
the
prosecution
had
suppressed
the
evidence,
and
no
further
mention
of
that
claim
was
made
during
the
proceedings.
Nor
is
the
claim
mentioned
in
Judge
Lockett’s
Rule
32
order
or
in
the
order
issued
by
Alabama
Court
of
Criminal
Appeals
affirming
the
Rule
32
denial.
3
There
are
narrow
exceptions
to
the
exhaustion
requirement
not
applicable
here,
i.e,
“an
absence
of
available
State
corrective
process[
]
or
[
]
circumstances
[
]
that
render
such
process
ineffective
to
protect
the
rights
of
the
applicant.”
28
U.S.C.A
§
2254(b)(1)(B).
2
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.”
4
McNair
v.
Campbell,
416
F.3d
1291,
1305
(11th
Cir.
2005).
Petitioner
‘s
Fourth
Amendment
and
Brady
claims
can
no
longer
be
raised
in
state
court
due
to
Rule
32’s
prohibition
on
successive
petitions
and/or
Rule
32’s
limitations
period.
See
Ala.
R.
Crim.
P.
32(b)
(successive
petitions);
Ala.
R.
Crim.
P.
32(c)
(limitations
period).
These
claims
are,
therefore,
procedurally
barred.
5
With
respect
to
the
ineffective
assistance
of
counsel
claims,
which
were
exhausted
in
state
court,
the
standard
of
review
under
AEDPA
requires
the
Court
to
“accord
a
presumption
of
correctness
to
the
state
court’s
factual
findings.”
Mason
v.
Allen,
605
F.3d
1114,
1118
(11th
Cir.
2010)
(per
curiam).
The
state
court’s
decision
on
the
merits
of
a
claim
cannot
be
the
basis
for
habeas
relief
unless
the
adjudication
of
the
claim
“resulted
in
a
decision
that
was
contrary
to,
or
involved
an
unreasonable
application
of,
clearly
established
Federal
law,
as
determined
by
the
Supreme
Court
of
the
United
States”
or
“resulted
in
a
decision
that
was
based
on
an
unreasonable
determination
of
the
facts
in
light
of
the
evidence
presented.”
28
U.S.C.
§
2254(d)(1)
&
(2).
A
decision
is
“contrary
to”
federal
law
“if
the
state
court
arrives
at
a
conclusion
opposite
to
that
reached
by
[the
United
States
Supreme
4
It
is
possible
for
the
State
to
waive
the
exhaustion
requirement
but
only
if
“the
State,
through
counsel,
expressly
waives
the
requirement.”
28
U.S.C.
§
2254(d)(3).
The
Court
does
not
take
Respondent’s
erroneous
statement
that
Petitioner
“appears
to
have
exhausted
his
claims”
as
an
express
waiver.
5
The
Magistrate
Judge,
likely
out
of
an
abundance
of
caution,
addressed
the
merits
of
the
Brady
claim.
This
Court
alternatively
concludes
that
the
Brady
claim
is
procedurally
barred.
3
Court]
on
a
question
of
law
or
if
the
state
court
decides
a
case
differently
than
[the
United
States
Supreme
Court]
has
on
a
set
of
materially
indistinguishable
facts.”
Williams
v.
Taylor,
529
U.S.
362,
412-‐13
(2000).
A
decision
involves
an
“unreasonable
application
“
of
federal
law
“if
the
state
court
identifies
the
correct
governing
legal
principle
.
.
.
but
unreasonably
applies
that
principles
to
the
facts
of
the
prisoner’s
case.”
Id.
The
Rule
32
court
concluded
that
the
Petitioner
had
failed
to
meet
his
burden
of
proof
with
respect
to
his
ineffective
assistance
of
counsel
claims.
Petitioner
presented
no
evidence
other
than
his
own
testimony,
which
the
Rule
32
court
found
to
be
“conclusory”
and
“unsupported
by
evidence.”
This
Court
cannot
say
that
the
state
court’s
factual
determination
was
unreasonable
in
light
of
the
evidence
or
lack
thereof.
Nor
can
the
Court
say
that
the
denial
of
the
ineffective
assistance
of
counsel
claims
based
on
this
evidence
was
either
contrary
to
or
involved
an
unreasonable
application
of
Strickland
and
its
progeny.
For
the
reasons
set
forth
above,
the
Court
overrules
Petitioner’s
objections
and
adopts
the
Report
and
Recommendation
of
the
Magistrate
Judge
that
the
petition
be
denied
and
that
this
action
be
dismissed
with
prejudice.
DONE
and
ORDERED
this
the
2nd
day
of
June,
2015.
s/Charles
R.
Butler,
Jr.
Senior
United
States
District
Judge
4
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