Tate v. Hetzel

Filing 20

ORDER ADOPTING 18 REPORT AND RECOMMENDATION. Pet's 1 Petition for Writ of Habeas Corpus is DENIED. The Court further finds that the Pet is not entitled to issuance of a Cert. of Appealability. Signed by Judge Callie V. S. Granade on 3/11/2013. (copy mailed to Pet on 3/11/13) (tot)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
FRANK EARHEART TATE,

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Petitioner,
v.
GARY HETZEL,
Respondent.

Civil Action No. 12-0291-CG-M

ORDER
After due and proper consideration of all portions of this file deemed relevant
to the issue raised, and a de novo determination of those portions of the
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 this Court, with the following additional discussion. It is ORDERED that
petitioner’s petition for habeas corpus relief is hereby DENIED.
DISCUSSION
Section 2254(b)(1) provides that a prisoner in state custody shall not be
granted a writ of habeas corpus unless the prisoner “has exhausted the remedies
available in the courts of the State.” 28 U.S.C. § 2254(b)(1) (2006). “In other words,
the state prisoner must give the state courts an opportunity to act on his claims
before he presents those claims to a federal court in a habeas petition.” O’Sullivan
v. Boerckel, 526 U.S. 838, 842 (1999). A state prisoner’s failure to present his
claims to the state courts in the proper manner results in a procedural default of
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those claims. Id. at 848.
Following his conviction and direct appeal, Tate sought Rule 32 relief in the
Circuit Court of Dallas County. The circuit court denied Tate’s petition, and Tate
appealed to the Alabama Court of Criminal Appeals. However, after the Court of
Criminal Appeals affirmed the denial of his petition, Tate sought neither rehearing
by the appellate court nor certiorari from the Alabama Supreme Court. The claims
raised by Tate’s Rule 32 petition are therefore procedurally defaulted, unless Tate
can establish “both cause for his noncompliance and actual prejudice resulting
therefrom.” Booker v. Wainwright, 764 F.2d 1371, 1376 (11th Cir. 1985).
As evidence of cause, Tate represents that shortly after the denial of his
petition by the Court of Criminal Appeals, his attorney advised him that he was
excused from having to petition for a writ of certiorari because, in his case, seeking
the writ would have been “futile.”1 (Doc. 19 at 10, 12)
However, this argument fails because criminal defendants have no
constitutional right to an attorney in state post-conviction proceedings, Henderson
v. Campbell, 353 F.3d 880, 892 (11th Cir. 2003) (citing Coleman v. Thompson, 501
U.S. 722, 752 (1991)), nor a constitutional right to counsel on discretionary appeals,2
Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (stating that the “right to
appointed counsel extends to the first appeal of right, and no further”). “Congress

Citing 28 U.S.C. 2254(b)(1)(B), which excuses a petitioner from exhaustion of state
remedies if “there is an absence of available State corrective process,” counsel
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Review by the Alabama Supreme Court is discretionary. Ala. R. App. P. 39(a)
(“Certiorari review is not a matter of right, but of judicial discretion.”)
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codified this rule by enacting § 2254(i), which provides that ‘[t]he ineffectiveness or
incompetence of counsel during Federal or State collateral post-conviction
proceedings shall not be a ground for relief in a proceeding arising under section
2254.’” Henderson, 353 F.3d at 892; see also Coleman, 501 U.S. at 757 (“Because
[Petitioner] had no right to counsel to pursue his appeal in state habeas, any
attorney error that led to the default of [Petitioner’s] claims in state court cannot
constitute cause to excuse the default in federal habeas.”).
Because any ineffectiveness of Tate’s Rule 32 counsel cannot be considered
cause for purposes of excusing the procedural default that occurred at the state
collateral post-conviction level, Tate has failed to establish cause for his procedural
default of his third and fourth claims, and also has failed to establish that a denial
of review constitutes a fundamental miscarriage of justice. This Court may
therefore not consider the merits of these claims pursuant to Boerckel, 526 U.S. at
848 (a prisoner who fails to present his claims in a petition for discretionary review
to a state court of last resort has not properly presented his claims and, therefore,
they are procedurally defaulted).
CONCLUSION
It is ORDERED that habeas corpus petition filed by Frank Earhart Tate is
hereby DENIED. The court further finds that the Petitioner is not entitled to
issuance of a Certificate of Appealability.
/s/ Callie V. S. Granade
UNITED STATES DISTRICT JUDGE

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