Brown v. Carter (INMATE 3)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

SOUTHERN DIVISION

ROBERT BROWN, # 212492, )

)

Petitioner, )

) Civil Action No.

v. ) 1:17cv243-ECM-JTA

) (WO)

KAREN CARTER, et al., )

)

Respondents. )

RECOMMENDATION OF THE MAGISTRATE JUDGE

This case is before the court on a pro se petition for writ of habeas corpus under 28

U.S.C. § 2254 filed by Alabama inmate Robert Brown (“Brown”) on April 17, 2017. Doc.

1.1

I. BACKGROUND AND PROCEDURAL HISTORY

On November 8, 2010, a Coffee County jury found Brown guilty of unlawfully

breaking and entering a vehicle, in violation of § 13A-8-11(b), Ala. Code 1975. Doc. 8-1

at 36. On November 29, 2010, the trial court sentenced Brown as a habitual felony offender

to twenty years and one day in prison. Doc. 8-1 at 39.

Brown appealed, arguing (1) there was insufficient evidence to support his

conviction and (2) the trial court erred by failing to instruct the jury on receiving stolen

1 References to “Doc(s).” are to the document numbers of the pleadings, motions, and other

materials in the court file, as compiled and designated on the docket sheet by the Clerk of Court.

Pinpoint citations are to the page of the electronically filed document in the court’s CM/ECF filing

system, which may not correspond to pagination on the “hard copy” of the document presented for

filing.

property in the third degree as a lesser-included offense of breaking and entering a vehicle.

Doc. 8-2.

On August 12, 2011, the Alabama Court of Criminal Appeals affirmed Brown’s

conviction and sentence by unpublished memorandum opinion. Doc. 8-4. Brown’s

application for rehearing was stricken as untimely filed (Doc. 8-5), and Brown did not file

a petition for writ of certiorari with the Alabama Supreme Court. On August 31, 2011, the

Alabama Court of Criminal Appeals issued a certificate of judgment. Doc. 8-6.

On November 22, 2011, Brown filed a pro se petition with the trial court seeking

post-conviction relief under Rule 32 of the Alabama Rules of Criminal Procedure, and he

later amended the petition. See Doc. 8-7 at 10, 33. Brown raised claims that (1) there was

insufficient evidence to support his conviction; (2) the trial court lacked jurisdiction

because neither the venire nor the petit jury was sworn; (3) his appellate counsel was

prevented from “examining for possible error a substantial and crucial portion of his trial”

because the jury selection was not included in the record on direct appeal; (4) the trial court

“acted vindictively” when it sentenced him; and (5) his trial counsel rendered ineffective

assistance by failing to (a) challenge the State’s “hearsay evidence;” (b) object to the State’s

failure to produce the stolen DVD player; (c) challenge breaks in the chain of custody of

evidence; (d) move to dismiss the charges because the victim “never swore to or signed the

complaint;” and (e) impeach the victim’s testimony. Doc. 8-7 at 12–17, 33–54.

After holding an evidentiary hearing on August 21, 2013, at which Brown was

represented by counsel (Doc. 8-7 at 78–118), the trial court entered an order denying

2

Brown’s Rule 32 petition in its entirety (Doc. 8-7 at 61–63). In its order, the trial court

found that (1) Brown’s claim challenging the sufficiency of the State’s evidence was

precluded under Ala. R. Crim. P. 32.2(a)(2) and (4), because the claim was raised at trial

and on direct appeal; (2) the sentencing judge acted within his discretion when imposing

Brown’s sentence; (3) Brown failed to establish that his trial counsel rendered ineffective

assistance under the standard of Strickland v. Washington, 466 U.S. 668 (1984); and (4)

Brown failed to plead and prove specific facts supporting his claim that the incompleteness

of the record on appeal prevented his appellate counsel from examining the record for

possible error. Doc. 8-7 at 61–63.

Brown appealed from the denial of his Rule 32 petition, pursuing his claim that the

trial court lacked jurisdiction because neither the venire nor the petit jury was sworn. Doc.

8-8. In addition, Brown argued that his trial counsel rendered ineffective assistance by

failing to (1) object that the complaint was not verified by the victim and (2) object to the

trial court’s vindictive sentence. Id. Brown also argued that his appellate counsel rendered

ineffective assistance by failing to raise the issue of the missing portions of the record. Id.

By order dated July 1, 2015, the Alabama Court of Criminal Appeals remanded

Brown’s case to the trial court with instructions for that court to make specific findings of

fact on whether the venire and petit jury were properly sworn before trial. Doc. 8-11. On

remand, the trial court issued an order finding that the venire was properly sworn and

included in the supplemental record the language used in swearing the venire. Doc. 8-13.

On February 5, 2016, on return to remand, the Alabama Court of Criminal Appeals issued

3

a memorandum opinion affirming the trial court’s denial of Brown’s Rule 32 petition. Doc.

8-17. Brown’s application for rehearing was overruled (Docs. 8-18 and 8-19), and on June

10, 2016, the Alabama Supreme Court denied his petition for writ of certiorari (Docs. 8-20

and 8-21). A certificate of judgment issued on that date. Doc. 8-21.

On February 11, 2016, while Brown’s first Rule 32 petition was pending in the

Alabama appellate courts, Brown filed a second Rule 32 petition in the trial court, this one

alleging that newly discovered evidence showed that the petit jury was not sworn before

trial. Doc. 8-22. On April 6, 2016, the trial court entered an order denying the second Rule

32 petition on grounds that his claim was precluded under Ala. R. Crim. P. 32.2(a)(2) and

(4). Doc. 8-22 at 39.

Brown appealed, pursuing the claim he raised in the second Rule 32 petition. On

September 1, 2017, the Alabama Court of Criminal Appeals issued a memorandum opinion

affirming the trial court’s denial of Brown’s second Rule 32 petition, finding that (1)

although Brown couched his claim as one of “newly discovered evidence,” his claim

actually challenged the trial court’s and the Alabama Court of Criminal Appeals’ rulings

on his previous Rule 32 petition; (2) a successive Rule 32 petition is not the proper vehicle

for challenging the dismissal of a previous Rule 32 petition; and (3) Brown’s claim was

not cognizable under any ground recognized in Ala. R. Crim. P. 32.1. See Docket of Coffee

County Circuit Court Case CC-09-95.61 (available via https://v2.alacourt.com/). Brown

did not apply for rehearing or file a petition for writ of certiorari. On November 22, 2017,

the Alabama Court of Criminal Appeals issued a certificate of judgment. Id.

4

On April 17, 2017, while his second Rule 32 petition was pending in the Alabama

appellate courts, Brown initiated this habeas action by filing a § 2254 petition in which he

presents the following claims:

1. There was insufficient evidence to support his conviction.

2. His trial counsel rendered ineffective assistance by failing to—

(a) “present a probable defense against the State’s case in chief;”

(b) request a proper lesser-included offense instruction; and

(c) object to the trial court’s failure to administer the oath to the petit

jury.

3. His appellate counsel rendered ineffective assistance by failing to—

(a) supplement the record on appeal with the portion of the record

containing the jury selection process; and

(b) argue the lesser-included offense issue on appeal.

4. The trial court acted with vindictiveness throughout the trial proceedings.

Doc. 1 at 5–8; Doc. 2 at 2–22; see Doc. 13.

Respondents have filed an answer and supplemental answer in which they argue the

claims in Brown’s § 2254 petition are procedurally defaulted because Brown failed to

present the claims to the state courts in accordance with the State’s procedural rules. Doc.

8 at 12–17; Doc. 11. Respondents further argue that, to the extent the state courts addressed

the merits of any of Brown’s claims, the state court decisions denying relief on the claims

were neither contrary to, nor unreasonable applications of, clearly established federal law.

Doc. 8 at 18–22.

5

Brown took advantage of the opportunity granted him to respond to Respondents’

answer. See Docs. 9 and 13. After reviewing the § 2254 petition, the parties’ submissions,

and the record, the court concludes that no evidentiary hearing is required and that Brown’s

petition is due to be denied under Rule 8(a), Rules Governing Section 2254 Cases in the

United States District Courts.

II. DISCUSSION

A. Procedural Default

1. Exhaustion Requirement

Before a § 2254 petitioner may obtain federal habeas corpus review, he must

“exhaust” his federal claims by raising them in the appropriate court, giving the state courts

an opportunity to decide the merits of the constitutional issue raised. See 28 U.S.C. §

2254(b)(1) & (c); Duncan v. Walker, 533 U.S. 167, 178–79 (2001). To exhaust a claim

fully, a petitioner must “invok[e] one complete round of the State’s established appellate

review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).

In Alabama, a complete round of the established appellate review process includes

an appeal to the Alabama Court of Criminal Appeals, an application for rehearing to that

court, and a petition for discretionary review—a petition for a writ of certiorari—filed in

the Alabama Supreme Court. See Smith v. Jones, 256 F.3d 1135, 1140–41 (11th Cir. 2001);

Ala. R. App. P. 39 & 40. The exhaustion requirement applies to state post-conviction

proceedings and to direct appeals. See Pruitt v. Jones, 348 F.3d 1355, 1359 (11th Cir.

2003).

6

Habeas claims not properly exhausted in the state courts are procedurally defaulted

if presentation of the claims in state court would be barred by state procedural rules. Gray

v. Netherland, 518 U.S. 152, 161–62 (1996); Coleman v. Thompson, 501 U.S. 722, 735 n.1

(1991). “[I]f the petitioner failed to exhaust state remedies and the court to which the

petitioner would be required to present his claims in order to meet the exhaustion

requirement would now find the claims procedurally barred[,] . . . there is a procedural

default for purposes of federal habeas.” Coleman, 501 U.S. at 735 n.1 (citations omitted);

see Henderson v. Campbell, 353 F.3d 880, 891 (11th Cir. 2003).

2. Adequate and Independent State Ground

Federal habeas review may also be unavailable for claims that a state appellate court

has rejected on state procedural grounds. Coleman, 501 U.S. at 729. “Federal review of a

petitioner’s claim is barred by the procedural-default doctrine if the last state court to

review the claim states clearly and expressly that its judgment rests on a procedural bar,

and that bar provides an adequate and independent state ground for denying relief.” Atkins

v. Singletary, 965 F.2d 952, 955 (11th Cir. 1992); see Marek v. Singletary, 62 F.3d 1295,

1301–02 (11th Cir. 1995).

By its very definition, the adequate and independent state-ground doctrine

requires the federal court to honor a state holding that is a sufficient basis for

the state court’s judgment, even when the state court also relies on federal

law. See Fox Film Corp. v. Muller, 296 U.S. 207, 210 (1935). Thus, by

applying this doctrine to habeas cases, [Wainwright v. Sykes, 433 U.S. 72

(1977)] curtails reconsideration of the federal issue on federal habeas as long

as the state court explicitly invokes a state procedural bar rule as a separate

basis for decision. In this way, a state court may reach a federal question

without sacrificing its interests in finality, federalism, and comity.

7

Harris v. Reed, 489 U.S. 255, 264 n.10 (1989).

3. Exceptions to Procedural Default

A habeas petitioner can overcome a procedural default either through showing cause

for the default and resulting prejudice, Murray v. Carrier, 477 U.S. 478, 488 (1986), or

establishing a “fundamental miscarriage of justice,” which requires a colorable showing of

actual innocence, Schlup v. Delo, 513 U.S. 298, 324–27 (1995).

“Cause” for a procedural default must ordinarily turn on whether the petitioner can

show that some objective factor external to the defense impeded efforts to comply with the

state’s procedural rules. Murray, 477 U.S. at 488; United States v. Frady, 456 U.S. 152,

170 (1982). In certain circumstances, counsel’s ineffectiveness in failing to preserve a

claim in state court may constitute sufficient cause to overcome procedural default of

another claim. Murray, 477 U.S. at 488–89. To establish “prejudice,” a petitioner must

show that the errors worked to his “actual and substantial disadvantage, infecting his entire

[proceeding] with error of constitutional dimensions.” Murray, 477 U.S. at 494 (internal

quotations and emphasis omitted).

Actual innocence is not an independent claim; rather, it is the “gateway” through

which a petitioner must pass before a court may consider constitutional claims that are

defaulted. Schlup, 513 U.S. at 315. This exception applies where a petitioner establishes

that “a constitutional violation has probably resulted in the conviction of one who is

actually innocent.” Murray, 477 U.S. at 496; Schlup, 513 U.S. at 321. “To establish actual

innocence, [a habeas petitioner] must demonstrate that . . . ‘it is more likely than not that

8

no reasonable juror would have convicted him.’” Bousley v. United States, 523 U.S. 614,

623 (1998) (quoting Schlup, 513 U.S. at 327–28). The standard exacted by Schlup “is

demanding and permits review only in the “extraordinary” case.” House v. Bell, 547 U.S.

518, 538 (2006). Schlup observes that

a substantial claim that constitutional error has caused the conviction of an

innocent person is extremely rare. . . . To be credible, such a claim requires

petitioner to support his allegations of constitutional error with new reliable

evidence—whether it be exculpatory scientific evidence, trustworthy

eyewitness accounts, or critical physical evidence—that was not presented at

trial. Because such evidence is obviously unavailable in the vast majority of

cases, claims of actual innocence are rarely successful.

513 U.S. at 324.

B. Brown’s Claims are Procedurally Defaulted.

1. Sufficiency of the Evidence

Brown contends there was insufficient evidence to support his conviction. Doc. 2

at 4–5, 9–15. Respondents assert that Brown has procedurally defaulted this claim. Doc.

8 at 12–15; Doc. 11 at 3–4. Specifically, Respondents argue that the claim was not

exhausted in the state courts in accordance with the State’s procedural rules and that the

claim is not capable of further presentation to the state courts due to state procedural rules.

Id.

The record reflects that one of Brown’s claims on direct appeal was that there was

insufficient evidence to support his conviction for unlawfully breaking and entering a

vehicle. See Doc. 8-4 at 3. The Alabama Court of Criminal Appeals considered this claim

on the merits and ruled there was sufficient evidence to support Brown’s conviction. Doc.

9

8-4 at 3–9. Although Brown filed an application for rehearing with the Alabama Court of

Criminal Appeals, the application was stricken as untimely filed. Doc. 8-5. Thereafter,

Brown filed no petition for writ of certiorari with the Alabama Supreme Court. Under the

circumstances, Brown failed to submit his sufficiency-of-the-evidence claim through a

complete round of Alabama’s established appellate review process. Therefore, he failed

to exhaust his claim in the state courts. See O’Sullivan, 526 U.S. at 845; Smith, 256 F.3d at

1140–41.

Brown may not return to the state courts to exhaust this claim. It is too late for him

to litigate this claim to completion in the state appellate courts by filing a timely application

for rehearing and, thereafter, pursuing certiorari review in the Alabama Supreme Court.2

The exhaustion and preclusion rules therefore coalesce into the procedural default of

Brown’s sufficiency-of-the-evidence claim.3 See Coleman, 501 U.S. at 735 n.1;

Henderson, 353 F.3d at 891.

2 Brown attempted to litigate his sufficiency-of-the-evidence claim via his first Rule 32 petition.

However, the trial court ruled that the claim was precluded under Ala. R. Crim. P. 32.2(a)(2) and

(4), because the claim was raised at trial and on direct appeal. Brown did not pursue the claim in

his appeal from the denial of his first Rule 32 petition.

3 In parts of his § 2254 petition, Brown frames his sufficiency-of-the-evidence claim as one

alleging a variance in the indictment and the proof produced at trial. See Doc. 2 at 4–5, 11–15.

According to Brown, the alleged variance deprived the trial court of jurisdiction to render the

verdict or impose a sentence. Id. Brown’s arguments in support of his variance claim, however,

are at bottom arguments challenging the sufficiency of the State’s evidence. To the extent that his

variance claim might touch on matters apart from those underlying his sufficiency-of-the-evidence

claim and might be said to raise a separate claim, his variance claim was not raised and exhausted

in the state courts and would no longer be pursuable in the state courts. Therefore, Brown’s

separate variance claim, to the extent he raises one, is procedurally defaulted for purposes of

federal habeas review.

10

This court afforded Brown an opportunity to demonstrate the existence of cause

excusing the procedural default of his claims. Doc. 9. In his response, however, Brown

does not argue cause for his failure to exhaust his sufficiency-of-the-evidence claim

through a complete round of Alabama’s established appellate review process.4 See Doc.

13. Thus, Brown cause not establish cause and prejudice to excuse this procedural default.

Elsewhere in his petition, Brown appears to suggest that he is actually innocent of

the offense of which he was convicted. See, e.g., Doc. 2 at 10, 18. However, Brown points

to no new reliable evidence—nor suggests that any exists—that could satisfy the difficult

standard for actual innocence set forth by the Supreme Court in Schlup. Instead, he

reargues the sufficiency of the evidence and the weight the jury afforded witness testimony,

while also presenting a misguided argument alleging a variance in the indictment and the

proof produced at trial. Arguments like Brown’s will not sustain a claim of actual

innocence. See Bousley, 523 U.S. at 623–24; Johnson v. Alabama, 256 F.3d 1156, 1171

(11th Cir. 2001) (explaining that claim of actual innocence must be supported by “reliable

evidence not presented at trial”); Rozzelle v. Sec’y, Florida Dep’t of Corr., 672 F.3d 1000,

1017–18 (11th Cir. 2012) (evidence is not considered “new” when the jury heard the

substance of virtually all such evidence); Rutledge v. Neilsen, 2012 WL 3778987 at *7

(M.D. Ala. 2012) (allegations going to sufficiency of and/or weight afforded the evidence

4 Brown makes a general assertion that his trial counsel’s ineffective assistance was “cause” for

his procedural defaults. See Doc. 13 at 5. Clearly, however, the performance of his trial counsel

(who was different from his counsel on appeal) could have no bearing on Brown’s failure to file a

timely application for rehearing with the Alabama Court of Criminal Appeals or to petition the

Alabama Supreme Court for certiorari review.

11

do not constitute “new reliable evidence” regarding petitioner’s actual innocence). Brown

fails to make the requisite showing of actual innocence.

As Justice O’Connor emphasized in Schlup, the Supreme Court strove to “ensure

that the actual innocence exception remains only a safety valve for the extraordinary case.”

Schlup, 513 U.S. at 333 (O’Connor, J., concurring) (internal quotation marks omitted).

Brown’s is not such a case. Because the actual innocence exception does not apply,

Brown’s sufficiency-of-the-evidence claim is precluded from federal habeas review.

2. Ineffective Assistance of Trial Counsel

In his § 2254 petition, Brown contends that his trial counsel rendered ineffective

assistance by failing to (1) “present a probable defense against the State’s case in chief;”

(2) request a proper lesser-included offense instruction; and (3) object to the trial court’s

failure to administer the oath to the petit jury. Doc. 2 at 5–9, 19–21. Respondents argue

that Brown procedurally defaulted these claims because they were not raised and properly

exhausted in the state courts. See Doc. 8 at 12–17. This court agrees, because the

allegations of ineffective assistance of trial counsel that Brown asserts in his § 2254 petition

were not the ones he asserted in his first Rule 32 petition. In that Rule 32 petition, Brown

argued that his trial counsel rendered ineffective assistance by failing to (1) challenge the

State’s hearsay evidence; (2) object to the State’s failure to produce the stolen DVD player

at trial; (3) challenge breaks in the chain of custody of evidence; (4) move to dismiss the

charges on grounds the victim never swore to or signed the complaint; and (5) impeach the

victim’s testimony. See Doc. 8-7 at 12–17, 33–54.

12

In Martinez v. Ryan, 562 U.S. 1 (2012), the Supreme Court held that “[w]here, under

state law, claims of ineffective assistance of trial counsel must be raised in an initial-review

collateral proceeding, a procedural default will not bar a federal habeas court from hearing

a substantial claim of ineffective assistance at trial if, in the initial-review collateral

proceeding, there was no counsel or counsel in that proceeding was ineffective.”5

Martinez, 562 U.S. at 17. In Trevino v. Thaler, 569 U.S. 413 (2013), the Supreme Court

extended the holding of Martinez to cases where, as a matter of systemic operation, the

first opportunity to challenge trial counsel’s effectiveness is in state post-conviction

proceedings. Trevino, 569 U.S. at 423–29. To demonstrate cause in circumstances where

Martinez and Trevino apply, a petitioner must establish (1) a substantial claim of

ineffective assistance of trial counsel; (2) the cause for failing to exhaust the claim is

ineffective post-conviction counsel or no post-conviction counsel in the initial-review

collateral proceeding; (3) the state collateral proceeding was the initial opportunity to

review the claim regarding trial counsel’s performance; and (4) applicable state law

requires, either by law or as a practical matter, that ineffective assistance of trial counsel

claims be raised in the initial post-conviction proceeding. Trevino, 569 U.S at 423;

5 The Court in Martinez created a narrow exception to the rule set forth in Coleman v. Thompson,

501 U.S. 722, 753-54 (1991), that an attorney’s errors in a post-conviction collateral proceeding

do not constitute cause to excuse a procedural default. The Court limited its ruling to ineffective-

assistance-of-trial-counsel claims in initial-review collateral proceedings. Martinez, 562 U.S. at

15–17. The ruling does not provide a gateway to federal habeas review of attorney errors in other

proceedings. “It does not extend to attorney errors in any proceeding beyond the first occasion the

State allows a prisoner to raise a claim of ineffective assistance at trial, even though that initial-

review collateral proceeding may be deficient for other reasons.” Id. at 16.

13

Martinez, 562 U.S. at 13–18. If a petitioner can establish cause under Martinez, he still

must establish prejudice as a result of the defaulted ineffective assistance of trial counsel

claim, that is, but for the error, there is a reasonable probability that the result of the

proceeding would have been different. See Martinez, 562 U.S. at 18 (remanding the

questions “whether [Petitioner’s] attorney in his first collateral proceeding was ineffective

[and] whether his claim of ineffective assistance of trial counsel is substantial. And the

court [of appeals] did not address the question of prejudice.”); see also Trevino, 569 U.S.

at 429 (remanding the questions “whether Trevino’s claim of ineffective assistance of trial

counsel is substantial [and] whether Trevino’s initial state habeas attorney was

ineffective”).

Alabama courts have recognized that, although it may be possible for appellate

counsel to raise claims of ineffective assistance of trial counsel on direct appeal where

appellate counsel is able to review the trial transcript to ascertain if such a claim is viable

and then present the claim in a timely motion for new trial, see Ex parte Ingram, 675 So.

2d 863, 865–66 (Ala. 1996), often, the first time a defendant can reasonably raise a claim

of ineffective assistance of trial counsel is in an Alabama Rule 32 petition, i.e., in an initial-

review collateral proceeding. See Ex parte Ingram, 675 So. 2d at 865–66; V.R. v. State,

852 So. 2d 194, 201–02 (Ala. Crim. App. 2002). This court will assume, for purposes of

Brown’s claims, that Brown’s first reasonable opportunity to present his claims of

ineffective assistance of trial counsel was in his first Rule 32 petition. Thus, the court will

apply Martinez’s holding to Brown’s claims of ineffective assistance of trial counsel. See

14

Trevino, 569 U.S. at 429 (“[W]here, as here, state procedural framework, by its design and

operation, makes it highly unlikely in a typical case that a defendant will have a meaningful

opportunity to raise a claim of ineffective assistance of trial counsel on direct appeal, our

holding in Martinez applies.”). Accordingly, this court will address whether Brown’s

claims of ineffective assistance of trial counsel are substantial.

a. Failure to present probable defense

Brown claims his trial counsel rendered ineffective assistance by failing to “present

a probable defense against the State’s case in chief.” Doc. 2 at 5–6. However, the defense

Brown says his counsel should have pursued—challenging the State’s proof that Brown

broke into a vehicle to obtain the stolen property—was in fact pursued by Brown’s counsel

through counsel’s cross-examination of witnesses and in counsel’s argument in support of

a motion for judgment of acquittal. See, e.g., Doc. 8-1 at 77–78, 88, 91–92.

A claim of ineffective assistance of counsel is evaluated against the two-part test

announced by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). First,

a petitioner must show that “counsel’s representation fell below an objective standard of

reasonableness.” Id. at 689. Second, the petitioner must show that “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different.” Id. at 694; see Chandler v. United States, 218 F.3d 1305, 1313 (11th

Cir. 2000). Here, Brown demonstrates neither deficient performance nor resulting

prejudice from his trial counsel’s alleged failure to present a defense against the State’s

case. Consequently, this ineffective-assistance-of-counsel claim lacks merit. Thus, the

15

claim is not a “substantial” claim, and Brown does not establish cause excusing his default

of his claim that trial counsel was ineffective in this regard.

b. Lesser-included offense instruction

Brown claims his trial counsel rendered ineffective assistance by failing to request

a proper lesser-included offense instruction. Doc. 2 at 6–7, 13. Although it is unclear from

Brown’s argument just what lesser-included offense instruction he believes his counsel

should have requested, it appears that Brown contends his counsel should have sought a

jury instruction on theft of property in the third degree (Brown describes the offense as

“larceny”) as proscribed by § 13A-8-5(a), Ala. Code 1975.6 See Doc. 2 at 13.

The record reflects that, during the charge conference, Brown’s trial counsel argued

that Brown was entitled to have the jury instructed on receiving stolen property in the third

degree7 as a lesser-included offense of unlawfully breaking and entering a vehicle, the

charge in the indictment. Doc. 8-1 at 97–98. Counsel’s theory, in arguing for this

instruction, was that Brown may merely have received stolen property, a DVD player taken

from the victim’s vehicle, and did not commit an actual theft by breaking into the vehicle

and taking the DVD player.8 Id. The trial court refused the requested instruction on

6 At the time of Brown’s trial, theft of property in the third degree was classified as a Class A

misdemeanor. § 13A-8-5(b), Ala. Code 1975.

7 At the time of Brown’s trial, receiving stolen property in the third degree was classified as a Class

A misdemeanor. § 13A-8-19(b), Ala. Code 1975.

8 Section 13A-8-11, Ala. Code 1975, provides:

16

receiving stolen property, stating that the only evidence on the issue tended to show that

Brown obtained the DVD player by breaking into the vehicle, and there was no evidence

presented tending to show that Brown merely received the DVD player from someone else.

Id.

On appeal, Brown’s appellate counsel argued that the trial court erred by failing to

instruct the jury on receiving stolen property in the third degree as a lesser-included offense

of breaking and entering a vehicle. See Doc. 8-2. The Alabama Court of Criminal Appeals

rejected the claim (see Doc. 8-4 at 3–13), holding that receiving stolen property is not a

lesser-included offense of theft of property9 and agreeing also with the trial court that the

evidence did not support a jury instruction on receiving stolen property:

[E]ven if receiving stolen property were a lesser-included offense of breaking

and entering a vehicle, there was no rational basis for a verdict convicting

Brown of receiving stolen property. “The basis of a charge on a lesser-

included offense must be derived from the evidence presented at trial and

cannot be based on speculation or conjecture. Boyd v. State, 699 So. 2d 967

(Ala. Cr. App. 1997).” Broadnax v. State, 825 So. 2d 134, 200 (Ala. Crim.

App. 2000). The State presented sufficient evidence for the jury to conclude

A person commits the crime of unlawful breaking and entering a vehicle if, without

the consent of the owner, he breaks into and enters a vehicle or any part of a vehicle

with the intent to commit any felony or theft. For the purposes of this section,

“enters” means to intrude:

(1) Any part of the body; or

(2) Any physical object connected with the body.

(3) Unlawful breaking and entering a vehicle is a Class C felony.

§ 13A-8-11(b), Ala. Code 1975.

9 The intent to commit any felony or theft is an element of unlawfully breaking and entering a

vehicle. § 13A-8-11(b), Ala. Code 1975.

17

that Brown stole the DVD player from [the victim’s] vehicle and there was

no evidence presented tending to show that Brown merely received the DVD

player as stolen property. The circuit court was not required to instruct the

jury on the charge of receiving stolen property based on the purely

speculative possibility that Brown merely received stolen property rather

than committed the actual theft of the DVD player. The circuit court did not

err in denying Reed the jury charge of third-degree receiving stolen property.

Doc. 8-4 at 13.

Brown’s present suggestion that his trial counsel should have sought a jury

instruction on third-degree theft of property as a lesser-included offense of breaking and

entering a vehicle is subject to an opposing argument similar to those that the trial court

and the Alabama Court of Criminal Appeals applied to his claim that he was entitled to a

jury instruction on receiving stolen property: the only evidence on the issue tended to show

that Brown obtained the DVD player by breaking into the vehicle; there was no evidence

presented that tended to show Brown obtained the DVD player (by theft) without having

broken into the vehicle. Thus, Brown fails to make a case that he was entitled to have the

jury instructed on third-degree theft of property.

Moreover, Brown shows no reasonable likelihood that, had the jury been instructed

on third-degree theft of property as a lesser-included offense of unlawfully breaking and

entering a vehicle, it would have returned a verdict finding him guilty of the lesser offense

instead of the charge in the indictment. See Magnotti v. Sec’y for Dep't of Corr., 222 F.

App’x. 934, 940 (11th Cir. 2007) (“[T]he evidence presented at Magnotti’s trial was

sufficient to sustain a conviction for robbery. As such, even assuming without deciding

that Magnotti’s counsel was deficient in failing to request jury instructions on other lesser

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included offenses, that deficiency does not suggest that there was a reasonable probability

that the outcome would have been different because the jury had sufficient evidence to find

Magnotti guilty of the greater offense of robbery.”); Harris v. Crosby, 151 F. App’x. 736,

738 (11th Cir. 2005) (holding that habeas petitioner could not demonstrate prejudice

resulting from counsel’s failure to request instruction on lesser-included offense because

“[the petitioner’s] assertions that he would have been convicted of the lesser included

offense, as opposed to the greater offense, are pure speculation—speculation both that the

state trial court would have decided to instruct the jury on the lesser included offense and

that the jury, if instructed on the lesser included offense, would have convicted on it instead

of the higher offense. That speculation is insufficient to undermine our confidence in the

outcome of his trial.”).

Brown demonstrates neither deficient performance nor resulting prejudice from his

trial counsel’s failure to request that the jury be instructed on theft of property in the third

degree as a lesser-included offense of the charge in the indictment. Consequently, this

ineffective-assistance-of-counsel claim lacks merit. The claim is not a “substantial” claim,

and Brown does not establish cause excusing his default of his claim that trial counsel

rendered ineffective assistance in this regard.

c. Swearing of petit jury

Brown says his trial counsel was ineffective for failing to object to the trial court’s

failure to administer the oath to the petit jury. See Doc. 2 at 8. The record is silent as to

the swearing of the petit jury, although the record reflects that the venire members were

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administered their oath before voir dire examination. See Doc. 8-13 at 5. This issue was

the subject of the Alabama Court of Criminal Appeals’ remand order in Brown’s appeal

from the denial of his first Rule 32 petition. See Doc. 8-11. On remand, the trial court

issued an order finding that the venire was properly sworn and included in the supplemental

record the language used in swearing the venire. Doc. 8-13 at 2–5.

Brown fails to show how he was prejudiced by his trial counsel’s failure to object

to the trial court’s alleged failure to swear the petit jury. Alabama case law suggests that

where the record affirmatively shows that the venire members were administered their oath

before voir dire examination, a subsequent failure to administer the oath of service to

members of the sitting petit jury may constitute harmless error. See Ex parte Borden, 769

So. 2d 950, 955 (Ala. 2000); Morris v. State, 60 So. 3d 326, 384 (Ala. Crim. App. 2010).

See also Borden v. Thomas, 2012 WL 3030519, at *20 (N.D. Ala. 2012); Knight v.

Patterson, 2012 WL 2417342, at *14–15 (S.D. Ala. 2012). Moreover, Brown does not

allege, much less show, that an unsworn juror somehow affected the outcome of his trial

as a result of being unsworn. Therefore, he has not established the prejudice element of

Strickland with respect to this claim of ineffective assistance of trial counsel. See Lynch v.

Thomas, 2014 WL 5113623, at *1 (M.D. Ala. 2014); Griffin v. Sec’y, Dep’t of Corr., 2016

WL 5146611, at *17 (M.D. Fla. 2016); Green v. Crosby, 2004 WL 5136978, at *4 (S.D.

Fla. 2004). See also Barnett v. Daniels, 2017 WL 3611726, at *7 (M.D. Ala. 2017); Lamar

v. Hetzel, 2014 WL 2569030, at *35 (S.D. Ala. 2014).

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The Supreme Court in Strickland stated, “If it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will

often be so, that course should be followed.” 466 U.S. at 697. Here, Brown fails to satisfy

the prejudice prong of the Strickland standard. Consequently, this ineffective-assistance-

of-counsel claim lacks merit. Thus, the claim is not a “substantial” one, and Brown does

not establish cause excusing his default of this claim that trial counsel rendered ineffective

assistance.

* * * * * *

Because, as set out above, Brown does not establish cause excusing his default of

his claims that trial counsel rendered ineffective assistance and he also fails to show that

the actual innocence exception applies to him, Brown’s claims of ineffective assistance of

trial counsel are precluded from federal habeas review.

3. Ineffective Assistance of Appellate Counsel

Brown contends that his appellate counsel rendered ineffective assistance by (1)

failing to supplement the record on direct appeal with the portion of the record containing

the jury selection process, and (2) failing to argue the lesser-included offense issue on

appeal. See Doc. 2 at 9, 15–16.

a. Failure to supplement record on appeal

On appeal from the denial of his first Rule 32 petition, Brown claimed that his

appellate counsel was ineffective for failing to supplement the record on direct appeal with

missing portions of the record or to argue the issue of the missing portions of the record.

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See Doc. 8-8. The Alabama Court of Criminal Appeals held that this claim was not

preserved for appellate review, stating:

Brown also argues on appeal that his appellate counsel was ineffective for

failing to raise the issue of the missing portions of the record. However, in

his petition, Brown argued that the court reporter was under a duty to fully

record his trial and that he was denied his rights because his appellate counsel

was not provided with a complete record in order to search for plain errors

or defects that affected his substantial rights. He argued that he was denied

his right to a record on appeal. He did not raise an ineffective assistance of

counsel claim on this ground and does so for the first time on appeal. “‘We

will not make exception to the rule that a claim for ineffective assistance of

counsel may not be considered on appeal if it was not first presented to the

trial court.’” Brown v. State, 701 So. 2d 314, 319–20 (Ala. Crim. App. 1997),

quoting Ex parte Jackson, 598 So. 2d 895, 897 (Ala. 1992), overruled on

other grounds, Ex parte Ingram, 675 So. 2d 863, 865 (Ala. 1996). Therefore,

this matter is not properly raised on appeal.

Doc. 8-17 at 4.

As previously indicated, federal review of a petitioner’s claim is barred by the

procedural default doctrine if the last state court to review the claim states clearly and

expressly that its judgment rests on a procedural bar, and that bar “provides an adequate

and independent state ground for denying relief.” Atkins, 965 F.2d at 955. The Alabama

Court of Criminal Appeals based its ruling that Brown’s claim was not properly raised on

appeal on the adequate and independent state procedural ground that issues not raised in

the lower court in a Rule 32 petition cannot be raised for the first time on appeal from the

denial of the Rule 32 petition. This procedural bar is firmly established and regularly

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followed by Alabama appellate courts.10 See, e.g., Boyd v. State, 913 So. 2d 1113, 1144

(Ala. Crim. App. 2003); McGahee v. State, 885 So. 2d 191, 224 (Ala. Crim. App. 2003);

Arrington v. State, 716 So.2d 237, 239 (Ala. Crim. App. 1997). Because the last state court

to review Brown’s claim of ineffective assistance of appellate counsel stated clearly and

expressly that its judgment rested on a procedural bar, the claim is procedurally defaulted.

Atkins, 965 F.2d at 955. And because Brown does not establish that either the cause-and-

prejudice or actual-innocence exception applies to this claim,11 the claim is foreclosed from

federal habeas review.

b. Failure to argue lesser-included offense issue on appeal

Brown claims that his appellate counsel rendered ineffective assistance by failing to

argue the (previously discussed) lesser-included offense issue on appeal. Doc. 2 at 15–16.

Brown raises this claim of ineffective assistance of counsel for the first time in his § 2254

petition. The claim was never presented to the state courts. Therefore, Brown failed to

exhaust the claim in state court. See Pruitt, 348 F.3d at 1359. Brown may not return to

the state courts to exhaust this claim. If he were to raise the claim in a Rule 32 petition,

the petition would be deemed successive under Ala. R. Crim. P. 32.2(b). Moreover, such

10 In order to bar federal review, the state procedural bar must have been “firmly established and

regularly followed” at the time of the alleged default. Ford v. Georgia, 498 U.S. 411, 424 (1991).

11 Brown makes no viable argument for cause excusing this default, and as previously indicated,

his claim of actual innocence is also not viable. The holding in Martinez v. Ryan does not provide

a gateway to federal habeas review of this claim, as Martinez applies only to claims of ineffective

assistance of trial counsel that were defaulted in the initial-review collateral proceeding, i.e. (for

Brown’s purposes), by not being raised in the Rule 32 petition. See 562 U.S. at 16.

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a petition would be untimely under Ala. R. Crim. P. 32.2(c). The exhaustion and preclusion

rules therefore coalesce into the procedural default of this ineffective assistance of counsel

claim. Coleman, 501 U.S. at 735 n.1; Henderson, 353 F.3d at 891. Brown makes no viable

argument for cause excusing this default, and as previously indicated, he has not

demonstrated his actual innocence. For these reasons, the claim is foreclosed from federal

habeas review.

4. Vindictive Trial Court

Brown claims that the trial court acted with vindictiveness throughout his trial

proceedings. See Doc. 2 at 2. Although Brown argued in his first Rule 32 petition that the

trial court acted vindictively when it sentenced him, on appeal from the denial of that Rule

32 petition, he did not pursue the matter as a substantive claim, but rather argued for the

first time that his trial and appellate counsel were ineffective for failing to raise a claim that

his sentence was vindictively imposed. See Doc. 8-8. The merits of the substantive claim

of the trial court’s alleged vindictiveness throughout trial were not addressed by the

Alabama Court of Criminal Appeals in Brown’s appeal from the denial of the Rule 32

petition, although that court noted there was no indication of bias or vindictiveness by the

trial court and that Brown’s sentence was within the statutory range.12 Doc. 8-17 at 5.

12 With specific regard to the question of whether Brown’s sentence indicated vindictiveness by

the trial court, the Alabama Court of Criminal Appeals quoted with approval from the following

findings of the Rule 32 court:

“The record indicates that the defendant had twelve prior felony convictions

and that the possible sentence range for his conviction was a minimum of

fifteen years and a maximum of 99 years or life. Following a sentencing

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Elsewhere in its memorandum opinion, the Alabama Court of Criminal Appeals stated that

any issues Brown had raised in his Rule 32 petition but then failed to argue on appeal from

the denial of the petition were considered abandoned. Doc. 8-17 at 7.

By failing to pursue his substantive “vindictiveness” claim in his appeal from the

denial of his Rule 32 petition, Brown failed to exhaust the claim in state court. See Pruitt,

348 F.3d at 1359. Brown may not return to the state courts to exhaust this claim. It is too

late to raise the claim in a direct appeal, and if he were to try to raise the claim in a Rule

32 petition, various state procedural bars would preclude consideration of the claim. See

Ala.R.Crim.P. 32.2(b), 32.2(c), 32.2(a) (3), and 32.2(a)(5). Once again, the exhaustion and

preclusion rules coalesce into the procedural default of Brown’s claim. Coleman, 501 U.S.

at 735 n.1; Henderson, 353 F.3d at 891. Brown makes no viable argument for cause

excusing this default, and he has not demonstrated his actual innocence. The claim is

therefore foreclosed from federal habeas review.

hearing, the trial judge, Judge Robert Barr, sentenced the defendant to 20

years and one day. Though the sentencing guidelines recommended a

sentence ranging from seventy-six to one hundred fifteen months, Judge

Barr made it clear that he was imposing a more stringent sentence because

of the defendant’s extensive criminal history and his belief that he would

likely reoffend if granted a lesser sentence. Judge Barr’s comments to the

defendant suggest only that he exercised the discretion afforded to him as a

sentencing judge and if anything, confirm that he showed restraint by

sentencing the defendant to a term far less than the maximum sentence

available.”

(C. 62.) The circuit court’s findings are supported by the record.

Doc. 8-17 at 6 (footnote omitted).

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Even if Brown’s claim were reviewable, it entitles him to no relief. Brown fails to

set forth facts or point to evidence in the record to support his assertion that the trial court

acted with vindictiveness throughout his trial. Brown’s conclusory and unsupported

allegations do not provide a basis for habeas relief.

III. CONCLUSION

Accordingly, it is the RECOMMENDATION of the Magistrate Judge that the

petition for writ of habeas corpus under 28 U.S.C. § 2254 be DENIED and this case be

DISMISSED with prejudice.

It is further

ORDERED that the parties shall file any objections to this Recommendation on or

before January 10, 2020. A party must specifically identify the factual findings and legal

conclusions in the Recommendation to which objection is made; frivolous, conclusive, or

general objections will not be considered. Failure to file written objections to the

Magistrate Judge’s findings and recommendations under the provisions of 28 U.S.C.

§ 636(b)(1) shall bar a party from a de novo determination by the District Court of legal

and factual issues covered in the Recommendation and waives the right of the party to

challenge on appeal the District Court’s order based on unobjected-to factual and legal

conclusions accepted or adopted by the District Court except upon grounds of plain error

or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982); 11TH CIR. R.

3-1. See Stein v. Lanning Securities, Inc., 667 F.2d 33 (11th Cir. 1982). See also Bonner

v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc).

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DONE this 20th day of December, 2019.

/s/ Jerusha T. Adams

JERUSHA T. ADAMS

UNITED STATES MAGISTRATE JUDGE

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