RECOMMENDATION OF THE MAGISTRATE JUDGE

WALLACE CAPEL, Jr., Chief Magistrate Judge.

This matter concerns a pro se petition for writ of habeas corpus under 28 U.S.C. § 2254 filed by Alabama inmate Vertis Anthony ("Anthony") on August 25, 2015. Doc. No. 1.1 For the reasons that follow, it is the recommendation of the magistrate judge that Anthony's § 2254 petition be denied without an evidentiary hearing and this case be dismissed with prejudice.

I. BACKGROUND AND PROCEDURAL HISTORY

In November 2011, a Bullock County jury found Anthony guilty of attempted murder, in violation of §§ 13A-4-2 & 13A-6-2, Ala. Code 1975. On December 8, 2011, the trial court sentenced Anthony to 35 years in prison.

On appeal, Anthony's appellate counsel filed a brief and a motion to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967). In his brief, counsel asserted he found no meritorious issues for appellate review. Anthony was afforded an opportunity to submit pro se issues, and did so in a brief where he asserted claims that, among other things, challenged the sufficiency of the evidence. Doc. No. 32-3.

On September 21, 2012, the Alabama Court of Criminal Appeals affirmed Anthony's conviction by unpublished opinion, holding that "[a]fter thoroughly reviewing the record in this case and Anthony's pro se issues, this Court has not found any arguable issues." Doc. No. 32-4. Anthony applied for rehearing, which was overruled, and he subsequently filed a petition for writ of certiorari with the Alabama Supreme Court, which that court dismissed as untimely. Doc. No. 32-6. A certificate of judgment issued on November 21, 2012. Doc. No. 32-5.

On September 11, 2013, Anthony filed a pro se petition in the trial court seeking post-conviction relief under Rule 32 of the Alabama Rules of Criminal Procedure. Doc. No. 32-7 at 4-19. Anthony's Rule 32 petition asserted multiple claims, including allegations that his conviction was obtained by a coerced confession and an unlawful search of his car; he was unlawfully arrested; the State failed to disclose favorable evidence to the defense; his conviction violated the protection against double jeopardy; his sentence exceeded the maximum authorized by law; newly discovered evidence required that his conviction be vacated; the State's evidence was insufficient; the Alabama Supreme Court incorrectly dismissed his petition for certiorari on direct review as untimely; his trial counsel rendered ineffective assistance; the indictment was defective; and the trial court lacked jurisdiction to render judgment or impose sentence. Id. at 7-16.

On January 21, 2014, without waiting for a response by the State, the trial court entered an order summarily denying Anthony's Rule 32 petition, finding Anthony had failed to satisfy the pleading requirements of Ala.R.Crim.P. 32.6(b).2 Doc. No. 32-7 at 29. Anthony appealed, reasserting most claims in his Rule 32 petition and also asserting numerous issues not raised in the petition. Doc. No. 32-8.

On March 6, 2015, the Alabama Court of Criminal Appeals affirmed the trial court's judgment denying Anthony's Rule 32 petition. Doc. No. 32-9. Setting forth its reasoning in affirming the trial court's judgment, the Alabama Court of Criminal Appeals stated:

Doc. No. 32-9 at 6-7.

Anthony applied for rehearing, which the Alabama Court of Criminal Appeals overruled. Subsequently, the Alabama Supreme Court dismissed his petition for writ of certiorari as untimely filed. Doc. Nos. 32-10 & 32-11. A certificate of judgment issued on May 6, 2015. Doc. No. 32-12.

On August 25, 2015, Anthony initiated this habeas action by filing a § 2254 petition asserting claims that (1) the trial court lacked jurisdiction to try his case; (2) his trial counsel was ineffective for (a) failing to object to or "cure" the "constructive amendment in the indictment" and (b) failing to object to the jury instructions, "which followed [the] indictment which contained constructive amendment"; and (3) his conviction "conflicted with prior decisions." Doc. No. 1 at 10-15, 30-47. Twice thereafter, and before the Respondents could file an answer, Anthony filed amendments to his petition, which, to the extent they may be understood to touch upon issues pertinent to his conviction, appear to reargue or elaborate upon the claims in his original petition. Doc. Nos. 16 & 20.

In their answer to Anthony's petition, the Respondents state that Anthony appears to have exhausted his claims in the state courts by presenting them in his Rule 32 petition and on appeal from the denial of his Rule 32 petition. Doc. No. 32 at 5. Elsewhere in their answer, however, the Respondents indicate that Anthony failed to exhaust his claims in the state courts, because both of his appeals—on direct review and in the Rule 32 proceedings—ended with the Alabama Supreme Court dismissing his petitions for writ of certiorari as untimely. Id. at 7. Such dismissals would mean Anthony's claims did not receive a complete round of appellate review in the state courts. Id; see O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (To exhaust a claim fully, a petitioner must "invok[e] one complete round of the State's established appellate review process."). In any event, the Respondents go on to argue that Anthony's claims are procedurally defaulted because the last state court to review and give its reasons for rejecting the claims, the Alabama Court of Criminal Appeals in Anthony's Rule 32 appeal, applied a state procedural bar in denying relief, specifically finding that Anthony failed to comply with Ala.R.App.P. 28(a)(10). Id. at 6-11.

The undersigned finds that Anthony's § 2254 petition fails for several reasons. First, by failing to comply with state Rule 28(a)(10) in his appeal from the denial of his Rule 32 petition, Anthony procedurally defaulted on each claim asserted in the instant petition. Also, Anthony's claims are arguably unexhausted and defaulted. Finally, even if Anthony had not defaulted in the state court, his claims—which consist almost entirely of conclusory allegations unsupported by specifics—would nonetheless fail on the merits.

II. DISCUSSION

A. Procedural Default

1. Adequate and Independent State Ground

Federal habeas review may be unavailable for claims that a state appellate court has rejected on state procedural grounds. Coleman v. Thompson, 501 U.S. 722, 729 (1991). 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." Atkins v. Singletary, 965 F.2d 952, 955 (11th Cir. 1992); see Marek v. Singletary, 62 F.3d 1295, 1301-02 (11th Cir. 1995).

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

Here, after the trial court denied Anthony's Rule 32 petition, the Alabama Court of Criminal Appeals affirmed due to Anthony's failure to comply with Rule 28(a)(10) of the Alabama Rules of Appellate Procedure,3 explaining that Anthony's appellate brief was "a mishmash of numerous federal and state case citations, citations to the Code of Alabama, and to the federal code, with no correspondence to the issues in his petition" and indicating that the general propositions presented by Anthony were unconnected to the facts and record in his case; thus, such claims were deemed waived for purposes of appeal. See Doc. No. 32-9 at 6-7. Anthony's brief from his Rule 32 appeal is contained in the record. Doc. No. 32-8. Suffice it to say, the brief is accurately described by the Alabama Court of Criminal Appeals. It is indeed a "mishmash" of citations to federal and state case law, statutes, and rules of procedure with no discernable correspondence to the issues in Anthony's Rule 32 petition.

The Alabama Court of Criminal Appeals' application of Ala.R.App.P. 28(a)(10) constitutes an adequate and independent state procedural ground. Harris, 489 U.S. at 264 n.10. This procedural bar is firmly established and regularly followed by Alabama appellate courts.4 See, e.g., Hamm v. State, 913 So.2d 460, 486 & 490-91 (Ala. Crim. App. 2002); Gay v. State, 562 So.2d 283, 289 (Ala. Crim. App. 1990). The express language of Rule 28(a)(10) makes clear that an appellant must list and explain the reasons for his claims and provide record citations in support thereof. The claims that the Alabama Court of Criminal Appeals found to be waived in Anthony's case did not comply with this rule. Consequently, Anthony's habeas claims are procedurally defaulted.5 See, e.g., Hamm v. Allen, 2013 WL 1282129, at *19-21 (N.D. Ala. Mar. 27, 2013) (petitioner's claims procedurally defaulted where Alabama Court of Criminal Appeals found that such claims were waived due to petitioner's failure to comply with Ala.R.App.P. 28); Bester v. Patterson, 2013 WL 6191520 at *11-12 (N.D. Ala. Nov. 26, 2013) (same).

2. Exhaustion

Even if Anthony's claims regarding the trial court's alleged lack of jurisdiction and the "conflict" between his conviction and "prior decisions" might be considered substantive claims capable of being exhausted on direct review (as opposed to through Rule 32 proceedings, where claims of ineffective assistance of counsel are ideally raised in Alabama courts), Anthony failed to exhaust these two claims on direct review.6 Assuming (without finding) that these claims were set forth in the muddled arguments contained in Anthony's pro se issues submitted on direct appeal, Anthony later submitted an untimely petition for writ of certiorari in the Alabama Supreme, which that court dismissed as untimely filed.7 Therefore, Anthony did not receive a complete round of appellate review in the state court on any claims he asserted on direct appeal, and such claims were not properly exhausted.8 See O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). If these claims are deemed to be substantive claims capable of being exhausted on direct review, Anthony may no longer return to the state courts to exhaust such claims, because the time for him to seek state certiorari review has long since passed, and he has no other available remedies. See Ala.R.App.P. 39(c)(2) (petition for writ of certiorari must be filed with the Alabama Supreme Court within 14 days after the decision of the Alabama Court of Criminal Appeals on the appellant's application for rehearing). The exhaustion and preclusion rules coalesce into the procedural default of such claims.9 See Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991).

3. Exceptions to Procedural Default

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).10 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 a factual or legal basis for a claim that was not reasonably available, 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).

After the Respondents filed their answer arguing that Anthony had procedurally defaulted his claims (Doc. No. 32), this court entered an order (Doc. No. 33) allowing Anthony to respond to the Respondents' answer. Although Anthony filed a response (Doc. No. 39), it did not set forth grounds that establish cause excusing his procedural default. To the extent Anthony's arguments in his response can be understood, it appears Anthony maintains his procedural default was the result of ineffective assistance by his trial counsel and by his counsel on direct appeal. See Doc. No. 39 at 1-6. Constitutionally ineffective assistance of counsel can be used as cause to excuse procedural default, but it does not apply in Anthony's case. The procedural default of Anthony's claims occurred at the appeal stage of the Rule 32 proceedings, when Anthony submitted an appellate brief that did not comply with Ala.R.App.P. 28(a)(10). Because a default occurring during Anthony's Rule 32 appeal obviously cannot be attributed to actions by his trial counsel or by his counsel on direct appeal, Anthony fails to demonstrate cause for his procedural default.

Assuming, alternatively, that Anthony's default of his claims regarding the trial court's alleged lack of jurisdiction and the "conflict" between his conviction and "prior decisions" occurred during the direct-review stage of his case, when he filed an untimely petition for writ of certiorari with the Alabama Supreme Court, cause for that default plainly cannot be laid at the feet of trial counsel, nor can cause be predicated on a theory of appellate counsel's alleged ineffective assistance for failing to file a timely petition for writ of certiorari with the Alabama Supreme Court. Applications for rehearing and petitions for writ of certiorari concern discretionary review under Alabama law, see Kinsey v. State, 545 So.2d 200, 2003 (Ala. Crim. App. 1989), and a criminal defendant does not have a constitutional right to counsel to pursue discretionary review. Wainwright v. Torna, 455 U.S. 586, 587 (1982); Ross v. Moffitt, 417 U.S. 600 (1974). Because Anthony had no constitutional right to counsel at the stage of direct review when a timely petition for writ of certiorari could have been filed, he could not be deprived of the effective assistance of counsel at that stage. Torna, 455 U.S. at 587-88. Thus, his appellate counsel's failure to file a timely petition for writ of certiorari cannot establish cause excusing his failure to exhaust his claims.11

Because Anthony fails to establish cause excusing his procedural default, his claims are foreclosed from federal habeas review.

B. Anthony's Claims Also Fail on the Merits.

Even if Anthony's claims were not procedurally defaulted, or if he could overcome that default, his claims would fail on the merits nonetheless. Anthony's § 2254 petition— like his pro se brief on direct appeal, his Rule 32 petition, and the brief he filed in his Rule 32 appeal—consists mainly of a confused (and confusing) hodgepodge of conclusory assertions and citations to federal and state legal authorities with no discernable correspondence to his general claims. As has been noted, those general claims are that (1) the trial court lacked jurisdiction to try his case; (2) his trial counsel was ineffective for (a) failing to object to or "cure" the "constructive amendment in the indictment" and (b) failing to object to the jury instructions, "which followed [the] indictment which contained constructive amendment"; and (3) his conviction "conflicted with prior decisions." Doc. No. 1 at 10-15, 30-47. As discussed below, to the extent Anthony's allegations and arguments in support of his claims are even understandable, they are devoid of colorable merit.

1. Trial Court's Jurisdiction

Anthony's claim that the trial court lacked jurisdiction to try his case appears to be predicated on his unfounded belief that the trial court somehow amended the indictment returned by the grand jury by changing language allegedly in the indictment charging him with "manifesting extreme indifference to human life" and submitting to the jury "the question whether defendant is also guilty of directing indifference to the victim only." Doc. No. 1 at 32; see id. at 10, 33-39. Anthony's claim is wholly unsupported by any evidence. The count in the indictment charging Anthony with attempted murder tracks the language of §§ 13A-4-2 & 13A-6-2, Ala. Code 1975, and contains no mention of "manifesting extreme indifference to human life."12 See Doc. No. 32-13 at 9. In its jury charge, the trial court properly instructed jurors on the elements of the offense of attempted murder and made no mention of Anthony's "directing indifference to the victim." See Doc. No. 32-14 at 223-25. The trial court did not change the language of the indictment or submit an offense different from that charged in the indictment when instructing the jury.

Anthony suggests that the trial court constructively amended the indictment (and thereby lost jurisdiction) by "allow[ing] irrelevant evidence outside what was alleged in the indictment to secure the verdict." Doc. 1 at 38. Anthony does not identify the irrelevant evidence he is referring to here, nor does he establish how he was convicted based upon irrelevant evidence. Certainly, he does not demonstrate how the admission of such evidence amounted to constructive amendment of the indictment or stripped the trial court of jurisdiction. Anthony was charged with attempting to murder the victim by shooting him multiple times with a handgun, and that it what the evidence presented at trial showed. Anthony's claim here is devoid of merit and provides no basis for relief.13

2. Ineffective Assistance of Counsel: Constructive Amendment of Indictment

As noted, Anthony claims his trial counsel was ineffective for (1) failing to object to or "cure" the "constructive amendment in the indictment" and (2) failing to object to the jury instructions, "which followed [the] indictment which contained constructive amendment," which then "became a fatal variance."14 Doc. No. 1 at 12-13, 40-43. To the extent Anthony's allegations of ineffective assistance of counsel are comprehensible, it is apparent they are based on his unfounded belief, discussed above, that the count of the indictment charging him with attempted murder was constructively amended during trial. Anthony does not explain in a coherent manner in what way the indictment was constructively amended, and there is simply no evidence that this is so. Because the indictment was not constructively amended, Anthony's trial counsel could not be ineffective for failing to object to or cure the constructive amendment, or for failing to object to jury instructions that allegedly contained the constructive amendment. Anthony's claim lacks merit and provides no basis for relief.

3. "Conflict with Prior Decisions"

Finally, Anthony claims his conviction "conflicted with prior decisions." Doc. No. 1 at 15, 44-45. Regarding this claim, he cites (1) Alabama case law concerning the so called "merger doctrine," which bars the use of the felony-murder rule when the underlying felony directly results in, or is an integral part of, the homicide,15 and (2) case law and statutes concerning the elements of first-degree assault. Neither the merger doctrine nor the elements of first-degree assault (particularly the element of physical injury that Anthony dwells on in his petition) has anything to do with Anthony's conviction for attempted murder.16 Anthony did not commit a homicide, and physical injury is not an element of attempted murder. Anthony's claim lacks merit and provides no basis for relief.

III. CONCLUSION

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 on or before September 11, 2017. Any objections filed must specifically identify the factual findings and legal conclusions in the Magistrate Judge's Recommendation to which the petitioner objects. Frivolous, conclusive or general objections will not be considered by the District Court.

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).