Underwood v. Estes (INMATE 3)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

JOHN UNDERWOOD, # 167873, )

)

Petitioner, )

) CIVIL ACTION NO.

v. ) 2:18-cv-891-MHT-CSC

) (WO)

DEWAYNE ESTES, et al., )

)

Respondents. )

RECOMMENDATION OF THE MAGISTRATE JUDGE

Before the Court is a petition for writ of habeas corpus under 28 U.S.C. § 2254 filed

on October 11, 2018, by John Underwood, an Alabama inmate proceeding pro se. Doc. 1.1

Underwood challenges his 2000 Autauga County convictions for first-degree robbery and

first-degree theft of property. For the reasons discussed below, the Court finds that

Underwood’s petition should be denied without an evidentiary hearing and that this case

should be dismissed with prejudice.

I. BACKGROUND

In November 2000, an Autauga County jury found Underwood guilty of first-degree

robbery and first-degree theft of property, violations of ALA. CODE §§ 13A-8-41(a) (1)

and 13A-8-7, respectively. Doc. 9-1 at 24–25. On December 13, 2000, the trial court

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.

sentenced Underwood, as a habitual offender, to life in prison without the possibility of

parole on the robbery charge. See ALA. CODE § 13A-5-9(c)(3). Doc. 9-1 at 514.

Underwood appealed, arguing that the trial court erroneously denied his motions for

judgment of acquittal because the State presented insufficient corroborating evidence to

support his convictions based on the testimony of his codefendants. Doc. 9-3. In an opinion

issued on September 28, 2001, the Alabama Court of Criminal Appeals rejected

Underwood’s claims and affirmed his convictions. Doc. 9-11; see Underwood v. State, 834

So.2d 819 (Ala. Crim. App. 2001). In its opinion, the Alabama Court of Criminal Appeals

summarized the trial evidence as follows:

I. First–Degree Theft of Property

On November 8, 1999, perpetrators broke into the Thweatts’ house in

Prattville and stole, among other things, assorted jewelry, a pistol, and a

trumpet. Brandon Cargile, Underwood’s codefendant, testified that the theft

was Underwood’s idea, and that Underwood broke the window in the door

in order to gain entry to the home. Cargile testified that he and Underwood

committed the theft and that they then walked down the street to a grocery

store. Cargile testified that he waited in the parking lot with the stolen goods

while Underwood retrieved his girlfriend’s car and picked Cargile up.

The State also presented evidence that, on November 25, 1999,

Officer Ron Boles arrested Underwood at the Relax Inn in Montgomery.

Boles testified that, at the time Underwood was arrested, his girlfriend was

in the hotel room and she was wearing a high-school class ring inscribed with

Mrs. Thweatt’s maiden name. At trial, Mrs. Thweatt later identified the ring

as the one stolen from her home. Underwood’s girlfriend consented to the

search of her vehicle. In her vehicle, the police found a trumpet, which Mr.

and Mrs. Thweatt identified at trial as having been stolen from their home.

Officer Boles testified that, from Underwood’s girlfriend’s car, he also

recovered a box filled with other articles, including jewelry and Christmas

ornaments, that the Thweatts identified at trial as items stolen during the

burglary of their home.

Additionally, Officer Boles testified that, upon his arrest at the Relax

Inn, Underwood assured Officer Boles that he could recover the missing

pistol. Underwood was released on bond to allow him to recover the pistol.

A few days later, Clemon Motley saw Officer Boles in his neighborhood,

approached Officer Boles, and told him that Underwood had come to his

home and attempted to sell Motley a pistol. Officer Boles met with Motley

and set up a controlled transaction between Motley and Underwood. Officer

Boles gave Motley $100 in cash, which Officer Boles had photocopied, to

purchase the pistol from Underwood. The next day, Motley paged Officer

Boles to inform him that Underwood was on the way to Motley’s to sell the

pistol. Motley purchased the pistol from Underwood and immediately paged

Officer Boles again to inform him that the transaction was complete. Driving

to Motley’s home, Officer Boles spotted Underwood walking down the

street. Underwood had in his possession $40 of the money Officer Boles had

provided to Motley; he was rearrested. Motley turned the pistol over to

Officer Boles. At trial, Officer Boles identified the marked money and the

pistol recovered from Motley; Motley and his girlfriend testified about the

controlled transaction and identified the pistol; and Mr. Thweatt identified

the pistol as the one stolen from his home.

* * * * *

II. First–Degree Robbery

In the evening of November 20, 1999, Eva Pierce was working as a

clerk at the Big Bass Store in Autauga County. Two men entered the store

and, at gunpoint, took money from the register, stole Pierce’s purse, and

ripped the telephone out of the wall before leaving.

The codefendants’ testimony varied. Cargile testified that he,

Underwood, Demeko Powell, and Travis Powell went to Big Bass, but that

Underwood did not go into the store and commit the actual robbery. Cargile

also testified that, although the Powell brothers committed the robbery while

he and Underwood waited in the car, the robbery was Underwood’s idea, that

Underwood provided the gun, and that Underwood drove the perpetrators to

the store in his girlfriend’s car. Demeko Powell testified that he drove

Underwood’s girlfriend’s car to Big Bass, that Underwood provided the gun,

and that he and his brother, not Underwood, went into the store and

committed the robbery.

At trial, Eva Pierce identified Underwood as one of the robbers who

entered the store. Pierce testified that she got a good look at the robber’s face

and that she was “fairly sure,” that is, 80% to 95% sure, that Underwood was

one of the robbers who entered the store.

Underwood, 834 So.2d at 821–22.

The Alabama Court of Criminal Appeals held that the State presented sufficient

corroborating evidence of Cargile’s and Powell’s testimony to support both of

Underwood’s convictions. 834 So.2d at 822–23. Despite affirming Underwood’s

convictions, the Alabama Court of Criminal Appeals remanded his case to the trial court

for resentencing, because the record reflected that the trial court had neglected to sentence

Underwood for the theft conviction. Id. at 820, 823; see Doc. 9-11.

On November 20, 2001, the trial court sentenced Underwood, as a habitual offender,

to 20 years in prison for the theft conviction. See ALA. CODE § 13A-5-9(c)(2). On January

25, 2002, on return to remand, the Alabama Court of Criminal Appeals affirmed the trial

court’s judgment. Doc. 9-12. Underwood’s application for rehearing was overruled by the

Alabama Court of Criminal Appeals, and his petition for writ of certiorari was denied by

the Alabama Supreme Court. A certificate of judgment was issued on May 17, 2002. Doc.

9-13.

Almost 15 years later, on February 13, 2017, Underwood filed a petition in the trial

court seeking post-conviction relief under Rule 32 of the Alabama Rules of Criminal

Procedure. Doc. 9-2 at 6–22. In his petition, Underwood claimed that newly discovered

evidence existed that required that his convictions be vacated. Specifically, Underwood

asserted that his codefendant Brandon Cargile2 had recently recanted his trial testimony

implicating Underwood in the crimes. Doc. 9-2 at 15–22. Underwood argued that his

convictions were illegally obtained through the perjured testimony of Cargile, who was

purportedly coerced by the prosecution and law enforcement officials to implicate

Underwood in the crimes. Doc. 9-2 at 15–17. The State answered that Cargile’s alleged

recantation did not amount to newly discovered evidence under Rule 32.1(e) of the

Alabama Rules of Criminal Procedure.

On August 15, 2017, the trial court held an evidentiary hearing at which Cargile and

another codefendant, Demeko Powell, testified they had testified falsely at Underwood’s

trial.3 Doc. 9-2 at 71–118. The trial court also heard testimony from former prosecutor

Glen Goggans and Officer Ron Boles, who Cargile claimed had coerced him into testifying

falsely against Underwood. Following the evidentiary hearing, the trial court denied

Underwood’s Rule 32 petition. Doc. 9-2 at 61.

Underwood appealed, and on April 20, 2018, the Alabama Court of Criminal

Appeals issued a memorandum opinion affirming the trial court’s denial of Underwood’s

Rule 32 petition. Doc. 9-5. Underwood’s application for rehearing was overruled (Docs. 9-

6, 9-7), and his petition for writ of certiorari was denied by the Alabama Supreme Court

(Docs. 9-8, 9-9). A certificate of judgment was issued on August 10, 2018. Doc. 9-10.

2 In the record, Cargile’s last name is spelled variously “Cargile” and “Cargill.” His inmate information at

the Alabama Department of Corrections’ website lists his last name as “Cargill.” However, this

Recommendation will use the spelling “Cargile,” the spelling that appears most often in the trial record and

the opinions of the Alabama Court of Criminal Appeals.

3 Underwood was represented by appointed counsel at the evidentiary hearing.

On October 11, 2018, Underwood filed this petition for writ of habeas corpus under

28 U.S.C. § 2254.4 Doc. 1. In his petition, Underwood argues he was denied due process

and a fair trial because the State obtained his convictions by using the perjured testimony

of his codefendants Cargile and Powell. Doc. 1 at 9–10.

Respondents counter that Underwood’s § 2254 petition is time-barred by the one-

year statute of limitations in 28 U.S.C. § 2244(d) (Doc. 9 at 4–5) and that, even if

Underwood’s petition is not time-barred, his petition is subject to denial on the merits

because the state court’s adjudication of his claim did not result in a decision contrary to,

or involving an unreasonable application of, clearly established federal law, nor did it result

in a decision based on an unreasonable determination of the facts in light of the evidence

presented the state court proceedings (Doc. 9 at 5-8).

II. DISCUSSION

A. AEDPA’s Limitation Period

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) includes a

one-year statute of limitations for filing a § 2254 petition. Title 28 U.S.C. § 2244(d) of

AEDPA states:

(1) A 1-year period of limitation shall apply to an application for a

writ of habeas corpus by a person in custody pursuant to the judgment of a

State court. The limitation period shall run from the latest of—

(A) the date on which the judgment became final by the

conclusion of direct review or the expiration of the time for

seeking such review;

4 Although the petition was date-stamped as received in this court on October 18, 2018, Underwood

represents that he signed the petition on October 11, 2018. Doc. 1 at 8. Under the prison mailbox rule, the

court deems Underwood’s petition to be filed on October 11, 2018.

(B) the date on which the impediment to filing an

application created by State action in violation of the

Constitution or laws of the United States is removed, if the

applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted

was initially recognized by the Supreme Court, if the right has

been newly recognized by the Supreme Court and made

retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim

or claims presented could have been discovered through the

exercise of due diligence.

(2) The time during which a properly filed application for State post-

conviction or other collateral review with respect to the pertinent judgment

or claim is pending shall not be counted toward any period of limitation under

this subsection.

28 U.S.C. § 2244(d).

Under § 2244(d)(1)(A), a state prisoner’s conviction is final at “the conclusion of

direct review or the expiration of the time for seeking such review.” Pugh v. Smith, 465

F.3d 1295, 1298 (11th Cir. 2006) (quoting § 2244(d)(1)(A)). As noted above, the Alabama

Court of Criminal Appeals affirmed Underwood’s convictions on direct appeal and denied

rehearing, the Alabama Supreme Court denied certiorari, and a certificate of judgment was

issued on May 17, 2002. Therefore, Underwood’s conviction became final on or about

August 15, 2002, upon the expiration of the 90-day period for him to seek review in the

United States Supreme Court. See Bond. v. Moore, 309 F.3d 770, 774 (11th Cir. 2002);

Pugh, 465 F.3d at 1299. Accordingly, the limitation period under § 2244(d)(1)(A) began

running on August 15, 2002, and, as no tolling events occurred in the year that followed,

expired one year later, on August 15, 2003. Thus, if relegated to § 2244(d)(1)(A),

Underwood’s petition, which was filed on October 11, 2018, is unquestionable untimely.

Underwood implicitly argues that the triggering date in 28 U.S.C. § 2244(d)(1)(D)

applies to his claim and that the AEDPA statute of limitations should run from the date on

which he says he learned that a friend obtained an affidavit from codefendant Brandon

Cargile in which Cargile recanted his trial testimony implicating Underwood in the crimes.

Doc. 1 at 9–10. According to Underwood, he first learned of Cargile’s recantation “[o]n or

about September 11, 2016.”5 Doc. 1 at 9. Under § 2244(d)(1)(D), the one-year limitation

period runs from “the date on which the factual predicate of the claim or claims presented

could have been discovered through the exercise of due diligence.” 28 U.S.C.

§ 2244(d)(1)(D). The limitation period under § 2244(d)(1)(D) starts when the new evidence

was discoverable through the exercise of due diligence, not when the new evidence was

actually discovered. Melson v. Allen, 548 F.3d 993, 999 (11th Cir. 2008), vacated on other

grounds, 561 U.S. 1001 (2010). In this context, due diligence “does not require a prisoner

to undertake repeated exercises in futility or to exhaust every imaginable option, but rather

to make reasonable efforts. Moreover, the due diligence inquiry is an individualized one

that ‘must take into account the conditions of confinement and the reality of the prison

system.’” Aron v. United States, 291 F.3d 708, 712 (11th Cir. 2002) (citations omitted).

“Multiple courts have held that a witness’s recantation can serve as the factual

predicate from which the limitations period begins to run.” DiCaprio-Cuozzo v. Johnson,

5 Underwood attached Cargile’s affidavit to his Alabama Rule 32 petition. Doc. 9-2 at 20-22. In the

affidavit, Cargile averred that the affidavit was completed on September 9, 2016. Doc. 9-2 at 22.

744 F. Supp. 2d 548, 557 (E.D. Va. 2010) (collecting cases); see, e.g., Cooper v. McDaniel,

2013 WL 1315079, at *8 (D. Nev. Mar. 28, 2013) (“Knowledge of Wells’ recantation was

not available to petitioner until Wells signed the declaration recanting his trial testimony

on July 30, 1997. The factual predicate of [petitioner’s] claims . . . could not have been

discovered by petitioner until July 30, 1997. This triggered a new one-year statute of

limitations under § 2244(d)(1).”); U.S. ex rel. Daniels v. McAdory, 2004 WL 906013, at

*4 (N.D. Ill. Apr. 27, 2004) (“Daniels became aware of the factual predicates for his claims

the day Rollins executed an affidavit recanting his identification testimony at Daniels’ trial.

. . . Under § 2244(d)(1), the time for filing a habeas petition in federal court expired one

year later.”).

Because it does not appear that Cargile’s recantation was discoverable by

Underwood at some earlier time through the exercise of due diligence, the Court finds

Underwood first had notice of the factual predicate for his claim on September 11, 2016,

the date on which Underwood says he learned that a friend had obtained an affidavit from

Cargile recanting his trial testimony. Applying § 2244(d)(1)(D), the limitation period for

Underwood to file his § 2254 petition began running on September 11, 2016. Section

2244(d)(2) of the AEDPA provides for the tolling of the limitation period pending state

court review of a properly filed application for post-conviction relief. See In re Hill, 437

F.3d 1080, 1083 (11th Cir. 2006). For Underwood, the limitation period ran for 145 days—

from September 11, 2016, until February 13, 2017, when Bowman filed his Rule 32

petition. As discussed previously, the Alabama Court of Criminal Appeals affirmed the

trial court’s denial of the Rule 32 petition and denied rehearing; the Alabama Supreme

Court denied certiorari; and a certificate of judgment was issued on August 10, 2018. On

that date, 220 days (365 days minus 145 days) remained on the AEDPA clock for

Underwood to file a § 2254 petition presenting his claim. Underwood filed his § 2254

petition on October 11, 2018—62 days after August 10, 2018. Therefore, under

2244(d)(1)(D), his § 2254 petition is timely.

Because the Court finds the triggering date in § 2244(d)(1)(D) applies to

Underwood’s claim, Underwood’s § 2254 petition is timely filed, and his claim is not time-

barred by the AEDPA statute of limitations. Accordingly, the Court will assess the merits

of Underwood’s claim.

B. Merits of Underwood’s Claim

Respondents argue that even if Underwood’s petition is not time-barred, his claim

should be denied on the merits, because the state court’s adjudication of the claim did not

result in a decision contrary to, or involving an unreasonable application of, clearly

established federal law, nor did it result in a decision based on an unreasonable

determination of the facts in light of the evidence presented at the state court proceedings.

Doc. 9 at 5-8.

1. AEDPA Standard of Review

The AEDPA imposes “a highly deferential standard for evaluating state-court rulings” and

“demands that state-court decisions be given the benefit of the doubt.” Felkner v. Jackson,

562 U.S. 594, 598 (2011) (quotes and cite omitted). This court cannot disturb state court

rulings on fully adjudicated issues unless they

(1) 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

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the State court

proceeding.

28 U.S.C. § 2254(d).

This is a highly deferential, “difficult to meet” standard that petitioners must

overcome. Harrington v. Richter, 562 U.S. 86, 102 (2011); Cullen v. Pinholster, 563 U.S.

170, 180 (2011). “[A] state prisoner must show that the state court’s ruling on the claim

being presented in federal court was so lacking in justification that there was an error well

understood and comprehended in existing law beyond any possibility for fairminded

disagreement.” Harrington, 562 U.S. at 103 (quoted in Hill v. Humphrey, 662 F.3d 1335,

1345 (11th Cir. 2011) (en banc)).

And Ҥ 2254(d) applies even to summary state court opinions, as well as to opinions

that do not cite Supreme Court precedent.” Means v. Sec’y, Dep’t of Corrs., 433 F. App’x

852, 853 (11th Cir. 2011) (citing Harrington, 562 U.S. at 98–99). So, if a state court’s

decision is unaccompanied by any legal analysis or explanation, the petitioner must still

show there was no reasonable basis for the state court to deny relief. Johnson v. Sec’y,

Dep’t of Corrs., 643 F.3d 907, 930 n.9 (11th Cir. 2011). This court also must presume state

court factual determinations to be correct; petitioners must rebut that presumption by clear

and convincing evidence. 28 U.S.C. § 2254(e).

2. Newly Discovered Evidence: Witness Recantation

Underwood argues he was denied due process and a fair trial because, he says, the

State obtained his convictions through the use of perjured testimony from Brandon Cargile

and Demeko Powell, both of whom, over 15 years after of Underwood’s trial, recanted

their testimony implicating him in the crimes for which he was convicted. Doc. 1 at 9–10.

As he did in his Alabama Rule 32 petition, Underwood presents this matter as a claim of

newly discovered evidence. Doc. 1 at 9.

At the evidentiary hearing on Underwood’s Rule 32 petition, Cargile testified that,

contrary to his trial testimony, Underwood was not involved in the robbery or the burglary.

Doc. 9-2 at 78–79, 87–88. According to Cargile, he was “offered a deal” by the State to

testify against Underwood in exchange for receiving youthful offender status and a

suspended sentence a suspended sentence for his own involvement in the crimes. Doc. 9-2

at 75–76. He agreed to testify against Underwood, he said, because his mother was sick

with AIDS and he thought he would never see her again if he did not take the deal. Doc. 9-

2 at 77. He testified that Officer Ron Boles coerced him into lying to implicate Underwood

in the crimes and “to say certain things that didn’t even occur.” Doc. 9-2 at 76–77, 79, 85.

Cargile acknowledged that he specifically testified at Underwood’s trial that no one had

threatened him, but he stated he falsely implicated Underwood because Officer Boles told

him it was the only way he would receive the deal. Doc. 92 at 76–77, 85–86. Cargile

testified that he came forward with his recantation because “it’s what’s right”; he stated he

felt Underwood was serving a life sentence “because of me.” Doc. 9-2 at 78.

Powell testified at the evidentiary hearing that his trial testimony implicating

Underwood was untrue and that he only testified to such because Underwood had

implicated him in another robbery, and that he lied “out of anger.” Doc. 9-2 at 93–94.

Powell stated that he came forward with his recantation because he’d had “a change of

heart” about his resentment against Underwood. Doc. 9-2 at 95.

Officer Ron Boles testified at the evidentiary hearing and denied having coerced

Cargile into lying at Underwood’s trial. Doc. 9-2 at 101. Officer Boles stated that he never

promised Cargile he would get youthful offender status if he testified against Underwood

and that youthful offender status was not even something he could give a defendant or

recommend in a case he investigated. Doc. 9-2 at 102, 105–06.

Glen Goggans, the lead prosecutor at Underwood’s trial and now a District Judge

in Elmore County testified at the evidentiary hearing that he talked to Cargile to prepare

for Underwood’s trial, that he did not threaten or coerce Cargile into testifying for the State,

that he did not ask Cargile to lie on the witness stand, and that neither he nor any member

of the District Attorney’s Office offered Cargile any deal, including youthful offender

status, in exchange for testifying against Underwood. Doc. 9-2 at 108–10. Judge Goggans

testified that he never saw or heard Officer Boles promise Cargile youthful offender status

if he testified. Doc. 9-2 at 111–12. Judge Goggans further testified that he did not coerce

or promise Demeko Powell anything in exchange for testifying against Underwood, and

that he never saw or heard Officer Boles coerce or promise Powell anything. Doc. 9-2 at

112–13.

The trial court resolved Underwood’s newly discovered evidence claim in the

following way:

Upon hearing the evidence and testimony, this Court finds as follows:

1. That the Defendant, Co-Defendant, Brandon Cargill changes his

testimony from that given during the original trial in this matter.

2. That the un-named defendant, Co-Defendant, Demeko Powell

testifies and changes his testimony from that given during the original trial

in this matter.

3. That the law enforcement personnel involved testified that there

was no promise of Youthful Offender status for one witness and no privilege

granted to another for their favorable testimony to include this Defendant in

robbery and theft.

Wherefore, the Court finds that there is insufficient evidence or

testimony to grant the relief requested and therefore the Petition for Rule 32

relief is denied.

Doc. 9-2 at 61.

On appeal from the denial of his Rule 32 petition, Underwood reasserted his newly

discovered evidence claim relating to Cargile’s and Powell’s recantation of their trial

testimony and argued that the trial court abused its discretion in denying his claim. Doc. 9-

3. In its memorandum opinion affirming the trial court’s judgment, the Alabama Court of

Criminal Appeals first set out the standard in Rule 32.1(e) of the Alabama Rules of

Criminal Procedure for assessing claims of newly discovered evidence:

Rule 32.1(e), Ala. R. Crim. P., provides:

“Subject to the limitations of Rule 32.2, any defendant who has been

convicted of a criminal offense may institute a proceeding in the court of

original conviction to secure appropriate relief on the ground that:

“. . . .

“(e) Newly discovered material facts exist which

require that the conviction or sentence be vacated by the court,

because:

“(1) The facts relied upon were not known

by the petitioner or the petitioner’s counsel at the

time of trial or sentencing or in time to file a

posttrial motion pursuant to Rule 24, or in time

to be included in any previous collateral

proceeding and could not have been discovered

by any of those times through the exercise of

reasonable diligence;

“(2) The facts are not merely cumulative

to other facts that were known;

“(3) The facts do not merely amount to

impeachment evidence;

“(4) If the facts had been known at the

time of trial or of sentencing, the result probably

would have been different; and

“(5) The facts establish that the petitioner

is innocent of the crime for which the petitioner

was convicted or should not have received the

sentence that the petitioner received.”

See also Ex parte Ward, 89 So. 3d 720 (Ala. 2011). Further,

“All five requirements in Rule 32.1(e) must be satisfied

in order to constitute newly discovered material facts, and, if

all the requirements in Rule 32.1(e) are not satisfied, a claim of

newly discovered material facts is subject to the preclusions in

Rule 32.2. See McConico v. State, 84 So.3d 159, 161–62 (Ala.

Crim. App. 2011), and McCartha v. State, 78 So. 3d 1014,

1017-18 (Ala. Crim. App. 2011) (both holding that a claim of

newly discovered material facts that fails to satisfy the

requirements of Rule 32.1(e) is subject to the preclusions in

Rule 32.2).

“The requirements in Rules 32.1(e)(1), (e)(2), and (e)(3)

are self-explanatory. Rule 32.1(e)(5) requires not that the

newly discovered facts actually establish a petitioner’s

innocence but that the newly discovered facts ‘go to the issue

of the defendant's actual innocence,’ i.e., are relevant to the

issue of guilt or innocence, ‘as opposed to a procedural

violation not directly bearing on guilt or innocence.’ Ex parte

Ward, 89 So. 3d 720, 727 (Ala. 2011). As for the requirement

in Rule 32.1(e)(4) ‘that the result probably would have been

different had the newly discovered evidence been presented to

the jury, this calculation must be made based on the probative

value of the newly discovered evidence and its relationship to

the other evidence presented to the jury.’ Id. at 728.”

Lloyd v. State, 144 So.3d 510, 516–17 (Ala. Crim. App. 2013).

Doc. 9-5 at 6–8.

The Alabama Court of Criminal Appeals continued with specific regard to the legal

principles for recanted testimony:

Furthermore, this Court has explained:

“‘“A material error or misstatement in the

testimony of the witness for the prosecution may

constitute ground for a new trial. . . . But

recantation by witnesses called on behalf of the

prosecution does not necessarily entitle

defendant to a new trial. The question of whether

a new trial shall be granted on this ground

depends on all of the circumstances of the case,

including the testimony of the witnesses

submitted on the motion for the new trial.

Moreover, recanting testimony is exceedingly

unreliable, and it is the duty of the court to deny

a new trial where it is not satisfied that such

testimony is true.” Henderson v. State, 136 [135]

Fla. 548, 185 So. 625, 630 (1939); Borgess v.

State, 455 So.2d 488 (Fla. App. 1 Dist. 1984).

“‘Further, “the Courts, with their

experience with witnesses, generally pay but

little regard to the statement of recanting

witnesses, and only in extraordinary cases will a

new trial be allowed because of recanting

statements.” Wallace v. State, 41 Ala. App. 65,

124 So.2d 110, cert. denied, 271 Ala. 701, 124

So.2d 115 (1960); See 158 A.L.R. 1062–1063;

Peterson v. State, 426 So.2d 494 (Ala. Crim App.

1982); cert. denied, 426 So.2d 494 (Ala. 1983).

See also, State v Scanlon, [108 Ariz. 399], 499

P.2d 155 (1972); Best v. State, 418 N.E.2d 316

(Ind. App. 1981).

“‘The general rule regarding the awarding

of a new trial based on a recanting witness is that,

where independent evidence corroborates the

testimony that a witness later seeks to recant, the

grant of a new trial rests within the sound

discretion of the trial judge. However, when a

defendant is convicted solely on the testimony of

the now recanting witness, it would be an abuse

of discretion not to allow a new trial. See State v.

Scanlon, supra; Commonwealth v. McCloughan,

279 Pa. Super. 599, 421 A.2d 361 (Pa. Super.

1980); Best v. State, supra; Borgess v. State,

supra; State v. Rogers, 703 S.W.2d 166 (Tenn.

Crim. App. 1985); State v. York, 41 Wash. App.

538, 704 P.2d 1252 (Wash. App. 1985).’

“Robinett v. State, 494 So.2d 952, 955 (Ala. Crim. App.

1986).”

M.T. v. State, 677 So.2d 1223, 1230–31 (Ala. Crim. App. 1995) (emphasis

in original)

Doc. 9-5 at 8-9.

Taking the foregoing into consideration, the Alabama Court of Criminal Appeals

then reasoned:

The circuit court did not abuse its discretion when it determined that

the evidence was insufficient to grant the relief requested. The circuit court

was in the best position to determine the witnesses’ credibility. In addition,

the State’s case did not depend solely on the codefendants’ testimonies. The

transcript from Underwood’s trial indicates that the victim identified

Underwood as one of the men who committed the robbery and that other

evidence existed connecting Underwood to the theft. Further, “‘“[e]vidence

tending to impeach or contradict a State witness as to the testimony given

upon the trial is generally not such newly discovered evidence as would

warrant the granting of a new trial.” Dossey v. State, 489 So.2d 662, 666

(Ala. Crim. App. 1986).’” Clark v. State, 621 So.2d 309, 327 (Ala. Crim.

App. 1992), quoting Midell v. State, 570 So.2d 820, 822 (Ala. Crim. App.

1990). The codefendants’ testimony at the evidentiary hearing merely

contradicts the testimony of the victim and other evidence presented at trial.

Underwood failed to meet the requirements of Rule 32.1(e), Ala. R. Crim. P.

As such, the circuit court did not err in denying Underwood’s claim.

Doc. 9-5 at 6–8.

The Alabama Court of Criminal Appeals’ reasoning is consistent with established

federal law. Although this Court finds no definitive statement by the United States Supreme

Court concerning recantation of witness testimony, Justices Brennan and Marshall, in a

dissent from the denial of certiorari, expressed the prevailing view among lower courts.

See Dobbert v. Wainwright, 468 U.S. 1231, 1233–34 (1984) (Brennan, J., dissenting from

denial of certiorari) (quoting and citing Brown v. State, 381 So.2d 690, 692–93 (Fla. 1980)).

Justice Brennan, joined by Justice Marshall, stated:

Recantation testimony is properly viewed with great suspicion. It upsets

society’s interest in the finality of convictions, is very often unreliable and

given for suspect motives, and most often serves merely to impeach

cumulative evidence rather than to undermine confidence in the accuracy of

the conviction. For these reasons, a witness’ recantation of trial testimony

typically will justify a new trial only where the reviewing judge after

analyzing the recantation is satisfied that it is true and that it will “render

probable a different verdict.”

Id.

On this subject, the Eleventh Circuit has repeatedly stated that “recantations are

viewed with extreme suspicion by the courts.” In re Davis, 565 F.3d 810, 825 (2009)

(quoting United States v. Santiago, 837 F.2d 1545, 1550 (11th Cir. 1988)); United States

v. Smith, 433 F.2d 149, 150–51 (5th Cir. 1970) (quoting Newman v. United States, 238

F.2d 861, 862 n.1 (5th Cir. 1956)); United States v. Dumas, 280 F. App’x 848, 852 (11th

Cir. 2008). Other federal courts of appeals have also viewed recantations with suspicion.

See United States v. Jackson, 427 F. App’x 109, 112 (3d Cir. 2001) (“Courts have

historically viewed recantation testimony with great suspicion.”) (quotations and citations

omitted); United States v. Miner, 131 F.3d 1271, 1273 (8th Cir. 1997) (“Courts look upon

recantations with suspicion.”); Spence v. Johnson, 80 F.3d 989, 997 (5th Cir. 1996)

(“recanting affidavits and witnesses are viewed with extreme suspicion by the courts”

(internal citation and quotations omitted)); Haouari v. United States, 510 F.3d 350, 353

(2d Cir. 2007) (“It is axiomatic that witness recantations ‘must be looked upon with the

utmost suspicion.’” (quoting Ortega v. Duncan, 333 F.3d 102, 107 (2d Cir. 2003))); United

States v. Provost, 969 F.2d 617, 620 (8th Cir. 1992) (“[N]ew trial motions based on

recanted testimony are immediately suspect.” (citing United States v. Ward, 544 F.2d 975,

976 (8th Cir. 1976)).

The Ninth Circuit has stated that “[r]ecanting testimony is easy to find but difficult

to confirm or refute: witnesses forget, witnesses disappear, witnesses with personal motives

change their stories many times, before and after trial.” Jones v. Taylor, 763 F.3d 1242,

1248 (2014) (9th Cir. 2014) (quotation omitted). “For these reasons, a witness’ ‘later

recantation of his trial testimony does not render his earlier testimony false.’ Rather, a

witness’ recantation is considered in addition to his trial testimony and in the context in

which he recanted when assessing the likely impact it would have on jurors.” Id. (internal

citation omitted).

Here, the timing of Cargile’s and Powell’s recantations—neither of which was

corroborated by other evidence—is suspect. Cargile’s affidavit was executed over 15 years

after Underwood’s trial, and Powell did not come forward with his recantation for an

equally lengthy time. See Williams v. Hoffner, 2016 WL 2937130, at *7 (E.D. Mich. May

20, 2016) (“Harvey apparently did not indicate that he was willing to recant his trial

testimony until five years after Petitioner’s trial and did not execute his affidavits until 16

years after trial. Such a long delay in coming forward renders his recantation inherently

suspect.”); Olson v. United States, 989 F.2d 229, 232 (7th Cir. 1993) (finding recantation

made more than four years after trial testimony to be suspect); Lewis v. Smith, 100 F. App’x

351, 355 (6th Cir. 2004) (finding it proper for district court to reject as suspicious a witness’

recanting affidavit made two years after trial); Bates v. Metrish, 2010 WL 1286413, at *11

(E.D. Mich. Mar. 30, 2010) (finding recantation “suspect and unreliable” because the

witness “waited 10 years after the trial to indicate that he was willing to recant his trial

testimony and 16 years after trial to execute his affidavit”). Although Cargile testified that

he came forward with his recantation because “it’s what’s right,” and he said he felt

Underwood was serving a life sentence “because of me” (Doc. 9-2 at 78), he offered no

reason for his lengthy delay in recanting. Like Cargile, Powell did not explain the reason

for his delay, other than to say that he’d had “a change of heart” (Doc. 9-2 at 95).

Further, Cargile’s testimony that he was coerced by Officer Boles into testifying

against Underwood and was offered a deal by Officer Boles for treatment as a youthful

offender was contradicted by Officer Boles’s testimony at the evidentiary hearing that he

made no such deal with Cargile and was not even in a position to make a recommendation

to the judge. The trial court could have resolved this credibility question against Cargile

and, upon finding Cargile not to be credible on this matter, could have determined that

Cargile’s recantation was not credible in toto. The Alabama Court of Criminal Appeals

could reasonably have found no abuse of discretion in the trial court’s credibility

determinations regarding the recanting witnesses.6

Here, the state court’s adjudication is entitled to deference, absent a showing that

the Alabama Court of Criminal Appeals’ adjudication of Underwood’s claim resulted in a

decision that was contrary to, or involved an unreasonable application of, clearly

established federal law, or that the decision was based on an unreasonable determination

of the facts in light of the evidence in the state court proceeding. 28 U.S.C. § 2254(d).

Underwood has not shown that the conclusion reached by the Alabama state court was

incompatible with any factually similar Supreme Court case. Likewise, he has failed to

demonstrate that the state court’s application of the legal standard was objectively

unreasonable or that the findings of fact on which it is based are unreasonable in light of

the record evidence. The Alabama Court of Criminal Appeals appropriately viewed

Cargile’s and Powell’s recanted testimony with suspicion, and its findings that other

6 Both Cargile and Powell were convicted and imprisoned for other crimes in the years following

Underwood’s trial.

evidence corroborated the original trial testimony of these witnesses was not unreasonable.

Consequently, Underwood is not entitled to federal habeas relief on his claim.

III. CONCLUSION

Accordingly, it is the RECOMMENDATION of the Magistrate Judge that

Underwood’s 28 U.S.C. § 2254 petition be DENIED and that this case be DISMISSED

with prejudice.

It is further ORDERED that the parties shall file any objections to this

Recommendation by November 4, 2021. 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 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).

DONE this 21st day of October, 2021.

/s/ Charles S. Coody

CHARLES S. COODY

UNITED STATES MAGISTRATE JUDGE