Conner v. Stewart

Filing 16

ORDER denying 13 Motion for Certificate of Appealability. Signed by Chief Judge William H. Steele on 11/1/2016. Copy mailed to Petitioner. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
WILLIE LEE CONNER,
Petitioner,
v.
CYNTHIA D. STEWART,
Respondent.

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CIVIL ACTION 16-0273-WS-M

ORDER
This closed habeas corpus matter comes before the Court on petitioner’s Application for
Certificate of Appealability (doc. 13).
By Order dated September 28, 2016, the undersigned dismissed Willie Lee Conner’s §
2254 petition and made a specific finding that “any certificate of appealability filed by Petitioner
be DENIED.” (Doc. 10.) In conjunction with his ongoing appeal of the dismissal of his § 2254
petition, Conner now files an Application for Certificate of Appealability (“COA”). As grounds
for this Application, Conner maintains that he is entitled to a COA with respect to his claim that
he received ineffective assistance of counsel, in violation of his Sixth Amendment rights,
because his trial counsel failed to challenge the sufficiency of the evidence underlying his firstdegree robbery conviction.
The facts underlying Conner’s conviction are these: During an altercation with a homeimprovement store’s loss-prevention manager, Conner stated, “I have a gun,” and reached his
hand into his right front pants pocket. An ensuing search of Conner’s person revealed no
firearms; rather, he possessed only a roofing nailer (which he had stolen from the store) and a
small folding knife. The gravamen of Conner’s constitutional claim for which he seeks a COA is
that his trial counsel failed to challenge the sufficiency of this evidence to support a first-degree
robbery conviction under Alabama law. In particular, Conner fixates on the requirement that, in
the absence of serious physical injury to another, a statutory element of the Alabama felony of
first-degree robbery is that the defendant “[i]s armed with a deadly weapon or dangerous

instrument.” Ala. Code § 13A-8-41. Conner reasons that he did not actually possess a firearm
and that no one has ever suggested that the roofing nailer or pocket knife were deadly weapons;
therefore, he posits that he could not have been guilty of the offense of first-degree robbery as a
matter of Alabama law.
The fundamental problem with Conner’s theory of federal habeas relief is that Alabama
appellate courts have held for decades that possession of a deadly weapon is not a prerequisite to
conviction under § 13A-8-41. By its express terms, the statute provides that “any verbal or other
representation by the defendant that he is then and there so armed [with a deadly weapon], is
prima facie evidence … that he was so armed.” Ala. Code § 13A-8-41(b). And the Alabama
Court of Criminal Appeals has observed that “[t]he law is well settled that it is not necessary to
prove that the defendant … actually had a weapon to sustain a conviction of robbery in the first
degree. … [T]he accused need only represent in some manner that he has a deadly weapon.”
Bennett v. State, 584 So.2d 869, 870 (Ala.Crim.App. 1990); see also Ex parte Ware, 181 So.3d
409, 420 (Ala. 2014) (where State proceeded under § 13A-8-41(b), “proof beyond a reasonable
doubt of the requirements prescribed by that subsection requires not merely that the victim
subjectively believed that the defendant possessed a ‘deadly weapon’ or ‘dangerous instrument,’
but that he or she also ‘reasonably ... believed’ this to be true”); Lucas v. State, 45 So.3d 380,
384 (Ala.Crim.App. 2009) (“In a prosecution for first degree robbery, the robbery victim does
not actually have to see a weapon to establish the element of force; his or her reasonable belief
that the robber is armed is sufficient.”) (citations omitted); Pigg v. State, 925 So.2d 1001, 1003
(Ala.Crim.App. 2005) (“the State produced sufficient evidence from which the jury could, by
fair inference, find beyond a reasonable doubt that when the bank teller read the note containing
the word ‘kill,’ she could have reasonably believed that Pigg had the necessary weapon to carry
out his threats,” so as to support a conviction for first-degree robbery); Stallings v. State, 793
So.2d 867, 869 (Ala.Crim.App. 2000) (rejecting sufficiency challenge to first-degree robbery
conviction where bank teller never saw a gun, but “he believed the ‘something’ the appellant put
in his side may have been a gun”); Goodwin v. State, 641 So.2d 1289, 1293 (Ala.Crim.App.
1994) (evidence held sufficient to support § 13A-8-41 conviction and specifically the deadly
weapon element where defendant asked victim “is your life worth $40?” and victim believed
robber was holding a gun, even though he was merely holding a stick).

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Simply put, Alabama appellate courts have held time and time again that the deadlyweapon element of a § 13A-8-41 conviction is satisfied where the victim reasonably believed
that the defendant possessed a deadly weapon, even if the defendant did not actually possess
such an article. Under the facts presented to the jury in Conner’s case, there was plainly
sufficient evidence -- in the form of Conner’s “I have a gun” statement and his reaching his hand
into his pants pocket -- to allow the jury to find by fair inference that the loss-prevention
manager reasonably believed that Conner possessed a deadly weapon. The Court understands, of
course, that Conner believes the above-cited line of “well settled” Alabama case authorities to be
wrongly decided and in conflict with the statutory language. In particular, Conner latches onto
the “prima facie evidence” qualifier in the text of § 13A-8-41(b) and says that such evidence was
rebutted by clear proof that he did not actually have a gun. Because the Alabama cases set forth
supra do not address the “prima facie evidence” language in the statute, Conner maintains that
those cases were wrongly decided and that it was error for the Report and Recommendation to
rely on that line of authority.1
Of course, the constitutional claim that Conner asserts in his § 2254 petition is not that
the Alabama courts misconstrued the first-degree robbery statute, but that his trial counsel
rendered ineffective assistance of counsel in violation of the Sixth Amendment by failing to
challenge the sufficiency of the evidence to support his conviction under that statute. To prevail
on an ineffective assistance claim, Conner must satisfy the familiar two-part Strickland v.
Washington test. Specifically, he “must show that counsel’s performance was deficient, and that
the deficiency prejudiced the defense.” Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527,
156 L.Ed.2d 471 (2003). The deficient-performance inquiry begins with “a strong presumption
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As support for his position, Conner cites Herndon v. State, 563 So.2d 1065 (Ala.
1990), but Herndon actually undercuts his position. In Herndon, the defendant argued that he
could not be guilty of first-degree robbery because the gun he used in the robbery was not
loaded. The Alabama Supreme Court held that the unloaded status of a firearm was irrelevant
for purposes of § 13A-8-41(b) “because that statute’s concern is with whether any person present
is led reasonably to believe it to be a deadly weapon or dangerous instrument.” Id. at 1070-71
(internal quotation marks and emphasis omitted). In Herndon, as in all of the cases cited supra,
the focus was on whether the victim reasonably believed the defendant to possess a deadly
weapon, not whether the defendant actually did so; thus, Herndon dovetails neatly with the other
cases recited herein indicating that the victim’s reasonable belief that the defendant possessed a
deadly weapon is all that is required to satisfy the deadly weapon element of § 13A-8-41.

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that counsel’s conduct falls within the wide range of reasonable professional assistance.”
Darden v. United States, 708 F.3d 1225, 1228 (11th Cir. 2013) (citation and internal quotation
marks omitted). To overcome that strong presumption, Conner bears the heavy burden of
showing “that no competent counsel would have taken the action that his counsel did take.”
Williams v. Allen, 598 F.3d 778, 790 (11th Cir. 2010) (citation and internal quotation marks
omitted).
As discussed supra, at the time of Conner’s trial a phalanx of Alabama appellate
decisions had decreed that it was unnecessary for the State to prove that a defendant actually
possessed a firearm in order to support a first-degree robbery conviction, and that a § 13A-8-41
conviction was supported by sufficient evidence as long as the victim reasonably believed the
defendant possessed a deadly weapon. Conner’s present contention that all of those Alabama
appellate authorities were incorrectly decided does not come close to meeting his heavy burden
of showing that no competent counsel would have failed to raise a sufficiency challenge
attacking well-settled Alabama law in those circumstances. See generally Cave v. Secretary for
Dep’t of Corrections, 638 F.3d 739, 755 (11th Cir. 2011) (“[c]ounsel cannot be labeled
ineffective for failing to raise issues which have no merit”); Holladay v. Haley, 209 F.3d 1243,
1256 (11th Cir. 2000) (“In order to render effective assistance, counsel need not raise every
possible nonfrivolous issue …. Instead, it is the job of counsel to weed out the weaker
arguments.”). Stated differently, given the abundant Alabama appellate decisional authority
upholding § 13A-8-41 convictions even in the absence of an actual deadly weapon as long as the
victim reasonably believed that the defendant possessed such an item, it cannot be said that no
competent counsel would have failed to argue that, despite numerous on-point Alabama
decisions contrary to his position, the absence of an actual firearm required Conner’s acquittal of
the first-degree robbery charge as a matter of law. At the time of his trial, Alabama appellate
courts had definitively resolved this precise legal question adversely to Conner. The Sixth
Amendment does not require trial counsel to tilt at windmills or raise arguments that state
appellate courts have consistently rejected (whether rightly or wrongfully) in order to fall within
the wide range of competent performance guaranteed under Strickland. As such, Conner has not
established the “deficient performance” prong of the Strickland v. Washington test, and his
ineffective assistance claim fails as a matter of law.

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In short, the Court again concludes that issuance of a COA is unwarranted in this case.
Conner has not made “a substantial showing of the denial of a constitutional right,” including a
showing that “reasonable jurists could debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct.
1595, 146 L.Ed.2d 542 (2000). For all of these reasons, as well as those set forth in the Report
and Recommendation (doc. 7) previously adopted by the undersigned, the Court remains of the
opinion that petitioner has not made a substantial showing of the denial of a constitutional right,
and that issuance of a COA is unwarranted. Accordingly, the Application for Certificate of
Appealability (doc. 13) is denied.
DONE and ORDERED this 1st day of November, 2016.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

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