# Appendix — Alabama v. Hansbrough

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1994
- **Citation:** 513 U.S. 914

## Text

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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1741%3A2. Public record. Not legal advice.