RECOMMENDATION OF THE MAGISTRATE JUDGE

TERRY F. MOORER, Magistrate Judge.

This matter is before the court on a petition for writ of habeas corpus under 28 U.S.C. § 2254 filed by Alabama inmate Deangelo Johnson ("Johnson") on November 29, 2012.

I. BACKGROUND

On August 22, 2008, Johnson pled guilty in the Houston County Circuit Court to trafficking in marijuana, in violation of § 13A-12-231, Ala. Code 1975. The trial court sentenced him as a habitual offender to 18 years in prison. He appealed to the Alabama Court of Criminal Appeals, raising a claim that the trial court erred in denying his motion to suppress drug evidence seized from his person and his vehicle.1 See Exh. B.2 On July 31, 2009, by unpublished memorandum opinion, the Alabama Court of Criminal Appeals affirmed Johnson's conviction. Exh. D. Johnson applied for rehearing, which was overruled on August 21, 2009. Exh. E. He then filed a petition for certiorari review with the Alabama Supreme Court, which that court denied on May 7, 2010, issuing a certificate of judgment the same day. Exh. F.

On May 10, 2011, Johnson filed with the trial court (the Circuit Court of Houston County) a petition for post-conviction relief under Ala. R. Crim. P. 32, asserting the following claims:

Exh. G at 6-36.

On October 27, 2011, the trial court entered an order denying the Rule 32 petition. Exh. G at 41-42. Johnson then appealed to the Alabama Court of Criminal Appeals, reasserting the claims in his Rule 32 petition. Exh. H. On April 20, 2012, by unpublished memorandum opinion, that court affirmed the trial court's judgment denying Johnson's Rule 32 petition. Exh. J. Specifically, the appellate court held that (1) Johnson's substantive claims regarding the search and seizure were procedurally barred under Ala. R. Crim. P. 32.2(a)(2) and (a)(4), because they were raised and addressed at trial or on appeal; (2) the remainder of Johnson's substantive claims were nonjurisdictional and were procedurally barred under Ala. R. Crim. P. 32.2(a)(3) and (a)(5), because they could have been, but were not, raised at trial or on appeal; and (3) Johnson's claim of ineffective assistance of counsel was without merit. Exh. J at 2-9. Johnson applied for rehearing, which was overruled on May 18, 2012. Exh. K. He filed a petition for certiorari review with the Alabama Supreme Court, which that court denied on August 10, 2012, issuing a certificate of judgment the same day. Exh. L.

On November 29, 2012, Johnson filed this petition for writ of habeas corpus under 28 U.S.C. § 2254, reasserting the claims he presented in state court in his Rule 32 proceedings. Doc. No. 1. The respondents answer that the state court adjudications finding no merit in Johnson's claim of ineffective assistance of counsel were correct and that Johnson has procedurally defaulted on his remaining claims because the last state court to render an opinion on the claims correctly found they were procedurally defaulted under state rules. Doc. No. 9. Following a careful review of Johnson's § 2254 petition, the undersigned finds Johnson is not entitled to habeas relief on the basis of any of his claims and that his petition should be denied without an evidentiary hearing. Rule 8(a), Rules Governing Section 2254 Cases in United States District Courts.

II. DISCUSSION

A. Standard of Review for Claims Adjudicated on Merits by State Courts

"When it enacted the Antiterrorism and Effective Death Penalty Act of 1996 (`AEDPA'), Congress significantly limited the circumstances under which a habeas petitioner may obtain relief." Hardy v. Allen, 2010 WL 9447204, at *7 (N.D. Ala. Sep. 21, 2010). To prevail on a properly presented § 2254 claim adjudicated on the merits by the state courts, a petitioner must show that a decision by the state courts was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or 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)(1) and (2);3 see Williams v. Taylor, 529 U.S. 362, 404-05 & 412-13 (2000). A state court's decision can be "contrary to" federal law either (1) if it fails to apply the correct controlling authority, or (2) if it applies the controlling authority to a case involving facts "materially indistinguishable" from those in a controlling case, but nonetheless reaches a different result. Williams, 529 U.S. at 405-06. A state court's decision can involve an "unreasonable application" of federal law if it either (1) correctly identifies the governing rule but then applies it to a new set of facts in a way that is objectively unreasonable, or (2) extends or fails to extend a clearly established legal principle to a new context in a way that is objectively unreasonable. Id. at 407. "Federal habeas relief is available under the `unreasonable application' standard only if the state court's application of clearly established federal law was `objectively unreasonable.'" Parker v. Head, 244 F.3d 831 (11th Cir. 2001) (citing Williams, 529 U.S. at 409).

Federal district courts are likewise directed to determine whether the state court based its findings on "an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2). A state court's determinations of fact shall be "presumed to be correct," and the habeas petitioner "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). However, even when the state court addresses a question of law, this court is not authorized "to evaluate [a petitioner's] claim de novo rather than through the lens of § 2254(d)." Price v. Vincent, 538 U.S. 634, 639 (2003).

"This is a `difficult to meet," Harrington v. Richter, 562 U.S. 86, ___, 131 S.Ct. 770, 786 (2011), and `highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt,' Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)." Cullen v. Pinholster, ___ U.S. ___, ___, 131 S.Ct. 1388, 1398 (2011). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as `fairminded jurists could disagree' on the correctness of the state court's decision." Harrington, 131 S.Ct. at 786 (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

1. Assessing Claims of Ineffective Assistance of Counsel

A claim of ineffective assistance of counsel must be evaluated against the two-part test announced in Strickland v. Washington, 466 U.S. 668 (1984). First, a petitioner must show that "counsel's representation fell below an objective standard of reasonableness." Id. at 689. Second, the petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.

Id. at 687.

Scrutiny of counsel's performance is "highly deferential," and the court indulges a "strong presumption" that counsel's performance was reasonable. Chandler v. United States, 218 F.3d 1305, 1314 (11th Cir. 2000) (internal quotation marks omitted). The court will "avoid second-guessing counsel's performance: It does not follow that any counsel who takes an approach [the court] would not have chosen is guilty of rendering ineffective assistance." Id. (internal quotation marks and brackets omitted).

The prejudice prong does not focus only on the outcome; rather, to establish prejudice, the petitioner must show that counsel's deficient representation rendered the result of the trial fundamentally unfair or unreliable. See Lockhart v. Fretwell, 506 U.S. 364, 369 (1993) ("[A]n analysis focusing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective."). "Unreliability or unfairness does not result if the ineffectiveness of counsel does not deprive the defendant of any substantive or procedural right to which the law entitles him." Id. at 372.

Here, because the state court ruled on the merits of Johnson's ineffective assistance of counsel claim, this court's § 2254 review under Strickland is another step removed from the original analysis, or as the Supreme Court puts it, "doubly deferential." Burt v. Titlow, ___ U.S. ___, ___, 134 S.Ct. 10, 13 (2013) (quotation marks and citation omitted); see Tanzi v. Sec'y, Florida Dep't of Corr., 772 F.3d 644, 652 (11th Cir. 2014) (quoting Burt).

2. Johnson's Claim That Trial Counsel Rendered Ineffective Assistance

Johnson claims his trial counsel was ineffective for failing to file a motion to suppress the drug evidence because there was no reasonable suspicion or probable cause to search his vehicle and he never consented to the search. Doc. No. 1 at 9, 15-16.

Johnson presented this claim in his Rule 32 petition, and the trial court found that the claim lacked merit. The Alabama Court of Criminal Appeals affirmed the Rule 32 court's judgment, holding that the claim was properly denied as without merit. The appellate court specifically found:

Exh. J at 3-9.

As the state appellate court found, before Johnson pled guilty his trial counsel filed a motion to suppress the State's evidence, see Exh. A at 14-15, which was heard by the trial court and denied, id. at 92-128. Trial counsel reserved Johnson's right to appeal the trial court's ruling on the suppression motion, and Johnson pursued the suppression issue on direct appeal. On direct appeal, the appellate court found that law enforcement officers' initial investigatory stop of Johnson's vehicle was supported by reasonable suspicion (based on information provided by a reliable confidential informant) and that the subsequent search of the vehicle and Johnson was supported by probable caus (based on the officers' detection of the strong odor of marijuana in the vehicle during the investigatory stop). See Exh. D. Thus, Johnson fails to show that his trial counsel failed to file a motion to suppress the drug evidence. He establishes neither deficient performance nor resulting prejudice.4 Strickland, 466 at 687. Accordingly, this court finds that the decision of the Alabama state court was a reasonable determination of the facts in light of the evidence presented, see 28 U.S.C. § 2254(d)(2), and that the decision was neither contrary to, nor an unreasonable application of, clearly established federal law, see 28 U.S.C. § 2254(d)(1). Johnson is not entitled to habeas relief based on this claim.

B. Procedurally Defaulted Claims

The respondents argue that Johnson has procedurally defaulted the remaining claims (i.e., the substantive claims) in his petition because the last state court to render an opinion on the claims correctly found they were procedurally defaulted under state rules. Doc. No. 9. This court agrees.

The procedural default doctrine ensures that "state courts have had the first opportunity to hear the claim sought to be vindicated in a federal habeas proceeding." Picard v. Connor, 404 U.S. 270, 276 (1971). "Federal review of a petitioner's claim is barred by the procedural-default doctrine if the last state court to review the claim states clearly and expressly that its judgment rests on a procedural bar, and that bar provides an adequate and independent state ground for denying relief." Atkins v. Singletary, 965 F.2d 952, 955 (11th Cir. 1992)

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

Here, in Johnson's appeal from the denial of his Rule 32 petition, the Alabama Court of Criminal Appeals held that Johnson's substantive claims regarding the search and seizure were procedurally barred under Ala. R. Crim. P. 32.2(a)(2) and (a)(4) because they were raised and addressed at trial or on appeal,5 and that the remainder of Johnson's substantive claims were nonjurisdictional and were procedurally barred under Ala. R. Crim. P. 32.2(a)(3) and (a)(5), because they could have been, but were not, raised at trial or on appeal. See Exh. J at 1-3. This court must respect the state court decision as an adequate and independent state law ground precluding federal review. See Coleman v. Thompson, 501 U.S. 722, 729 (1991). Because the Alabama Court of Criminal Appeals held that Johnson's substantive claims were procedurally barred under Ala. R. Crim. P. 32.2(a), the substantive claims in his habeas petition are procedurally defaulted.

This court may reach the merits of Johnson's procedurally defaulted claim only in two narrow circumstances:

Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir. 2003).

"[C]ause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule" or that the procedural default resulted from ineffective assistance of counsel.6 Murray v. Carrier, 477 U.S. 478, 488 (1986). Prejudice, in this context, means a reasonable probability that the outcome would have been different. Jenkins v. Bullard, 210 Fed. App'x 895, 898-901 (11th Cir. 2006). Johnson demonstrates neither cause for his failure to present his federal habeas claim to the state courts in compliance with applicable procedural rules, nor the existence of actual prejudice emanating from infringement of federal law.

Absent a showing of cause and prejudice, a federal habeas court may yet consider a procedurally defaulted claim if a "fundamental miscarriage of justice" has "probably resulted in the conviction of one who is actually innocent." Smith v. Murray, 477 U.S. 527, 537-38 (1986). "It is important to note in this regard that `actual innocence' means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623-24 (1998).

Schlup v. Delo, 513 U.S. 298, 324 (1995). Johnson fails to make the requisite showing of actual innocence, and indeed makes no attempt to do so. He points to no new evidence — nor suggests that any exists — that could satisfy the difficult standard set forth in Schlup. Consequently, his procedurally defaulted claims are foreclosed from federal habeas review.

III. CONCLUSION

Accordingly, it is the RECOMMENDATION of the Magistrate Judge that the petition for habeas corpus relief under 28 U.S.C. § 2254 filed by Johnson be denied and that this case be dismissed with prejudice. It is further

ORDERED that on or before March 16, 2015 the parties shall file objections to the said Recommendation. Any objections filed must specifically identify the findings in the Magistrate Judge's Recommendation to which the party is objecting. Frivolous, conclusive or general objections will not be considered by the District Court. The parties are advised that this Recommendation is not a final order; therefore, it is not appealable.

Failure to file written objections to the proposed findings and advisements in the Magistrate Judge's Recommendation shall bar the party from a de novo determination by the District Court of issues covered in the Recommendation and shall bar the party from attacking on appeal factual findings in the Recommendation 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). See Stein v. Reynolds 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), adopting as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981.