Appendix — Alabama v. Hansbrough

SOUL

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») 93 2 O21 JUN 1 3 1994

NO.

OFFICE OF THE CLERK

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

ALABAMA,

PETITIONER - APPELLEE,

V.

CHARLES HANSBROUGH,

RESPONDENT - APPELLANT.

APPENDICES TO THE PETITION FOR A

WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT

JAMES H. EVANS

ALABAMA ATTORNEY GENERAL

*JAMES B. PRUDE

ASSISTANT ALABAMA ATTORNEY GENERAL

OFFICE OF THE ATTORNEY GENERAL

Alabama State House

11 South Union Street

Montgomery, Alabama 36130

(205) 252-7300

*ATTORNEY OF RECORD

APPENDIX

APPENDIX

APPENDIX

APPENDIX

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APPENDIX "A"

HANSBROUGH V. LATTA

Charles HANSBROUGH, Petitioner-Appellant,

Vv.

Sherrell Wayne LATTA, Jailer, Attorney General

of the State of Alabama,

Respondents-Appellees.

No. 91-7735.

United States Court of Appeals,

Eleventh Circuit.

Jan. 7, 1994.

Petitioner sought habeas corpus review

after the Alabama Court of Criminal Appeals

struck his second notice of appeal without

explanation. The United States District Court

for the Northern District of Alabama, No.

90-CV-695, Clarence W. Algood, J., dismissed

writ of habeas corpus as procedurally barred,

and appeal was taken. The Court of Appeals,

Dyer, Senior Circuit Judge, held that state

court's striking notice of appeal was not based

on established state procedural rule, and thus,

action seeking federal habeas review could not

be dismissed as procedurally barred.

Reversed and remanded.

1. Habeas Corpus Key 842

Whether petitioner's actions have created

state law procedural bar to federal habeas

review is mixed question of law and fact which

is reviewed de novo.

2. Habeas Corpus Key 422

Even if plain statement of why state court

appeal was stricken is lacking, federal court

should not address habeas corpus petition unless

it "fairly appears" that state court's decision

rested primarily on federal law or was

interwoven with that law.

3. Criminal Law Key 1131(1)

Alabama law does not contain rule that

voluntary dismissal of appeal is with prejudice

so as to bar subsequent appeal.

4. Criminal Law Key 1083

Under Alabama law, there is no requirement

that posttrial motions have no tolling effect if

a notice of appeal has already been filed when

motions are denied.

5. Habeas Corpus Key 403

Only firmly established and regularly

followed state practice may be interposed by

state to prevent subsequent review by federal

court of federal constitutional claims.

6. Habeas Corpus Key 403

Novel state procedural requirements or

those of whose existence defendant could not

reasonably be deemed to have been apprised could

not prevent review of cases seeking vindication

in state courts of federal constitutional rights.

7. Habeas Corpus Key 403

Absent anything in Alabama's appellate or

criminal rules which could reasonably have

apprised defendant that dismissal of his orally

noticed appeal and refiling as provided by Rule

would or even might be untimely or constitute

waiver of right to appeal, action seeking

federal habeas review could not be dismissed as

procedurally barred; striking of notice of

appeal by state court was not grounded on any

firmly established procedural rule.

8. Criminal Law Key 1081(4.1)

Fact that defendant filed notice of appeal

in Alabama state court prior to filing his

postsentencing motions did not affect treatment

of premotion notice of appeal as having been

filed on date notice is denied. Rules

App.Proc., Rule 4(b)(1).

Appeal from the United States District

Court for the Northern District of Alabama.

Before KRAVITCH and BLACK, Circuit Judges,

and DYER, Senior Circuit Judge.

DYER, Senior Circuit Judge:

Hansbrough's Petition for Writ of Habeas

Corpus was dismissed by the district court as

procedurally barred. In the state court he

attempted to raise federal constitutional

issues, for example, that he was denied Brady

material and that a search and seizure was

illegal.

The issue before us is whether the action

of the state court in striking Hansbrough's

notice of appeal rests upon an independent and

adequate state procedural rule that is firmly

established and regularly followed, so as to

deprive him of an opportunity for federal review

on the merits. We find that he is entitled to

such a review, and reverse.

Procedural History

Hansbrough was convicted in an Alabama

state court for attempted theft first degree and

for possession of forgery devices, and was

sentenced to 20 years on each charge to run

concurrently. He filed a timely oral notice of

appeal on April 20, 1990 as authorized by

Ala.R.App.P. 3(a)(2). On May 17, 1990 he filed

a motion for a new trial. This motion was

denied by the trial court on May 22, 1990, while

Hansbrough's direct appeal was pending. He

withdrew the oral notice of appeal on June 8,

1990 because he discovered that the trial court

had appointed unwanted counsel and he wished to

proceed pro se. Thereafter, on June 15, 1990

the Alabama Court of Criminal Appeals dismissed

his oral notice of appeal. On June 28, 1990

Hansbrough filed a written pro se notice of

appeal which was within 42 days after denial of

his timely-filed motion for new trial as

provided by Ala.R.App.P. 4(b)(1)? , but more

than 42 days of the date of sentencing. In this

notice he stated that he wanted to appeal from

the court's judgment of conviction on March 2,

1990 and the denial of his motion for a new

trial on May 22, 1990. On July 8, 1990, the

Rule 4. Appeal As of Right - When Taken

(b) Appeals in Criminal Cases.

(1) Circuit Court. In a criminal case a

notice of appeal by the defendant shall be filed

with the clerk of the trial court within 42 days

(6 weeks) after pronouncement of the sentence,

provided that the notice of appeal may be oral,

as provided in Rule 3(a)(2) ... If a motion in

arrest of judgment, motion for new trial, or

motion for judgment of acquittal has been filed

within 30 days from pronouncement of the

sentence, an appeal may be taken within 42 days

(6 weeks) after the denial or overruling of the

motion....

Alabama Court of Criminal Appeals "struck" the

second notice of appeal without opinion or

further explanation. The district court

concluded that the state court proceedings

constituted a procedural default precluding

federal habeas review on the merits.

In the Report of the Magistrate Judge

adopted by the district court, it was stated

that:

It is not clear whether the court

viewed the second appeal as being

barred by the dismissal of the first

or as being untimely; either is a

possibility. In either event it is

apparent that the Alabama Court of

Criminal Appeals viewed the written

notice of appeal filed June 27, 1990,

to be insufficient to invoke its

appellate jurisdiction to review the

merits of the petitioner's appeal.

The combination of the petitioner's

dismissal of his first appeal and the

striking of his second appeal

constitutes an independent and

adequate state ground precluding

consideration of the merits of the

habeas claims now before the court.

Analysis

Hansbrough's notice of appeal filed after

the denial of his motion for new trial would

have been deemed timely, absent the earlier oral

notice. The state argues that the withdrawal

acted as a bar to his subsequent appeal. It

further contends that the filing of a motion for

a new trial tolls the running of the 42-day

limit only if the notice of appeal is given

after the motion is filed, but has no tolling

effect if the notice of appeal is given prior to

the filing of the new trial motion. When

Hansbrough withdrew his oral notice of appeal

the state argues that his notice became “vacated

" and the time limit for any

ab initio,’

subsequent notice of appeal would be calculated

from the date of sentencing, which was more than

42 days before he filed his second notice of

appeal. Thus the dismissal of the original

notice of appeal constituted a procedural

default of the claim he raises in his habeas

petition under Wainwright v. Sykes, 433

97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).

=

Hansbrough argues that the state action

must rest on independent and adequate state

procedural grounds. In order to be

"independent", the rule may not be intertwined

with an interpretation of federal law; the state

court must have relied on a state rule

sufficient to justify its decision. In order to

be "adequate", the rule must not be applied in

an arbitrary or unprecedented fashion. He

contends that the Alabama Court of Criminal

Appeals relied on a novel procedural requirement

which he could not have reasonably known about.

[1] Whether a petitioner's actions have

created a state law procedural bar is a mixed

question of law and fact, which this Court

reviews de novo. Tower v. Phillips, 7 F.3d 206,

208 (11th Cir. 19930.

[2] The record does not contain a "plain

statement" of why Hansbrough's second notice of

appeal was stricken. See Harmon v. Barton, 894

F.2d 1268, 1271 (lith Cir.), cert. denied, 498

AS.

U.8. @32, i123 8.C. -96; 212 L.«E6<26 GS (i990).

Even if a plain statement is lacking, a federal

court should not address the claim unless it

"fairly appears" that the state court's decision

"rested primarily on federal law or was

interwoven with such law". Coleman v. Thompson,

202 U.6. ; » B41 B.C. 2546, °2559;, 2232

L.Ed.2d 640 (1991). It does not "fairly

appear", however, that the dismissal was based

upon or interwoven with federal law. Thus,

federal review of Hansbrough's claim is barred,

absent a showing of cause and prejudice, if the

state applied its well established and regularly

followed procedural rules to dismiss the appeal.

Discussion

[3, 4] There is no Alabama rule or law

that a voluntary dismissal of an appeal is with

prejudice so as to bar a subsequent appeal.

Likewise, there is no Alabama case holding that

post-trial motions have no tolling effect if a

notice of appeal has already been filed when the

motions are denied.

10

In this case, Hansbrough had made clear in

the trial court and on appeal that he intended

to proceed pro se. The trial court nonetheless

appointed counsel. When Hansbrough became aware

of that, he undertook action to correct the

situation. The question is not whether

Hansbrough was well advised to proceed without

counsel, or whether there was some other way to

effect removal of this undesired counsel. The

question is whether his action transgressed a

firmly established and regularly followed state

|

procedural rule.

[5, 6] In Ford v. Georgia, 498 U.S. 41l,

423, 111 8.Ct. 850, $67, 112 L.EBa@.24 935 (i992),

the Supreme Court followed James v. Kentucky,

466 U.S. 341, 348-51, 104 S.Ct. 1830, 1035-36,

80 L.Ed.2d 346 (1984), in holding "that only a

'firmly established and regularly followed state

practice’ may be interposed by a State to

prevent subsequent review by this Court of a

federal constitutional claim." Novel procedural

requirements or those of whose existence the

11

defendant could not reasonably deemed to have

been apprised, cannot be permitted to thwart

review of cases seeking vindication in state

courts of federal constitutional rights. See

NAACP v. Alabama, ex rel. Flowers, 377 U.S. 288,

84 $.Ct. 1302, 12 L.Ed.2d 325 (1964); Wright v.

Georgia, 373 U.S. 284, 83 S.Ct. 1240, 10 L.Ed.2d

349 (1963); Spencer v. Kemp, 781 F.2d 1458,

1463, 1469-71 (llth Cir. 1986) (en banc).

[7, 8] We find nothing in Alabama's

appellate or criminal rules which could

reasonably be construed as apprising Hansbrough

that dismissal of his orally-noticed appeal and

refiling as provided by the Rule would or even

might be untimely or constitute a waiver of his

right to appeal. The striking of Hansbrough's

notice of appeal by the Alabama Court of

Criminal Appeals was not grounded on a "firmly

established, regularly followed" procedural

rule. In fact, Alabama has no rule at all,

either providing that withdrawal of one notice

of appeal acts as a bar to the second, or

12

'

4

4

providing that the filing of a second notice of

appeal more than 42 days after denial of

post-trial motions is untimely if a prior notice

has previously been withdrawn. The fact that

Hansbrough filed a notice of appeal prior to

filing his post-sentencing motions does not

appear to be relevant to the issues because

under Ala.R.App.P. 4(b)(1), a premotion notice

of appeal is treated as having been filed on the

date the notice is denied.

Conclusion

We reverse the district court's denial of

Hansbrough's habeas petition on the grounds of

procedural default and remand for consideration

on the merits.

REVERSED and REMANDED.

13

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 91-7735

CHARLES HANSBROUGH,

Petitioner-Appellant,

versus

SHERRELL WAYNE LATTA, Jailer; ATTORNEY

GENERAL OF THE STATE OF ALABAMA,

Respondents-Appellees.

On Appeal from the United States District Court

for the Northern District of Alabama

ON PETITION(S) FOR REHEARING

March 14, 1994 )

BEFORE: KRAVITCH, BLACK, Circuit Judges, and

DYER, Senior Circuit Judge.

PER CURIAM:

The Petition(s) for Rehearing filed by

appellees, Sherrell Wayne Latta and Attorney

General of the State of Alabama, is denied.

14

ENTERED FOR THE COURT:

/s/Phyllis Kravitch

UNITED STATES CIRCUIT JUDGE

15

APPENDIX "B"

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

CHARLES HANSBROUGH,

Petitioner,

vs. Case No. CV 90-A-695-S

CAPTAIN LATTA, Warden;

ATTORNEY GENERAL OF

)

)

)

)

)

)

)

THE STATE OF ALABAMA, )

)

)

Respondents.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

The petitioner, Charles Hansb-ough, filed

his pro se petition for relief under 28 U.S.C.

§2254 in the above-styled cause on April 10,

1990. Although at the time of the filing of

this action the petitioner was in custody at the

Jefferson County Jail awaiting sentencing, he

was sentenced on April 20, 1990, and transferred

to the Alabama Department of Corrections

thereafter. Petitioner was sentenced to 20

years in prison following his convictions for

attempted theft in the first degree and

possession of forgery devices after a jury

trial. In accordance with the usual practices

16

of this court and 28 U.S.C. §636(b), the

petition has been referred to the undersigned

magistrate judge for a preliminary review and

recommendation.

I. Procedural Background

On March 2, 1990, petitioner and his wife

both went to trial representing themselves.

Although an attorney had been appointed to

stand-by counsel, petitioner plainly expressed

his desire to represent himself. The jury

convicted him of attempted theft in the first

degree and possession of forgery devices.

Petitioner continued to represent himself at the

time of sentencing on April 20, 1990, and at the

conclusion of the sentencing hearing, he gave

oral notice of his intention to appeal the

conviction and sentence. From that point

forward,the procedural history of this case

became complex.

After giving oral notice of appeal on April

20, 1990, as authorized by Rule 3(a)(2) of the

Alabama Rules of Appellate Procedure, petitioner

17

Sn

ee.

filed three post-conviction motions. Identified

as "Motion for New Trial - A," "Motion for New

Trial - B," and "Motion for Judgment of

Acquittal," all filed on May 17, 1990, only the

"Motion for New Trial - B" is pertinent to the

issues now asserted in the instant habeas

action. Although the "Motion for Judgment of

Acquittal" apparently was not ruled upon, both

motions for new trial were denied by the trial

court on May 22, 1990.

While petitioner's case was pending on

direct appeal, he discovered the trial court had

“petitioner asserts also that between the

time of his conviction and his sentencing, he

filed motions with the Alabama Court of Criminal

Appeals seeking to stay proceedings in his case

and seeking relief in the nature of a writ of

habeas corpus. He argues that these motions

also presented to that court the same issues now

before this Court. The motion to stay

proceedings was denied on March 21, 1990, and

the state petition for writ of habeas corpus to

the Alabama Court of Criminal Appeals was denied

on March 28, 1990. Compare Castille v. Peoples,

489 U.S. 346, 109 S.Ct. 1056, 103 L.Ed.2d 380

(1989).

18

appointed his stand-by counsel to represent him

on appeal. Not wanting to be represented by

counsel and wishing to pursue his appeal pro se,

he filed a motion to withdraw his oral notice of

appeal on June 8, 1990. Thereafter, on June 13,

1990, the Alabama Court of Criminal Appeals

dismissed the appeal "on motion by

appellant... Thirteen days later, on June 28,

1990, petitioner filed his written "Pro Se

Notice of Appeal." In that notice, petitioner

expressly stated that he had withdrawn his oral

notice of appeal because an attorney was

erroneously listed as his counsel of record on

appeal. Furthermore, petitioner stated that he

wanted to appeal from the court's judgment of

conviction on March 2, 1990, the denial of his

motions for new trial on May 22, 1990, and other

motions set out in the notice. On July 18,

1990, however, the Alabama Court of Criminal

Appeals entered an order that "said appeal be

and stand stricken in this court and in the

court below."

19

On August 27, 1990, once again the

petitioner filed a "Pro Se Notice of Appeal”

purporting to appeal from the judgment of

conviction, the sentencing order, and the denial

of his Motion for Judgment of Acquittal. But,

once again, on November 2, 1990, the Alabama

Court of Criminal Appeals entered an order

dismissing the appeal "as untimely filed."

Following the filing of the petition for

habeas corpus in this court, an order was

entered on May 18, 1990, requiring the

respondents to show cause why the relief should

not be granted. Their response was filed on

June 11, 1990. On October 5, 1990, the court

entered an order requiring all parties to expand

the record to address the effect of the

petitioner's withdrawal of his original notice

of appeal in state court. The court noted that

such a withdrawal might be deemed to be a

deliberate by-pass under Fay v. Noia, 372 U.S.

391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963).

Petitioner responded on October 24, 1990, as did

the respondents on October 29, 1990. The court

20

entered yet another order on January 7, 1991,

once again requesting the respondents to further

expand the record in this cause and directing

the petitioner to show cause why the habeas

relief should not be denied because of an

apparent deliberate by-pass or procedural

default. The respondents expanded the record as

directed, and the petitioner responded to the

show cause order on February 11, 1991.

ee Procedural Default

The interesting issue presented by this

case is whether the petitioner's voluntary

withdrawal of his oral notice of appeal

constituted a procedural default precluding

federal habeas review on the merits of the

claims asserted in this action. While the

voluntary dismissal of an appeal originally

raised concerns about deliberate by-pass under

Fay v. Noia, subsequent Supreme Court decisions

now appear to make clear that the deliberate

by-pass standard has yielded to the procedural

default test announced in Wainwright v. Sykes,

21

433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2a 594

(1977). See Coleman v. Thompson,

1991 WESTLAW 107399 (Supreme Court Ne« 89-766.

June 24, 1991). Based on the facts describes

above, the court concludes that petitioner has

procedurally defaulted these claims anc that He

has failed to show "cause and prejudice

excusing the procedural default

The doctrine of procedural defauit rests

upon the long-recognized legal theory ‘hat «4

state criminal conviction should not be

disturbed because of alleged fecera:

constitutional errors where there is 4a!

independent and adequate state grounc upon

the validity of the conviction rests see

Coleman v. Thompson, supra Thus, the z e

stated in Coleman is as foliows

In all cases in which a state prisone:

has defaulted his federal laims ir

state court pursuant to an incepencen*

and adequate state procedural ruie¢

federal habeas review of the ciaime is

barred unless the prisoner car

demonstrate cause for the Gefau.t 4

actual prejudice as a resuit f the

alleged violation of federal iaw :

demonstrate that faiiure *t neide:

the claims will result in fundamental

miscarriage of justice.

Coleman v. Thompson, U.S. : , 1991

WESTLAW 107399, at p. 17. Hence, the threshold

questions presented here are whether the

petitioner has defaulted his federal claims and,

if so, has he done so on the basis of an

independent and adequate state procedural rule.

As outlined above, the critical facts

reveal that at the time of the petitioner's

sentencing on April 20, 1990, he gave oral

notice of appeal as authorized by Rule 3(a)(2)

of the Alabama Rules of Appellate Procedure. >

3tn pertinent part, Alabama Rule 3(a)(2)

reads as follows:

In criminal cases, an appeal permitted

by law as a matter of right to an

appellate court shall be taken by the

filing of a written notice of appeal

with the Clerk of the trial court

within the time allowed by Rule 4, or

by the defendant's giving an oral

notice of appeal at the time of

sentencing, which oral notice shall be

noted of record;....

23

————————EE———

Thus, immediately as of the time of sentencing,

petitioner had an active pending appeal to the

Alabama Court of Criminal Appeals. Within 30

days after the date of sentencing, on May 17,

1990, petitioner filed his post-trial motions

for new trial and a motion for judgment of

acquittal. Only the "Motion for New Trial - B"

is pertinent to the instant habeas case because

it is in that motion that the issues now before

this court were first raised before the state

court. On May 22, 1990, both motions for new

trial were denied. There is no indication in

the court file that the motion for judgment of

acquittal was ever affirmatively ruled upon by

the state court.

After learning that his stand-by counsel

had been appointed to represent him on appeal,

petitioner filed a notice to withdraw his oral

notice of appeal. That oral notice of

withdrawal was filed on June 8, 1990, after the

"Motion for New Trial - B" had been denied by

the trial court. Apparently on the basis of the

notice of withdrawal, the Alabama Court of

24

Criminal Appeals dismissed the appeal on the

petitioner's motion on June 15, 1990. Thus, as

of that date, there was no pending appeal nor

was there a pending post-trial motion dealing

with the issues now before this court.

Alabama Rule of Appellate Procedure 42 is

virtually the same as the comparable federal

appellate rule. The Alabama rule reads, in part

as follows:

An appeal or other proceeding may be

dismissed on motion of the appellant

or moving party upon such terms as

fixed by the court. A copy of the

dismissal of the appeal shall be filed

by the Clerk of the appellate court

with the Clerk of the court below.

See Alabama Rule of Appellate Procedure 42. The

order dismissing the appeal on petitioner's

motion, however, did not specify whether the

dismissal was with or without prejudice to the

petitioner's right to file subsequent appeals.

On June 27, 1990, the petitioner filed his

written notice of appeal, purporting to appeal

from the court's order of conviction on March 2,

1990, and the denial of post-trial motions on

May 22, 1990. Petitioner asserts that this

25

notice of appeal was timely inasmuch as it came

within 42 days after the denial of his

post-trial motions. He cites Alabama Appellate

Rule 4(b)(1) for the authority that:

If a motion in arrest of judgment,

motion for a new trial, or motion for

judgment of acquittal has been filed

within 30 days from the pronouncement

of sentence, an appeal may be taken

within 42 days (6 weeks) after the

denial of overruling of the motion.

Hence, petitioner argues that he had the right

to file a second notice of appeal within 42 days

after the denial of his post-trial motions even

if his earlier oral notice of appeal had been

withdrawn and that appeal dismissed.

The action of the Alabama Court of Criminal

Appeals on June 15, 1990, however, is contrary

to that supposition. On that date, the court

struck the appeal, apparently on its own motion,

although it did not state the reason for its

conclusion that the appeal was insufficient. It

is not clear whether the court viewed the second

appeal as being barred by the dismissal of the

first or as being untimely, either is a

26

ee

A

possibility. In either event it is apparent

4a though there appears to be no Alabama

authority on the point, several courts have held

that the dismissal of an appeal acts as a bar to

subsequent appeals. See generally 5 Am. Jur. 2d

Appeal & Error §930, p. 358; Annotation, 96

A.L.R.2d 312 (1964); Annotation, 42 A.L.R. Fed.

758 (1979). Under application of this rule,

petitioner's dismissal of his first appeal

precluded him from filing another, even if

timely.

It is also possible that, contrary to

petitioner's argument, his second notice of

appeal may have been untimely. Once again,

there is no Alabama case law on point, but the

phrasing of Ala.R.App.P. 4(b)(1) indicates the

tolling effect of post-trial motions on the time

for filing an appeal in a criminal case may

depend on whether notice of appeal was given

before or after the filing of the motions. For

instance, the fifth sentence of Ala.R.App.P.

4(b)(1) reads:

When notice of appeal is made or filed

before the timely filing of a motion

in arrest of judgment, motion for new

trial, or motion for judgment of

acquittal, ..., the time for filing of

the court reporter's transcript and

the clerk's record shall be governed

by Rule 11(b) and (c) as if the notice

of appeal had been filed on the date

of the overruling of such motion.

[Emphasis added].

While this does not speak directly to the

tolling effect on the time for filing an appeal,

(Footnote Continued)

27

that the Alabama Court of Criminal Appeals

viewed the written notice of appeal filed June

278, 1990, to be insufficient to invoke its

appellate jurisdiction to review the merits of

the petitioner's appeal.

The combination of the petitioner's

dismissal of his first appeal and the striking

of his second appeal constitute an independent

and adequate state ground precluding

consideration of the merits of the habeas claims

now before the court. Even though the Alabama

Court of Criminal Appeals did not state the

(Footnote Continued)

it does indicate the intent that notices of

appeal filed before the filing of post-trial

motions, not 42 days after that date. fThus,

post-trial motions have no tolling effect if a

notice of appeal already has been filed when the

motions are denied. Under the facts of this

case, therefore, petitioner's oral notice of

appeal, given before the filing of post-trial

motions, was deemed "filed" on the date the

motions were overruled, May 22, 1990, and the

post-trial motions had no tolling effect. When

petitioner dismissed his oral notice of appeal,

that appeal was lost. The written notice filed

June 27, 1990, was untimely because it was more

than 42 days after sentencing and it could not

benefit from tolling.

28

ae

reason for striking the written notice of

appeal, it is apparent that the reason did not

involve any consideration of the habeas claims

now before the court. Petitioner defaulted by

dismissing his valid, pending appeal, thereby

causing his second notice of appeal to be

stricken either because it was barred by the

earlier dismissal or because it was untimely.

Plainly, the Alabama Court of Criminal Appeals

refused to consider petitioner's appeal on the

merits because the second notice of appeal

invoking their appellate jurisdiction was

legally inadequate to do so. The petitioner's

failure to prosecute his appeal in a timely and

proper manner is an independent and adequate

state basis for precluding consideration of the

merits of the appellate claims in this habeas

action.

In order to avoid the procedural default

doctrine of Wainwright v. Sykes, supra, the

petitioner must show cause for his procedural

default and actual prejudice from the alleged

constitutional error. S Wainwright v. Sykes,

29

supra; Coleman v. Thompson, supra. Because the

petitioner represented himself in connection

with these appeals, he cannot claim

constitutionally ineffective assistance of

counsel as cause for the procedural default.

Moreover, "cause" in the context of procedural

default requires "a showing of some external

impediment preventing counsel [or petitioner]

from constructing or raising the claim." This

means that "cause for a procedural default must

ordinarily turn on whether the prisoner can show

that some objective factor external to the

defense impeded... efforts to comply with the

state's procedural rule." Murray v. Carrier,

477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d

397, 408 (1986); see Pitts v. Cook, 923 F.2d

1568 (llth Cir. 1991). Despite notice from the

court explaining the necessity of establishing

cause and prejudice, petitioner has not shown

any such external impediment that caused him to

forfeit his direct appeal on these claims.

Indeed, it is apparent from the record that the

only cause for the loss of the appeal was the

30

petitioner's own errors. Being not able to show

cause for his procedural default, the merits of

the petitioner's claims cannot be reviewed by

this court.

Finally, application of the procedural

default doctrine precluding review of the merits

in this case does not result in a fundamental

miscarriage of justice. The "miscarriage of

justice" test is a narrow exception to the

procedural default rule, acting as a "safety

valve" for the "'extraordinary case' where a

substantial claim of factual innocence is

precluded by an inability to show cause."

Harris v. Reed, 489 U.S. 255, 271, 109 S.Ct.

1038, 103 L.Ed.2d 308, 323 (1989) (O'Connor

concurring). Here, petitioner has made no

showing, substantial or otherwise, of factual

innocence that would bring him within the

"Safety valve" of this exception to the

procedural default rule.

Having concluded that the petitioner

procedurally defaulted the claims now before the

court by dismissing an appeal in which they were

31

included and having determined that he has not

shown cause for his failure to properly

prosecute the appeal of these claims, this court

is precluded from considering the merits of the

claims under the procedural default doctrine of

Wainwright v. Sykes. Moreover, the "fundamental

miscarriage of justice" exception to the rule

does not apply. All of that said, no habeas

relief is available to the petitioner.

Based upon the foregoing considerations,

the magistrate judge RECOMMENDS that the

petition for habeas corpus relief pursuant to 28

U.S.C. §2254 in the above-styled cause be DENIED

and DISMISSED.

Any party may file specific written

objections to this report and recommendation

within fifteen (15) days from the date it is

filed in the office of the Clerk. Failure to

file written objections to the proposed findings

and recommendations contained in this report and

recommendation within fifteen (15) days from the

date it is filed shall bar an aggrieved party

from attacking the factual findings on appeal.

32

The Clerk is DIRECTED to serve a copy of

this report and recommendation upon the

petitioner and upon counsel for the respondents.

{s/T. Michael Putnam _

T. MICHAEL PUTNAM

UNITED STATES MAGISTRATE

JUDGE

33

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

CHARLES HANSBROUGH,

Petitioner,

Case No. CV 90-A-695-S

Vs.

CAPTAIN LATTA, Warden;

ATTORNEY GENERAL OF

THE STATE OF ALABAMA,

mee ee ee ee ee ee ee ee ee”

Respondents.

The magistrate judge filed his report and

recommendation in this cause on July 26, 1991,

recommending that the petition for habeas corpus

relief under 28 U.S.C. §2254 be denied. The

petitioner filed his objections to the report

and recommendation on August 9, 1991. Having

now carefully reviewed and considered de novo

all the materials in the court file, including

the report and recommendation and the objections

to it, the court is of the opinion that the

report and recommendation is due to be and

hereby is ACCEPTED and ADOPTED.

Accordingly, the petition for writ of

habeas corpus under 28 U.S.C. §2254 in the

34

above-styled cause is due to be and the same is

hereby DENIED and DISMISSED WITH PREJUDICE.

DATED this 12 day of September, 1991.

(i) |

SENIOR JUDGE

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APPENDIX "D"

"(b) Appeals in criminal cases.

(1) CIRCUIT COURT. In a criminal case a

notice of appeal by the defendant shall be filed

with the clerk of the trial court within 42 days

(six weeks) after pronouncement of the sentence,

provided that the notice of appeal may be oral,

as provided in Rule 3(a)(2). A notice of appeal

filed after the announcement of a decision or

order, but before pronouncement of the sentence,

shall be treated as having been filed after

pronouncement of the sentence and on the day

thereof. If a motion in arrest of judgment,

motion for a new trial, or motion for judgment

of acquittal has been filed within 30 days from

pronouncement of the sentence, an appeal may be

taken within 42 days (six weeks) after the

denial or overruling of the motion. A motion in

arrest of judgment, motion for new trial, or

motion for judgment of acquittal filed before

pronouncement of the sentence shall be treated

as having been filed immediately after

|

pronouncement of the sentence and on the day

thereof. When notice of appeal is made or filed

before the timely filing of a motion in arrest

of judgment, motion for new trial, or motion for

judgment of acquittal, or during the pendency of

such a timely filed motion, the time for filing

of the court reporter's transcript and the

clerk's record shall be governed by Rule 11(b)

and (c) as if the notice of appeal has been

filed on the date of the overruling of such

motion. When an appeal by the state as of right

is authorized by statute or rule, the notice of

appeal shall be filed in the trial court within

42 days (six weeks) after the decision, order,

or judgment appealed from; except that any

pretrial appeal by the state shall be taken

within the time allowed by the rule of criminal

procedure providing for such appeals. See cvurm

5

64471

38