STEPHEN M. DOYLE, Magistrate Judge.
Acting pro se, Alabama inmate Davon Lashon Davis ("Davis") brings this petition for writ of habeas corpus under 28 U.S.C. § 2254 challenging his conviction and sentence for committing domestic violence by strangulation or suffocation. Doc. 1.
On September 16, 2013, a Houston County jury found Davis guilty of committing domestic violence by strangulation or suffocation, in violation of § 13A-6-138, Ala. Code 1975. (Doc. 8-1) at 15-16. On November 12, 2013, the trial court sentenced Davis as a habitual felony offender to 30 years' imprisonment. (Doc. 8-1) at 24.
Davis appealed, raising claims that (1) § 13A-6-138, Ala. Code 1975, the statute defining domestic violence by strangulation or suffocation, is unconstitutionally vague and overbroad; (2) the trial court erred in allowing testimony that a pistol used by the victim belonged to Davis and had been reported as stolen; (3) the State improperly impeached a defense witness; (4) the trial court improperly limited the defense's cross-examination of a witness regarding whether the injuries suffered by the victim could have been self-inflicted; and (5) the jury's verdict was against the weight of the evidence. See (Doc. 8-3).
On August 22, 2014, the Alabama Court of Criminal Appeals issued a memorandum opinion affirming Davis's conviction and sentence. (Doc. 8-4). Davis applied for rehearing, which was overruled. He then filed a petition for writ of certiorari with the Alabama Supreme Court, which that court denied on January 30, 2015. (Docs. 8-5 & 8-6).
On April 29, 2015, Davis filed a pro se petition in the trial court seeking post-conviction relief under Rule 32 of the Alabama Rules of Criminal Procedure. See (Doc. 8-8) at 11. On June 11, 2015, Davis amended his Rule 32 petition to present additional claims.
On September 16, 2016, Davis initiated this habeas action by filing a § 2254 petition asserting the following claims:
(Doc. 1) at 5-34.
On November 22, 2016, Davis filed a "Motion to Delete Claim(s)" (Doc. 13), in which he stated he wished to withdraw the following claims from his § 2254 petition: Ground One (the actual-innocence claim); Ground Two (the fair cross-section claim): Ground Seven (the confrontation/impeachment claim regarding the victim); and Ground 10 (the Fourth Amendment/unlawful arrest claim). This Court granted Davis's motion to withdraw these claims from his petition.
On December 21, 2016, while his § 2254 petition was pending in this court, Davis filed a second pro se Rule 32 petition in the trial court. See (Doc. 23-1) at 10-34. In that petition, Davis presented claims that (1) the statute under which he was convicted violated the Equal Protection Clause because it proscribed his right "to enter into and maintain certain intimate human relationship conduct without intervention of the government"; (2) the trial court's jury instruction regarding § 13A-6-138, Ala. Code 1975, created a misleading "mandatory rebuttable presumption" that Davis was in a dating relationship, i.e., a "qualified relationship" with the victim; and (3) his 30-year sentence violated the principles of Apprendi v. New Jersey, 530 U.S. 466 (2000).
On January 18, 2017, the trial court entered an order denying the Rule 32 petition. (Doc. 23-1) at 37. Davis appealed, and on March 28, 2017, the Alabama Court of Criminal Appeals issued a memorandum opinion affirming the trial court's judgment denying the Rule 32 petition. (Doc. 23-4). Davis applied for rehearing, which was overruled. He then filed a petition for writ of certiorari with the Alabama Supreme Court, which that court denied on October 13, 2017. (Docs. 23-5 & 23-6).
On November 3, 2017, Davis amended his § 2254 petition to add the same claims he presented to the state courts in his second Rule 32 petition. (Doc. 18).
Respondents argue (Docs. 8 & 23) that all of Davis's claims, in his § 2254 petition and in the amendment thereto, are procedurally defaulted, either because the last state court to review the claims clearly and expressly rejected the claims based on a procedural bar or because the claims were unexhausted in the state courts and Davis cannot return to state court to exhaust them.
For the reasons that follow, it is the recommendation of the Magistrate Judge that Davis's § 2254 petition, as amended, be denied without an evidentiary hearing and this case be dismissed with prejudice.
Before a § 2254 petitioner may obtain federal habeas corpus review, he must exhaust his federal claims by raising them in the appropriate court, allowing the state courts to decide the merits of the constitutional issue raised. 28 U.S.C. § 2254(b)(1) & (c); Duncan v. Walker, 533 U.S. 167, 178-79 (2001). To exhaust a claim fully, a petitioner must "invok[e] one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). In Alabama, a complete round of the established appellate review process includes an appeal to the Alabama Court of Criminal Appeals, an application for rehearing to that court, and a petition for discretionary review— a petition for a writ of certiorari—filed in the Alabama Supreme Court. Smith v. Jones, 256 F.3d 1135, 1140-41 (11th Cir. 2001); Ala. R. App. P. 39 & 40. The exhaustion requirement applies to state post-conviction proceedings and to direct appeals. See Pruitt v. Jones, 348 F.3d 1355, 1359 (11th Cir. 2003).
Habeas claims not properly exhausted in the state courts are procedurally defaulted if presentation of the claims in state court would be barred by state procedural rules. Gray v. Netherland, 518 U.S. 152, 161-62 (1996); Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991). "[I]f the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred[,] . . . there is a procedural default for purposes of federal habeas." Coleman, 501 U.S. at 735 n.1 (citations omitted); see Henderson v. Campbell, 353 F.3d 880, 891 (11th Cir. 2003).
Federal habeas review may be unavailable for claims that a state court has rejected on state procedural grounds. Coleman, 501 U.S. at 729. When a state prisoner fails to follow state procedural rules, thereby procedurally defaulting on a claim, the authority of federal courts to review the prisoner's state court criminal conviction is "severely restricted." Johnson v. Singletary, 938 F.2d 1166, 1173 (11th Cir. 1991). "Federal review of a petitioner's claim is barred by the procedural-default doctrine if the last state court to review the claim states clearly and expressly that its judgment rests on a procedural bar, and that bar provides an adequate and independent state ground for denying relief."
A habeas petitioner can overcome a procedural default either through showing cause for the default and resulting prejudice, Murray v. Carrier, 477 U.S. 478, 488 (1986), or establishing a "fundamental miscarriage of justice," which requires a colorable showing of actual innocence, Schlup v. Delo, 513 U.S. 298, 324-27 (1995). Cause for a procedural default must ordinarily turn on whether the petitioner can show that some objective factor external to the defense impeded efforts to comply with the state's procedural rules. Murray, 477 U.S. at 488; United States v. Frady, 456 U.S. 152, 170 (1982). Examples of such external impediments include the factual or legal basis for a claim was not reasonably available to counsel, interference with the defense by government officials, or constitutionally ineffective assistance of counsel. Murray, 477 U.S. at 488. To establish prejudice, a petitioner must show that the errors worked to his "actual and substantial disadvantage, infecting his entire [proceeding] with error of constitutional dimensions." Id. at 494 (internal quotations and emphasis omitted). Prisoners asserting actual innocence as a gateway to review of defaulted claims must establish that, in light of new evidence, "it is more likely than not that no reasonable juror would have found [the] petitioner guilty beyond a reasonable doubt."
Davis claims that § 13A-6-138, Ala. Code 1975, the statute defining domestic violence by strangulation or suffocation, is unconstitutionally vague. (Doc. 1) at 27.
Respondents observe that Davis raised this claim on direct appeal, where he argued that § 13A-6-138 is vague and overbroad. In its memorandum opinion affirming Davis's conviction, the Alabama Court of Criminal Appeals held this claim had not been preserved for appellate review because it was raised for the first time on appeal. See (Doc. 8-4) at 4. The Alabama Court of Criminal Appeals' application of the well-established rule of preservation constituted an adequate and independent state procedural ground for denying relief. See Harris v. Reed, 489 U.S. 255, 264 n.10 (1989); Atkins, 965 F.2d at 955. This procedural rule is firmly established and regularly followed by Alabama appellate courts.
Davis sets forth no grounds as cause excusing his procedural default. Further, he does not argue that the actual-innocence exception provides a gateway for review of his procedurally defaulted claim. Because Davis fails to demonstrate cause or actual innocence excusing his procedural default, his claim that § 13A-6-138 is unconstitutionally vague is foreclosed from federal habeas review.
Davis claims his 30-year sentence under Alabama's HFOA violates the Eighth Amendment's prohibition against cruel and unusual punishment. (Doc. 1) at 29.
Respondents correctly observe that Davis did not raise this claim in the state courts. Therefore, the claim is unexhausted. Davis cannot return to the state courts to litigate this claim, because the claim would be barred as untimely under the one-year limitation period in Ala. R. Crim. P. 32.2(c); any Rule 32 petition presenting the claim would be considered a successive petition under Ala. R. Crim. P. 32.2(b); and the claim would be procedurally barred under Ala. R. Crim. P. 32.2(a)(3) & (5), because it is a claim that could have been, but was not, raised and addressed at trial and on appeal.
Davis also sets forth no grounds as cause excusing his procedural default. Further, he does not argue that the actual-innocence exception provides a gateway for review of this defaulted claim. Because Davis fails to demonstrate cause or actual innocence excusing his procedural default, his claim that his 30-year sentence under Alabama's HFOA violates the Eighth Amendment's prohibition against cruel and unusual punishment is foreclosed from federal habeas review.
Davis claims that the State failed to prove a prima facie case of domestic violence by strangulation or suffocation. (Doc. 1) at 31.
Davis raised this claim in his Rule 32 petition and on appeal from the denial of his Rule 32 petition. In its memorandum opinion affirming the denial of Davis's Rule 32 petition, the Alabama Court of Criminal Appeals held this claim was procedurally barred under Rule 32.2(a)(5) of the Alabama Rules of Criminal Procedure because it could have been, but was not, raised and addressed on direct appeal. (Doc. 8-12) at 5-6; see Ala. R. Crim. P. 32.2(a)(5). The state court's application of Ala. R. Crim. P. 32.2(a)(5) constituted an adequate and independent state procedural ground for denying relief. Harris, 489 U.S. at 264 n.10. This procedural bar is firmly established and regularly followed by Alabama appellate courts. See, e.g., Tucker v. State, 696 So.2d 1170, 1171-73 (Ala. Crim. App. 2006); Brownlee v. Haley, 306 F.3d 1043, 1065-66 (11th Cir. 2002). Consequently, Davis's claim is procedurally defaulted.
Davis sets forth no grounds as cause excusing his procedural default. Further, he does not argue that the actual-innocence exception provides a gateway for review of this defaulted claim. Because Davis fails to demonstrate cause or actual innocence excusing his procedural default, his claim that the State failed to prove a prima facie case of domestic violence by strangulation or suffocation is foreclosed from federal habeas review.
Davis claims his Sixth Amendment right to confrontation was violated when the trial court limited the defense's cross-examination of a police officer regarding whether the victim's injuries could have been self-inflicted. (Doc. 1) at 31-32.
Davis raised this claim in his Rule 32 petition, but not on appeal from the denial of his Rule 32 petition. In its memorandum opinion affirming the denial of Davis's Rule 32 petition, the Alabama Court of Criminal Appeals found that the claim was abandoned for purposes of review because it had not been pursued on appeal. (Doc. 8-12) at 6-7. The state court's application of this procedural bar constituted an adequate and independent state procedural ground for denying relief. Harris, 489 U.S. at 264 n.10. This procedural bar is firmly established and regularly followed by Alabama appellate courts. See, e.g., Brownlee v. State, 666 So.2d 91, 93 (Ala. Crim. App. 1995); Burks v. States, 600 So.2d 374, 380 (Ala. Crim. App. 1991). Consequently, Davis's claim here is procedurally defaulted.
Davis sets forth no grounds as cause excusing his procedural default. Further, he does not argue that the actual-innocence exception provides a gateway for review of this defaulted claim. Because Davis fails to demonstrate cause or actual innocence excusing his procedural default, his claim that his Sixth Amendment right to confrontation was violated when the trial court limited the defense's cross-examination of a police officer regarding whether the victim's injuries could have been self-inflicted is foreclosed from federal habeas review.
Davis claims the State improperly impeached a defense witness by using an incident report created by a police investigator. (Doc. 1) at 33-34.
Davis raised this claim in his Rule 32 petition, but not on appeal from the denial of his Rule 32 petition. In its memorandum opinion affirming the denial of Davis's Rule 32 petition, the Alabama Court of Criminal Appeals found that the claim was abandoned for purposes of review because it had not been pursued on appeal. (Doc. 8-12) at 6-7. The state court's application of this procedural bar constituted an adequate and independent state procedural ground for denying relief. And this procedural bar is firmly established and regularly followed by Alabama appellate courts. See, e.g., Brownlee, 666 So. 2d at 93; Burks, 600 So. 2d at 380. Consequently, this claim is procedurally defaulted.
Davis sets forth no grounds as cause excusing his procedural default. And he does not argue that the actual-innocence exception provides a gateway for review of this defaulted claim. Because Davis fails to demonstrate cause or actual innocence excusing his procedural default, his claim that the State improperly impeached a defense witness by using an incident report created by a police investigator is foreclosed from federal habeas review.
In a claim that is difficult to decipher, Davis contends that he "never used or touched" the gun on the day the victim was assaulted, "but was charged with an offense," receiving stolen property in the third degree, which "was brought up at the Petitioner's sentencing hearing," and "that violated the Fourth Amendment of the U.S. Constitution." (Doc. 1) at 34.
Respondents correctly observe that Davis did not raise this claim in the state courts. Therefore, the claim is unexhausted. Davis cannot return to the state courts to litigate the claim, because it would be barred as untimely under the one-year limitation period in Ala. R. Crim. P. 32.2(c); any Rule 32 petition presenting the claim would be considered a successive petition under Ala. R. Crim. P. 32.2(b); and the claim would be procedurally barred under Ala. R. Crim. P. 32.2(a)(3) & (5), because it is a claim that could have been, but was not, raised and addressed at trial and on appeal. Davis sets forth no grounds as cause excusing his procedural default. And, he does not argue that the actual-innocence exception provides a gateway for review of this defaulted claim. Because Davis fails to demonstrate cause or actual innocence excusing his procedural default, this claim is foreclosed from federal habeas review.
In the amendment to his § 2254 petition, Davis claims that the statute under which he was convicted violated the Equal Protection Clause because it proscribed his right "to enter into and maintain certain intimate human relationship conduct without intervention of the government." See (Doc. 18).
Davis raised this claim in his second Rule 32 petition and on appeal from the denial of that Rule 32 petition. In its memorandum opinion affirming the denial of Davis's second Rule 32 petition, the Alabama Court of Criminal Appeals held this claim was procedurally barred under Ala. R. Crim. P. 32.2(a)(3) & (5), because it was a claim that could have been, but was not, raised and addressed at trial and on appeal. (Doc. 23-4) at 3. The state court's application of Ala. R. Crim. P. 32.2(a)(3) & (5) constituted an adequate and independent state procedural ground for denying relief. Harris, 489 U.S. at 264 n.10. These procedural bars are firmly established and regularly followed by Alabama appellate courts. See, e.g., Tucker, 696 So. 2d at 1171-73; Brownlee, 306 F.3d at 1065-66 (11th Cir. 2002). Consequently, Davis's claim is procedurally defaulted. Davis sets forth no grounds as cause excusing his procedural default. And he does not argue that the actual-innocence exception provides a gateway for review of this defaulted claim. Because Davis fails to demonstrate cause or actual innocence excusing his procedural default, this claim is foreclosed from federal habeas review.
In the amendment to his § 2254 petition, Davis claims that the trial court's jury instruction regarding § 13A-6-138, Ala. Code 1975, created a misleading "mandatory rebuttable presumption" that Davis was in a dating relationship, i.e., a "qualified relationship" with the victim. See (Doc. 18).
Davis raised this claim in his second Rule 32 petition and on appeal from the denial of that Rule 32 petition. In its memorandum opinion affirming the denial of Davis's second Rule 32 petition, the Alabama Court of Criminal Appeals held that this claim was procedurally barred under Ala. R. Crim. P. 32.2(a)(3) & (5), because it was a claim that could have been, but was not, raised and addressed at trial and on appeal. (Doc. 23-4) at 3. The state court's application of Ala. R. Crim. P. 32.2(a)(3) & (5) constituted an adequate and independent state procedural ground for denying relief. Harris, 489 U.S. at 264 n.10. These procedural bars are firmly established and regularly followed by Alabama appellate courts. Consequently, Davis's claim is procedurally defaulted. Davis sets forth no grounds as cause excusing his procedural default. And he does not argue that the actual-innocence exception provides a gateway for review of this defaulted claim. Because Davis fails to demonstrate cause or actual innocence excusing his procedural default, this claim is foreclosed from federal habeas review.
In the amendment to his § 2254 petition, Davis claims that his 30-year sentence violated the principles of Apprendi v. New Jersey, 530 U.S. 466 (2000). See (Doc. 18).
Davis raised this claim in his second Rule 32 petition and on appeal from the denial of that Rule 32 petition. In its memorandum opinion affirming the denial of Davis's second Rule 32 petition, the Alabama Court of Criminal Appeals held that this claim was procedurally barred under Ala. R. Crim. P. 32.2(a)(3) & (5), because it was a claim that could have been, but was not, raised and addressed at trial and on appeal. (Doc. 23-4) at 3. As with Davis's other amended claims, the state court's application of Ala. R. Crim. P. 32.2(a)(3) & (5) constituted an adequate and independent state procedural ground for denying relief. Harris, 489 U.S. at 264 n.10. These procedural bars are firmly established and regularly followed by Alabama appellate courts. Consequently, Davis's claim is procedurally defaulted. Davis sets forth no grounds as cause excusing his procedural default. And he does not argue that the actual-innocence exception provides a gateway for review of this defaulted claim. Because Davis fails to demonstrate cause or actual innocence excusing his procedural default, this claim is foreclosed from federal habeas review.
Accordingly, it is the RECOMMENDATION of the Magistrate Judge that the petition for writ of habeas corpus under 28 U.S.C. § 2254 be DENIED and this case be DISMISSED with prejudice.
The Clerk of the Court is DIRECTED to file the Recommendation of the Magistrate Judge and to serve a copy on the petitioner. The petitioner is DIRECTED to file any objections to this Recommendation
Failure to file written objections to the proposed findings and recommendations in the Magistrate Judge's report shall bar a party from a de novo determination by the District Court of factual findings and legal issues covered in the report and shall "waive the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions" except upon grounds of plain error if necessary in the interests of justice. 11th Cir. R. 3-1; see Resolution Trust Co. v. Hallmark Builders, Inc., 996 F.2d 1144, 1149 (11th Cir. 1993); Henley v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989).
Harris v. Reed, 489 U.S. 255, 264 n.10 (1989).
513 U.S. at 324.
