P. BRADLEY MURRAY, Magistrate Judge.
William N. Lucy, a state prisoner presently in the custody of the respondent, has petitioned this Court for federal habeas corpus relief pursuant to 28 U.S.C. § 2254. Petitioner challenges the validity of his January 6, 2015 conviction in the Circuit Court of Mobile County, Alabama for offering a false instrument for recording against a public servant in violation of Alabama Code § 13A-9-12(c). On January 26, 2015, Lucy was sentenced to a thirty-year term of imprisonment in accordance with Alabama's Habitual Felony Offender Statute, Ala.Code § 13A-5-9. The Alabama Court of Criminal Appeals affirmed Lucy's conviction and sentence by unpublished memorandum opinion issued on February 5, 2016. See Lucy v. State, 225 So.3d 129 (Ala.Crim.App. 2016) (table). Lucy's application for rehearing was denied on March 11, 2016, id., and his petition to the Alabama Supreme Court for writ of certiorari was ultimately stricken due to Petitioner's failure to comply with Rule 39(c)(2) of the Alabama Rules of Appellate Procedure. Lucy filed a Rule 32 petition in the Circuit Court of Mobile County, Alabama collaterally attacking his conviction and sentence on October 26, 2016. (Compare Doc. 20, Exhibit J, March 21, 2017 ORDER with id., Exhibit M, at 2). The trial court summarily denied Lucy's collateral petition without an evidentiary hearing. (See id., Exhibit J, March 21, 2017 ORDER). The Alabama Court of Criminal Appeals affirmed the trial court's judgment by unpublished memorandum decision issued on October 6, 2017. (Id., Exhibit M). Petitioner's application for rehearing was overruled on October 27, 2017 (id., Exhibit O) and the certificate of final judgment issued on November 15, 2017 (id., Exhibit P), Lucy filing no petition for writ of certiorari (compare id. with id. at Exhibit O).
In his petition before this Court, filed May 30, 2018 (see Doc. 12, at 12),
This cause is before the Court on the petition (Doc. 12), Respondent's answer with attachments (see Doc. 20), Petitioner's response (Doc. 27) to the undersigned's August 29, 2018 show cause order (Doc. 21), and Lucy's rebuttal to the State's answer (Doc. 28). A full, thorough review of the record has been completed and it is determined that it contains sufficient facts upon which the issues under consideration may be properly resolved. Therefore, no evidentiary hearing is required. Compare Means v. Secretary, Dep't of Corrections, 433 Fed.Appx. 852, 855 (11th Cir. July 12, 2011) ("[W]here `the record refutes [a petitioner's] factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing.'") (citation omitted)), cert. denied, 565 U.S. 1217, 132 S.Ct. 1580, 182 L.Ed.2d 198 (2012) with Allen v. Secretary, Florida Dep't of Corrections, 611 F.3d 740, 745 (11th Cir. 2010) ("A district court is not required to hold an evidentiary hearing if the claims `are merely conclusory allegations unsupported by specifics,' . . . or `if the record refutes the applicant's factual allegations or otherwise precludes habeas relief[.]'"), cert. denied, 563 U.S. 976, 131 S.Ct. 2898, 179 L.Ed.2d 1192 (2011). It is now herein
On June 21, 2013, Lucy was charged by indictment with offering a false instrument for recording against a public servant in violation of Alabama Code § 13A-9-12(c). (Doc. 20, Exhibit A, Part I, at 35 ("The GRAND JURY of said County charge, that, before the finding of this indictment
The trial record is undisputed that the written instrument(s) offered for recording in the Mobile County Probate Court against Mobile County Circuit Clerk Jo Jo Schwarzauer consisted of a Notice of First and Final Warning (see Doc. 20, Exhibit A, Part 2, T.T. 138 & State's Exhibit 1) and a Commercial Lien (see id. at 138-29 & State's Exhibit 2). Both of these instruments were recorded in the Mobile County Probate Court on December 19, 2012. (T.T. 139; see also id. at 141 (testimony that Exhibit 1 was recorded in Probate Book 6968, Page 1138, consisting of 5 pages and Exhibit 2 was recorded in Book 6968 beginning at page 1143, consisting of 6 pages, in the Mobile County Probate Court)). The face of Exhibit 1, the Notice of First and Final Warning, references that it is a Commercial Lien addressed to Jo Jo Schwarzauer from William N. Lucy regarding a breach of contract and breach of oath of office (id.), and reads as follows:
(T.T. 141-43). This First and Final Warning was dated and signed by Lucy on October 22, 2012 (id. at 143), as was the attached Statement of Truth Affidavit (id. at 144),
The primary documents comprising State's Exhibit 1 were executed by Lucy and sent to Schwarzauer on October 22, 2012, but were not recorded in the Mobile County Probate Court, along with the documents making up State's Exhibit 2, until December 19, 2012 (see id. at 139), almost sixty (60) days later.
It is clear based on a reading of all of the foregoing documents that Lucy believed on December 19, 2012, long before then, and to this day that though Schwarzauer entered default against all counter-defendants in CV-2011-000852 on December 7, 2011 (compare T.T. 164 with State's Exhibits 3-6), she was required by the provisions of Rule 55(b)(1) to enter a default judgment against those counter-defendants in the amount of $42,000,000.00 as set forth in his counterclaim (see, e.g., T.T. 147) and that her failure to enter this default judgment allowed him to assert default against the Circuit Clerk in that same amount and recover any of her assets "to collect the judgment due him in cross complaint CV11-0852 of forty-two million dollars[.]" (Id. at 148). This remained Lucy's position at trial (see, e.g., T.T. 206-07), despite the October 15, 2012 Order of Circuit Judge Robert H. Smith setting aside the entries of default and holding them for naught and dismissing Lucy's counterclaim against Steven J. Cox with prejudice by granting Cox's motion for summary judgment on the basis that the matter sought to be litigated by Lucy in his counterclaim filed in the ejectment action, CV 11-0852, that is, the piece of property at 413 Chin Street in Mobile, Alabama (and, as well, another piece of property at 2061 Tucker Street), had already been adjudicated in the Circuit Court of Mobile County, Alabama and the Alabama Court of Civil Appeals. (Compare, e.g., T.T. 166-71 with State's Exhibit 7).
So, despite the sum and substance of Judge Smith's October 15, 2012 Order, Lucy admitted during the hearing conducted in Probate Court on January 17, 2013, on the Petition to Nullify and Expunge a Recorded Instrument filed by Jo Jo Schwarzauer, that he recorded/filed the lien on December 19, 2012 with knowledge of Judge Smith's Order and despite there being no default judgment against the Circuit Clerk. (Compare T.T. 179-82 with State's Exhibit 8). On January 18, 2013, Probate Judge Don Davis entered an Order which, in relevant measure, granted Schwarzauer's Petition to Nullify and Expunge a Recorded Instrument, declared all such documents recorded by Lucy to be null and void, and instructed the Clerk of the Probate Court to redact, nullify and expunge and otherwise remove all those documents from the public records maintained by the Probate Court. (Compare id. with T.T. 154-55.) Judge Davis' Order otherwise reads, in relevant measure, as follows:
(Compare T.T. 151-54 with State's Exhibit 8, at 1-2.) Schwarzauer testified during Lucy's criminal trial that she had to file the Petition in Mobile County Probate Court because Lucy's recorded lien could have caused her serious problems in the event she tried to get a loan, refinance her house, buy another home, etc. (T.T. 184.) The Mobile County Circuit Court stated she had never before been attacked in this manner and she has been made to deal with this matter since 2012 simply because Lucy did not get a judgment he thought he should get and decided to take his frustration out by personally blaming her. (See id.)
Lucy, who represented himself during the trial of this cause, testified that he was a "small real estate investor[]" who had several properties taken from him "systematically by a couple of guys." (T.T. 204-05.) Petitioner then testified under oath that he filed suit against those unidentified individuals, then filed for a default judgment against them, which was granted and entered by the Clerk on December 7, 2011. (See id. at 205-06.) The remainder of Lucy's testimony, however, reflects that no such judgment was entered and, instead, only entries of default were entered. (Id. at 206-07.)
(Id. at 206-07 (emphasis supplied)). After Lucy began making comments about the trial court's quashing of subpoenas, being thrown in jail without bond, and filing suit in federal court for false imprisonment, the court cut off any further opportunity for Petitioner to give testimony. (See id. at 207-09.) In addition, while the Court allowed certain of Lucy's exhibits (1-6) to be marked for identification, they were not admitted into evidence because Lucy had lost his right to testify. (Id. at 211-12; see also id. at 209-10).
The trial court charged the jury on the elements of offering a false instrument for recording against a public servant in the following manner:
(T.T. at 242-43, 243-44 & 245-46).
On January 6, 2015, a jury of Lucy's peers found him guilty of the offense of offering a false instrument for recording against a public servant as charged in the indictment under Alabama Code § 13A-9-12(c). (T.T. 263; see also id. at 264-65 (polling of the individual jurors)). On January 26, 2015, Lucy was sentenced to a 30-year term of imprisonment under Alabama's Habitual Felony Offender Statute. (T.T. 317.) Thereafter, Lucy entered oral notice of appeal. (Id.).
On appeal, Lucy raised two issues, namely, that the trial court committed reversible error when it afforded him the right to represent himself and when it admitted into evidence his three prior felony convictions. (See Doc. 20, Exhibit B, at 4-5 (Lucy's appellate brief)). The Alabama Court of Criminal Appeals rejected Lucy's two appellate claims and affirmed his conviction and sentence in a 10-page unpublished memorandum opinion. (Doc. 20, Exhibit D) Lucy's application for rehearing (Doc. 20, Exhibit E) was overruled on March 11, 2016 (Doc. 20, Exhibit F). And though Lucy did file a petition for writ of certiorari (Doc. 20, Exhibit G), the Alabama Supreme Court, on April 14, 2016, instructed Lucy to show cause why the petition should be considered timely filed (Doc. 20, Exhibit H) and then, by subsequent order entered on April 29, 2016, Alabama's High Court struck the petition for writ of certiorari for failure to comply with Ala.R.App.P. 39(c)(2) (Doc. 20, Exhibit H-1).
Lucy filed a Rule 32 petition in the Circuit Court of Mobile County, Alabama collaterally attacking his conviction and sentence on October 26, 2016. (See Doc. 20, Exhibit J, March 21, 2017 ORDER, at 2.) In his Rule 32 petition, Lucy raised numerous claims but among them the same claims he raises in the instant habeas corpus petition. (Compare Doc. 20, Exhibit J, PETITION FOR RELIEF FROM CONVICTION OR SENTENCE, at 9, 10 & 14 ("The 6th Amendment to the United States Constitution states `in all criminal prosecutions the accused shall enjoy the right to have a compulsory process for obtaining witnesses in his favor' [and] Petitioner was denied this right as the trial judge quashed the subpoenas of all the witnesses subpoenaed by Petitioner to testify on his behalf. . . . The 14th Amendment to the United States Constitution states `no State shall deny any person within its jurisdiction the equal protection of [the] laws' [and] Petitioner was denied this right as the trial judge (Judge Joseph Johnston) was the defendant in a civil action brought by this Petitioner in the United States District Court that was pending during the time Petitioner was on trial in the Mobile County Circuit Court (Jan. 6, 2015) and also reviewed on the same day again by the U.S. District Court as the day trial Judge (Judge Johnston) sentenced Petitioner to prison (Jan. 26, 2015). `Clear Conflict of Interest'. [] The 14th Amendment to the United States Constitution states `no state shall deprive any person of life, liberty or property without due process of law' [and] Petitioner was denied this right, as the trial judge ordered all evidence submitted by Petitioner to prove his innocence labeled as `exhibits' and withheld from [the] jury during their deliberation[s]
Lucy appealed and at various portions in his appellate brief, Petitioner asserted the foregoing claims, three of those claims being best encapsulated by his argument that he was denied due process and a fundamentally fair trial on account of the trial judge's conflict of interest, as well as the trial judge's failure to allow him to call witnesses or present evidence on his behalf. (See Doc. 20, Exhibit K, at 20; see also id. at 13 & 15-16.) The Alabama Court of Criminal Appeals affirmed the trial court's summary dismissal of the Rule 32 petition by unpublished memorandum decision entered on October 6, 2017. (Doc. 20, Exhibit M).
(Id. at 2, 2-3, 3-4 & 5 (internal citations omitted)). Lucy's petition for rehearing en banc or, in the alternative, motion to show cause (Doc. 20, Exhibit N)
As previously indicated, Lucy originally filed his petition seeking habeas corpus relief in the Northern District of Alabama (see Doc. 7) but after that Court transferred his action to this Court and Petitioner was instructed to file his complaint on this Court's form § 2254 petition, Lucy filed his § 2254 habeas corpus petition in this Court on May 30, 2018 (Doc. 12, at 12). Therein, Petitioner raises the following issues which he claims entitle him to federal habeas corpus relief: (1) the trial judge had a conflict of interest and should have recused himself since he was a defendant in a civil action pending in federal court; (2) he was never arraigned on the underlying charge of offering a false instrument for recording against a public servant; (3) he was denied the right to call witnesses on his behalf; and (4) the trial court did not allow him to submit evidence on his behalf. (Id. at 6-8).
Because the respondent argued in her answer that Lucy failed to exhaust his jury claims in state court and, as a consequence, this Court is prohibited by the procedural default doctrine from considering the merits of those claims (see Doc. 20), the undersigned explained the procedural default defense to Lucy by order dated August 29, 2018, and extended to him the opportunity to establish cause and prejudice for any procedural defaults or extraordinary circumstances implicating a fundamental miscarriage of justice (see Doc. 21). In addition, the undersigned also parenthetically extended to Petitioner the opportunity to explain to this Court why the Respondent's alternative "merits" response to grounds two through four of the petition was incorrect. (See id. at 5 n.2).
In response to the Order, Lucy filed a pleading on October 1, 2018, in which he contends that cause for the default of these issues was the Alabama Supreme Court's failure/refusal to acknowledge receipt of a document containing these issues, a stance he claims is "proven" by the petition for writ of mandamus filed in this Court, see Lucy v. State of Alabama, CV 16-0470-CG-N (Doc. 27, at 3 ("The Petition for Writ of Mandamus filed in the U.S. District Court and reviewed by Hon. Cassie (sic) Granade (see [] case CA 16-00470-CG-N) seeking an order to compel Alabama Supreme Court to answer issues submitted by this Petitioner[ which,] to date[,] the Alabama Supreme Court has failed or refused to give answers to issues raised and presented for adjudication.")). Petitioner also contends that he is actually innocent of the crime upon which his custody is based, such that this Court's failure to consider the merits of his claims will result in a fundamental miscarriage of justice. (See id. at 5-9).
In Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), the Supreme Court stated that it would "not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Id. at 729, 111 S.Ct. at 2553-2554. This rule applies whether the state law ground is procedural or substantive. Id. at 729, 111 S.Ct. at 2554. The doctrine applies to bar federal habeas review when a state court declines to address a petitioner's federal claims because the petitioner fails to meet a state procedural requirement. Id. at 729-730, 111 S.Ct. at 2554; see also Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (federal courts must honor legitimate state trial and appellate procedural rules when enforced by state courts and must decline to review on the merits claims that the state treats as barred absent a showing of cause for non-compliance with such rules and resulting prejudice); Alderman v. Zant, 22 F.3d 1541, 1549 (11th Cir.) ("Pursuant to the doctrine of procedural default, a state prisoner seeking federal habeas corpus relief, who fails to raise his federal constitution[al] claim in state court, or who attempts to raise it in a manner not permitted by state procedural rules is barred from pursuing the same claim in federal court absent a showing of cause for and actual prejudice from the default."), cert. denied sub nom. Alderman v. Thomas, 513 U.S. 1061, 115 S.Ct. 673, 130 L.Ed.2d 606 (1994). "In these cases, the state judgment rests on independent and adequate state procedural grounds." Coleman, 501 U.S. at 730, 111 S.Ct. at 2554 (citations omitted).
The application of the independent and adequate state ground doctrine in the habeas context is grounded in concerns of federalism and comity. Id.
Id. at 730-731, 111 S.Ct. at 2554.
An additional consideration comes to the fore when the independent and adequate state ground supporting a petitioner's custody is a state procedural default. Id. at 731, 111 S.Ct. at 2554. The Supreme Court has long held
Id. at 731, 732, 111 S.Ct. at 2554-2555, 2555.
In the habeas context, federal courts are to "presume that there is no independent and adequate state ground for a state court decision when the decision `fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion.'" Id. at 735, 111 S.Ct. at 2557 (quoting Michigan v. Long, 463 U.S. 1032, 1040-1041, 103 S.Ct. 3469, 3476-3477, 77 L.Ed.2d 1201 (1983)); see Harris v. Reed, 489 U.S. 255, 263, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1989) ("[A] procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case `clearly and expressly' states that its judgment rests on a state procedural bar."). In all other cases, the presumption is not applicable. See Coleman, 501 U.S. at 739, 111 S.Ct. at 2559. In Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), the Supreme Court held that the Harris v. Reed presumption is inapplicable to a claim that is never presented to the state courts. Id. at 299, 109 S.Ct. at 1069 ("The rule announced in Harris v. Reed assumes that a state court has had the opportunity to address a claim that is later raised in a federal habeas proceeding."). Moreover, the presumption "looks through" unexplained orders to the last reasoned decision. Ylst v. Nunnemaker, 501 U.S. 797, 804, 111 S.Ct. 2590, 2595, 115 L.Ed.2d 706 (1991).
501 U.S. at 803, 111 S.Ct. at 2594. Also, the presumption may not be applied in cases in which the state court opinion did not, at a minimum, discuss the federal grounds at issue. Tower v. Phillips, 7 F.3d 206, 211 (11th Cir. 1993) ("Coleman and Ylst lead us to conclude that we may not assume that had the state court issued an opinion, it would have ignored its own procedural rules and reached the merits of this case. In fact, the most reasonable assumption is that had the state court ruled, it would have enforced the procedural bar."). Finally, "where a state court has ruled in the alternative, addressing both the independent state procedural ground and the merits of the federal claim, the federal court should apply the state procedural bar and decline to reach the merits of the claim." Alderman v. Zant, supra, 22 F.3d at 1549.
When a petitioner has procedurally defaulted a claim, a federal court is barred from reaching the merits of that claim unless the petitioner "can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claim[] will result in a fundamental miscarriage of justice." Coleman, supra, 501 U.S. at 750, 111 S.Ct. at 2565. The cause and prejudice standard applies "uniformly to all independent and adequate state procedural defaults." Id. at 750-751, 111 S.Ct. at 2565.
McCleskey v. Zant, 499 U.S. 467, 493-494, 111 S.Ct. 1454, 1470, 113 L.Ed.2d 517 (1991) (internal quotation marks and citations omitted).
In her answer, Respondent asserts that Petitioner's four claims raised in his habeas corpus petition are procedurally defaulted under O'Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999) due to Lucy's failure to "fairly present" this claim throughout "one complete round of the State's established appellate review process[,]" id. at 845, 119 S.Ct. at 1732 (see Doc. 20, at 2-3 & 11-12), and that court would now find the claim procedurally barred, compare McNair v. Campbell, 416 F.3d 1291, 1302 & 1305 (11th Cir. 2005), cert. denied sub nom. McNair v. Allen, 547 U.S. 1073, 128 S.Ct. 1828, 164 L.Ed.2d 522 (2006), with Kelley v. Secretary for Dep't of Corrections, 377 F.3d 1317, 1344 & 1351 (11th Cir. 2004), cert. denied, 545 U.S. 1149, 125 S.Ct. 2962, 162 L.Ed.2d 906 (2005). Here, Petitioner contends that this is not true and that he attempted to exhaust his state remedies by raising these issues in the Alabama Supreme Court but that Alabama's High Court refused to acknowledge receipt of his pleading(s) and to give answers to the issues raised and presented. (Doc. 27, at 3). Indeed, as "proof" that the Alabama Supreme Court refused to acknowledge receipt of or address the issues raised to it (and, specifically, the four issues he raises in his habeas corpus petition) Lucy points the undersigned to the writ of mandamus he filed in this Court in Lucy v. State of Alabama, CA 16-0470-CG-N, which he asserts sought "an order to compel [the] Alabama Supreme Court to answer issues submitted by this Petitioner[.]" (Id.) A quick online review of Lucy v. State of Alabama establishes that Lucy's cause argument is untenable. It is certainly true that Petitioner filed a Petition for Writ of Mandamus in the just-referenced case, see id., CA 16-0470-CG-N, Doc. 1; however, that petition was filed on September 6, 2016, id., more than one month
The fundamental miscarriage of justice/actual innocence exception does not apply in this case because Petitioner has not satisfied the standard set forth in Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). That standard requires Lucy to show that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Id. at 496, 106 S.Ct. at 2649-2650. To be credible, a claim of actual innocence "requires petitioner to support his allegations of constitutional error with new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial." Schlup v. Delo, 513 U.S. 298, 324, 115 S.Ct. 851, 865, 130 L.Ed.2d 808 (1995); see also id. at 327, 115 S.Ct. at 867 ("To establish the requisite probability, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence."). "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, 118 S.Ct. 1604, 1611, 140 L.Ed.2d 828 (1998) (citation omitted). Lucy simply has not come forward with any new reliable evidence that establishes his actual factual innocence of offering a false instrument for recording against a public servant. Indeed, Lucy merely attacks the "intent to harass" element of the charged offense
Pursuant to Rule 11(a) of the Rules Governing § 2254 Cases, the undersigned recommends that a certificate of appealability in this case be denied. 28 U.S.C. foll. § 2254, Rule 11(a) ("The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant."). The habeas corpus statute makes clear that an applicant is entitled to appeal a district court's denial of his habeas corpus petition only where a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). A certificate of appealability may issue only where "the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2243(c)(2). The instant habeas petition is being denied on procedural grounds without reaching the merits of purported constitutional claims, such that "a COA should issue [only] when the prisoner shows . . . default and had entered judgment against Lucy on his counterclaim. In other words, the viability of any counterclaim Lucy had against Steven Cox terminated/ended on October 15, 2012, when Judge Smith entered judgment against Lucy on his counterclaim, and given Lucy's knowledge of the contents of that Order, he would have understood the legal futility of advising Schwarzauer that she could "cure" her damage to him (in the amount of $42 million) by entering a $42 million that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000). Petitioner has defaulted all of his asserted claims without fairly presenting (and exhausting) them to the Alabama Supreme Court and that court would now find the claims procedurally barred, compare McNair, supra, 416 F.3d at 1302 & 1305 with Kelley, supra, 377 F.3d at 1344 & 1351; thus, a reasonable jurist could not conclude either that this Court is in error in dismissing the instant petition or that Lucy should be allowed to proceed further, Slack, supra, 529 U.S. at 484, 120 S.Ct. at 1604 ("Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further."). Accordingly, petitioner is not entitled to a certificate of appealability as to any of the claims he has raised in his habeas corpus petition.
Rule 11(a) further provides: "Before entering the final order, the court may direct the parties to submit arguments on whether a certificate should issue." If there is an objection to this recommendation by either party, that party may bring this argument to the attention of the district judge in the objections permitted to this report and recommendation. Brightwell v. Patterson, CA 11-0165-WS-C, Doc. 14 (Eleventh Circuit order denying petitioner's motions for a COA and to appeal IFP in a case in which this Court set out the foregoing procedure); see also Castrejon v. United States, 2011 WL 3241817, *20 (S.D. Ala. June 28, 2011) (providing for the same procedure), report and recommendation adopted, 2011 WL 3241580 (S.D. Ala. July 29, 2011); Griffin v. DeRosa, 2010 WL 3943702, at *4 (N.D. Fla. Sept. 20, 2010) (providing for same procedure), report and recommendation adopted sub nom. Griffin v. Butterworth, 2010 WL 3943699 (N.D.Fla. Oct. 5, 2010).
The Magistrate Judge is of the opinion that William N. Lucy is not entitled to federal habeas corpus relief, pursuant to 28 U.S.C. § 2254, because he has procedurally defaulted all his claims due to his failure to exhaust his state remedies and fairly present his constitutional claims to Alabama's Supreme Court. Therefore, his habeas corpus petition (Doc. 12) should be
A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to this recommendation or anything in it must, within fourteen (14) days of the date of service of this document, file specific written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); FED.R.CIV.P. 72(b); S.D. Ala. GenLR 72(c). The parties should note that under Eleventh Circuit Rule 3-1, "[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice." 11th Cir. R. 3-1. In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the Magistrate Judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the Magistrate Judge is not specific.
COME NOW PLAINTIFF WILLIAM N. LUCY DEFENDANT IN THE ABOVE STYLED ACTION AND FILE THIS CROSS COMPLAINT AND MOVES THIS HONORABLE COURT TO ADD DEFENDANTS ROBIN COX, GORDON HOUSE ATTORNEY AND THE LAW FIRM "HOUSE AND MORGAN" L.L.P ATTORNEYS AT LAW IN THE ABOVE STYLED CASE AND TO THIS CROSS COMPLAINT AND IN SUPPORT THEREOF SUBMIT THE FOLLOWING:
ON OR ABOUT JULY 2011; THE DEFENDANTS, GORDON HOUSE, HOUSE AND MORGAN L.L.P. (ATTORNEYS AT LAW), ROBIN COX AND STEVEN COX, CONSPIRED TO STEAL PLAINTIFF WILLIAM N. LUCY'S REAL PROPERTY COMMONLY KNOWN AS 2061 TUCKER ST. MOBILE, AL. 36617 AND 413 CHIN STREET MOBILE, AL. 36610; BY ANNOUNCING TO PLAINTIFF THAT A FORECLOSURE SALE HAD TAKEN PLACE AND ROBIN AND STEVEN COX WERE HIGH BIDDERS AND THAT PLAINTIFF MUST GIVE POSESSION OF PROPERTY AFORE MENTIONED TO ROBIN COX AND STEVEN COX.
WHEREFORE PLAINTIFF DEMANDS FIVE HUNDRED THOUSAND DOLLARS COMPENSATORY DAMAGES AND FIVE HUNDRED THOUSAND DOLLARS PURNATIVE DAMAGES. PLUS COST AND FEES
THE FRUAD OF REDUCING THE CONSPIRACY STATED IN COUNT I OF THIS COMPLAINT TO WRITING ON PAPER AND USING THE U.S. MAIL SERVICE TO CONVEY THIS FRUADUALENT ACT TO PLAINTIFF INFORMING HIM THAT A FORECLOSURE SALE HAD TAKEN PLACE ON JULY 5, 2011; AND ROBIN COX AND STEVEN COX WERE THE HIGH BIDDERS AND THAT PLAINTIFF MUST TURN OVER THESE PROPERTIES IMEDIATELY TO ROBIN AND STEVEN COX. THESE DEFENDANTS NOTIFIED PLAINTIFF OF THIS FORECLOSURE SALE; "THAT WAS ILLEGAL AT BEST" BECAUSE PLAINTIFF WAS UNDER BANKRUPTCY PROTECTION MAKING A FORECLOSURE SALE ILLEGAL; BUT THESE DEFENDANTS CONVEYED THIS TO PLAINTIFF TO FORCE HIM TO TURN OVER HIS PROPERTY AND THAT HE SHOULD BELIEVE THE CERTIFIED LETTER TO PLAINTIFF ANNOUNCING THAT PLAINTIFF HAD LOST HIS PROPERTY IN A IMAGINARY OR AT BEST
WHEREFORE THESE DEFENDANTS COMMITED CRIMES AGAINST THE U.S. POSTAL SERVICE "MAIL FRUAD", PLAINTIFF AND THE MOBILE COUNTY CIRCUIT COURT AND THE U.S. BANKRUPTCY COURT SYSTEM. PLAINTIFF DEMANDS TWENTY MILLION DOLLARS COMPENSATORY DAMAGES AND TWENTY MILLION DOLLARS PURNITIVE DAMAGES AND THE DEFENDANTS COMPLAINT (CV-11-852) DISMISSED WITH PREDJUDICE, PLUS COST AND FEES ALSO SANCTIONS AS THIS COURT SEE FIT, PLACED AGAINST GORDON HOUSE ATTORNEY AND HOUSE AND MORGAN L.L.P. ATTORNEYS AT LAW; FOR VIOLATION OF LAWYER DISCIPLINE STANDARDS 4.6
THE DEFENDANTS STEVEN COX AND ROBIN COX BREECHED ORAL CONTRACT WITH PLAINTIFF, TO FIX ROOF LEAKS, GET A/C HEATER TO WORK AND UP-GRADE FUSE BOX SO AS PLAINTIFF CAN COMPLETE RENOVATIONS AND MAKE PROPERTY SUITABLE FOR REFINANCING; WHICH STILL TO DATE; HAVE NOT BEEN DONE, ALTHOUGH THERE HAVE MANY PROMISES MADE BY DEFENDANTS.
WHEREFORE PLAINTIFF DEMANDS TWO HUNDRED FIFTY THOUSAND DOLLARS COMPENSATORY DAMAGES AND TWO HUNDRED FIFTY THOUSAND DOLLARS PURNITIVE DAMAGES. PAIN AND SUFFERING
THE DEFENDANT ROBIN COX IS A LICENSED REAL ESTATE AGENT IN THE STATE OF ALABAMA AND AS SUCH
WHEREFORE PLAINTIFF DEMANDS TWO HUNDRED FIFTY THOUSAND DOLLARS COMPENSATORY DAMAGES AND TWO HUNDRED FIFTY THOUSAND DOLLARS PURNITIVE DAMAGES PLUS COSTS AND FEES.
DONE THIS
PLAINTIFF DEMANDS TRIAL BY JURY
SERVE DEFENDANTS AS FOLLOW:
Comes now STEVEN COX, et al., Respondents in the above styled cause, and file
their answer to the Petition for Preliminary Injunction as follows:
1. Respondents deny each and every material allegation of the Petition and demand strict legal proof thereof.
2. The foreclosures on properties known as 2061 Tucker Street, Mobile, Alabama 36617 and 413 Chin Street, Mobile, Alabama 36617, which are set for February 1, 2011, are not in any manner connected with the property alleged in the Petition as 654 Stanton Road, Mobile, Alabama 36617.
3. Respondents attach copies of the vendor's lien deeds pertaining to 2061 Tucker Street and 413 Chin Street as Exhibits A and B and incorporate them as a part of this Answer as though fully set out herein.
I do hereby certify that the foregoing pleading has been served upon WILLIAM N. LUCY, at 765 Donald Street, Mobile, Alabama 36617, and JIM. H. FERNANDEZ, ESQUIRE, at 28 N. Florida Street, Mobile, Alabama 36607, by depositing a copy of same in the United States mail, postage prepaid and properly addressed on this 21
THIS INDENTURE, made and entered into between STEVEN J. COX and ROBIN K. COX, husband and wife, hereinafter referred to as GRANTORS, and WILLIAM N. LUCY, a married man, hereinafter referred to as GRANTEE;
That for and in the consideration of the sum of Forty Three Thousand and no/100's ($43,000.00), One Thousand Dollars and no/100's ($1,000,00) paid cash in hand, plus interest at the rate of nine (9%) percent per annum, to be paid according to the terms of the promissory note hereinafter substantially described, the GRANTORS do hereby GRANT, BARGAIN, SELL and CONVEY unto the GRANTEE, during the period or term of his life, and upon his death, then to his heirs and assigns, in fee simple, the following described real property in the County of Mobile, State of Alabama, to-wit:
Together with all and singular the tights, members, privileges and appurtenances thereunto belonging, or in any wise appertaining; TO HAVE AND TO HOLD the same unto the GRANTEE, during the period or term of his life, and upon his death, then to his hens and assigns, in fee simple, forever.
And, except as to taxes hereafter falling due, the said GRANTOR, for his heirs, executors and administrators, hereby covenant with the GRANTEE, his heirs and assigns, that they are seized of an indefeasible estate in fee simple in said property, that said property is free from all encumbrances not otherwise described herein and that they do hereby WARRANT AND WILL FOREVER DEFEND the title to said property unto the GRANTEES, the survivor of them and his or her heirs and assigns, against the lawful claims of all persons.
The unpaid balance of said purchase money, to-wit: the sum of FORTY TWO THOUSAND AND NO/100'S DOLLARS, plus interest at the rate of NINE (9%) percent per annum and to secure the payment of which a hen upon the property above described is hereby reserved, is evidenced by the promissory note hereinafter described, and of an even date herewith, made by the GRANTEE and payable to said GRANTORS at 10695 SKI CHASTE LANE, AXIS, ALABAMA, 36505, or other such reasonable place as the GRANTORS shall designate, viz:
Payable in THIRTY-FIVE (35) monthly installments, in the amount of THREE HUNDRED THIRTY SEVEN AND 94/100 ($337.94) per month, to begin on the 15
1. To pay said note and the installments of principal and interest thereon when the respectfully fall due on the 15
2. To keep any buildings or other improvements now or which may hereafter be erected upon said property in good repair and insured against fire, lighting, windstorms, tornadoes and cyclones, by policies issued by good and solvent insurance companies selected by the GRANTORS, which policies shall be deposited with the GRANTORS AND SHALL Provide that the loss, if any, shall be payable to the GRANTORS as the GRANTOR'S interest may appear, such policies to be in amounts, not exceeding the insurable value of said buildings or other improvements, as may be required by the GRANTORS.
3. That the GRANTEE shall assume all responsibility and liability for any injuries or damages to persons or property occurring or which might be alleged to occur in or around said premises, fully absolving and indemnifying GRANTORS from any such liability. GRANTEE'S shall maintain adequate liability insurance for that purpose.
4. To pay before the same become delinquent all taxes, assessments, liens, or other charges and encumbrances which may be or become effective against said property, or any portion thereof, together with all penalties, costs and other expenses incurred, or which may accrue, in connection therewith.
5. That if the GRANTORS, upon the happening of any default hereunder, shall foreclose this lien either by sale under the power herein contained or bay court proceedings or shall otherwise resort to litigation for the recovery of the sums, the GRANTEES will pay all reasonable costs of bringing down from date of this deed to date of foreclosure sale hereunder abstract of title to property hereinabove described, and said costs, expenses and attorney's fees, and any other sum or sums due the GRANTORS by virtue of any of the special hens herein declared, may be included in any judgment or decree rendered in connection with said Litigation.
6. That if the GRANTEES should fail to perform any of the duties and obligations herein specified to be performed or done by the GRANTEES, the GRANTORS may perform the same, but shall not be under any duty so to do, and for any sum expended by the GRANTORS shall have an additional lien, secured by these presents, on said property. The GRANTEES agree to pay the GRANTORS any sum or sums so expended by the GRANTORS, with the interest thereon, within ten (10) days after the mailing of written notice from the GRANTORS to the GRANTEES at the GRANTEES'S place of residence last known to the GRANTORS of the expenditure of said sum or sums together with demand fro payment thereof.
7. That upon the happening of a default in the payment of the said principal note, or of any installment of principal and interest hereon or upon any default in the performance of any obligations herein imposed on the GRANTEES, the GRANTORS shall have the right to sell said property for cash, at public outcry in front of the Government Street entrance of the Courthouse in the City of Mobile, Alabama, to the highest bidder, after giving thirty (30) days notice of the time, place, and terms of the sale by an advertisement published once a week for three (3) successive weeks in a newspaper published in Mobile, Alabama, to make property conveyance to the purchaser; and the proceeds of said sale to apply, first, to the payment of the costs of said sale, including a reasonable attorney's fee; second, to the payment of the amount of said principal note, whether due or not, with the unpaid interest thereon to the date of sale, and any amount that may be due the GRANTORS by virtue of any of the special liens herein declared; third, to the payment of all other sums, with interest (specifically including but not limited to such sums as may be applicable to taxes, assessments, insurance premiums and liens), which should be paid by the GRANTEES hereunder, and which may be the unpaid, whether the same shall have been paid by the GRANTORS at that time or not, as hereinabove provided; and lastly, the balance, if any, to be paid over to the said GRANTEES.
8. That at any sale under the powers herein the GRANTORS may bid for and purchase said property like a stranger hereto, and in the event the GRANTORS should become the purchaser at such sale, either the auctioneer conducting the sale or the GRANTORS may execute a deed to the GRANTORS in the name of the GRANTEES.
9. If all or any part of the property or an interest therein is sold or transferred by GRANTEES without GRANTORS prior written consent, excluding (a) the creation of a lien or encumbrance subordinate to the lien reserved herein, (b) the creation of a purchase money security for household appliances, (c) a transfer by devise, descent or by operation by law upon the death of a joint tenant, GRANTOR may, at GRANTORS' option, declare all sums secured by this mortgage to be immediately due and payable. If GRANTORS exercises such option to accelerate, GRANTORS shall mail GRANTEES notice of acceleration to GRANTEES at the proper address or at such other address as GRANTEES may designate by notice in writing to GRANTORS. Such notice shall provide a period of not less that thirty (30) days from the date of the notice within which GRANTEES may pay the sums declared due. If GRANTEES fail to pay suck sums prior to the expiration of such period, GRANTORS may, without further notice or demand on GRANTEES, invoke any remedies permitted by Paragraph 7 hereof or otherwise hereunder.
10. That the word GRANTORS, wherein used, is intended to include also the heirs and assigns of the GRANTORS.
11. This lien and the note secured thereby are to be construed according to the Laws of the State of Alabama.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and seals on this
I the undersigned a Notary Public, in and for said State and County, do hereby certify that STEVEN J. COX and ROBIN K. COX, whose names are signed to the foregoing conveyance, and who are known to me, acknowledged before me on this day, that being informed of the contents of said instrument, they executed the same voluntarily of the day the same bears date.
GIVEN, under my hand and seal this day of
I the undersigned a Notary Public, in and for said State and County, do hereby certify that WILIAM N. LUCY, whose name is signed to the foregoing conveyance, and who are known to me, acknowledged before me on this day, that being informed of the contents of said instrument, they executed the same voluntarily on the day the same bears date.
GIVEN, under my hand and seal this
THIS INDENTURE, made and entered into between STEVEN J. COX and ROBIN K. COX, husband and wife, hereinafter referred to as GRANTORS, and WILLIAM N. LUCY, a married man, hereinafter referred to as GRANTEE;
That for and in the consideration of the sum of THIRTY Thousand and no 1/100's ($30,000.00), plus interest at the rate of eight (8%) percent per annum, to be paid according to the terms of the promissory note hereinafter substantially described, the GRANTORS do hereby GRANT, BARGAIN, SELL and CONVEY unto the GRANTEE, during the period or term of his life, and upon his death, then to his heirs and assigns, in fee simple, the following described real property in the County of Mobile, State of Alabama, to-wit:
Together with all and singular the rights, members, privileges and appurtenances thereunto belonging, or in any wise appertaining; TO HAVE AND TO HOLD the same unto the GRANTEE, during the period or term of his life, and upon his death, then to his heirs and assigns, in fee simple, forever.
And, except as to taxes hereafter falling due, the said GRANTORS, for their heirs, executors and administrators, hereby covenant with the GRANTEE, his heirs and assigns, that they are seized of an indefeasible estate in fee simple in said property, that said property is free from all encumbrances not otherwise described herein and that they do hereby WARRANT AND WILL FOREVER DEFEND the title to said property unto the GRANTEES, the survivor of them and his or her heirs and assigns, against the lawful claims of all persons.
The unpaid balance of said purchase money, to-wit: the sum of THIRTY THOUSAND AND NO/100'S DOLLARS, plus interest at the rate of EIGHT (8%) percent per annum and to secure the payment of which a lien upon the property above described is hereby reserved, is evidenced by the promissory note hereinafter described, and of an even date herewith, made by the GRANTEE and payable to said GRANTORS at 10695 SKI CHASTE LANE, AXIS, ALABAMA, 36505, or other such reasonable place as the GRANTORS shall designate, viz:
Payable in THIRTY-FIVE (35) monthly installments, in the amount of TWO HUNDRED TWENTY AND 13/100 ($220.13) per month, to begin on the 15
1. To pay said note and the installments of principal and interest thereon when the respectfully fall due on the 15
2. To keep any buildings or other improvements now or which may hereafter be erected upon said property in good repair and insured against fire, lighting, windstorms, tornadoes and cyclones, by policies issued by good and solvent insurance companies selected by the GRANTORS, which policies shall be deposited with the GRANTORS AND SHALL Provide that the loss, if any, shall be payable to the GRANTORS as the GRANTOR'S interest may appear, such policies to be in amounts, not exceeding the insurable value of said buildings or other improvements, as may be required by the GRANTORS.
3. That the GRANTEE shall assume all responsibility and liability for any injuries or damages to persons or property occurring or which might be alleged to occur in or around said premises, fully absolving and indemnifying GRANTORS from any such liability. GRANTEE'S shall maintain adequate liability insurance for that purpose.
4. To pay before the same become delinquent all taxes, assessments, liens, or other charges and encumbrances which may be or become effective against said property, or any portion thereof, together with all penalties, costs and other expenses incurred, or which may accrue, in connection therewith.
5. That lithe GRANTORS, upon the happening of any default hereunder, shall foreclose this lien either by sale under the power herein contained or bay court proceedings or shall otherwise resort to litigation for the recovery of the sums, the GRANTEES will pay all reasonable costs of bringing down from date of this deed to date of foreclosure sale hereunder abstract of title to property hereinabove described, and said costs, expenses and attorney's fees, and any other sum or sums due the GRANTORS by virtue of any of the special liens herein declared, may be included in any judgment or decree rendered in connection with said litigation.
6. That if the GRANTEES should fail to perform any of the duties and obligations herein specified to be performed or done by the GRANTEES, the GRANTORS may perks lit the same, but shall not be under any duty so to do, and for any sum expended by the GRANTORS shall have an additional lien, secured by these presents, on said property. The GRANTEES agree to pay the GRANTORS any sum or sums so expended by the GRANTORS, with the interest thereon, within ten (10) days after the mailing of mitten notice from the GRANTORS to the GRANTEES at the GRANTEES'S place of residence last known to the GRANTORS of the expenditure of said sum or sums together with demand fro payment thereof.
7. That upon the happening of a default in the payment of the said principal note, or of any installment of principal and interest hereon or upon any default in the performance of any obligations herein imposed on the GRANTEES, the GRANTORS shall have the right to sell said property for cash, at public outcry in front of the Government Street entrance of the Courthouse in the City of Mobile, Alabama, to the highest bidder, after giving thirty (30) days notice of the time, place, and terms of the sale by an advertisement published once a week for three (3) successive weeks in a newspaper published in Mobile, Alabama, to make property conveyance to the purchaser; and the proceeds of said sale to apply, first, to the payment of the costs of said sale, including a reasonable attorney's fee; second, to the payment of the amount of said principal note, whether due or not, with the unpaid interest thereon to the date of sale, and any amount that may be due the GRANTORS by virtue of any of the special liens herein declared; third, to the payment of all other sums, with interest (specifically including but not limited to such stuns as may be applicable to taxes, assessments, insurance premiums and liens), which should be paid by the GRANTEES hereunder, and which may be the unpaid, whether the same shall have been paid by the GRANTORS at that time or not, as hereinabove provided; and lastly, the balance, if any, to be paid over to the said GRANTEES.
8. That at any sale under the powers herein the GRANTORS may bid for and purchase said property like a stranger hereto, and in the event the GRANTORS should become the purchaser at such sale, either the auctioneer conducting the sale or the GRANTORS may execute a deed to the GRANTORS in the name of the GRANTEES.
9. If all or any part of the property or an interest therein is sold or transferred by GRANTEES without GRANTORS prior written consent, excluding (a) the creation of a lien or encumbrance subordinate to the lien reserved herein, (b) the creation of a purchase money security for household appliances, (c) a transfer by devise, descent or by operation by law upon the death of a joint tenant, GRANTOR may, at GRANTORS' option, declare all sums secured by this mortgage to be immediately due and payable. If GRANTORS exercises such option to accelerate, GRANTORS shall mail GRANTEES notice of acceleration to GRANTEES at the proper address or at such other address as GRANTEES may designate by notice in writing to GRANTORS. Such notice shall provide a period of not less that thirty (30) days from the date of the notice within which GRANTEES may pay the sums declared due. If GRANTEES fail to pay suck sums prior to the expiration of such period, GRANTORS may, without further notice or demand on GRANTEES, invoke any remedies permitted by Paragraph 7 hereof or otherwise hereunder.
10. That the word GRANTORS, wherein used, is intended to include also the heirs and assigns of the GRANTORS.
11. This lien and the note secured thereby are to be construed according to the Laws of the State of Alabama.
IN WITNESS, WHEREOF, the parties hereto have hereunto set their hands and seals on this
I the undersigned a Notary Public, in and for said State and County, do hereby certify that STEVEN J. COX and ROBIN K. COX, whose names are signed to the foregoing conveyance, and who are known to me, acknowledged before me on this day, that being informed of the contents of said instrument, they executed the same voluntarily of the day the same bears date.
GIVEN, under my hand and seal
I the undersigned a Notary Public, in and for said State and County, do hereby certify that WILLIAM N. LUCY, whose name is signed to the foregoing conveyance, and who are known to me, acknowledged before me on this day, that being informed of the contents of said instrument, they executed the same voluntarily on the day the same bears date.
GIVEN, under my hand and seal this
THIS COMPLAINT STEMS FROM THE FAILURE OF ROBERTS BROTHERS REALTY, ROBIN COX AND STEVEN COX TO DISCLOSE THE MATERIAL FACTS THAT REAL PROPERTY(S) COMMONLY KNOWN AS 2061 TUCKER ST. MOBILE, AL. 36617 HAVE FOUNDATION PROBLEMS, PROPERTY COMMONLY KNOWN AS 654 STANTON RD. MOBILE AL. 36617 HAVE WATER LEAK UNDER THE SLAB AND THE DEFENDANT STEVEN COX'S, PETITION TO THE MOBILE COUNTY TAX ACCESSORS OFFICE TO REDUCE THE VALUE OF REAL PROPERTY COMMONLY KNOWN AS 2061 TUCKER ST., THUS PREVENTING PLAINTIFF FROM BEING ABLE TO REFINANCE OR GET LOAN TO MAKE REPAIRS.
COUNT I —
PLAINTIFF ENTERED INTO CONTRACT (S) TO PURCHASE REAL PROPERTIES COMMONLY KNOWN AS 2061 TUCKER ST. MOBILE, AL 36617 AND 654 STANTON RD. MOBILE, AL. 36617 AND THE DEFENDANTS FAILED TO DISCLOSE THE MATERIAL FACTS TO PLAINTIFF THAT REAL PROPERTY COMMONLY KNOWN AS 2061 TUCKER ST. MOBILE, AL. 36617 HAVE A BAD FOUNDATION AND REAL PROPERTY COMMONLY KNOWN AS 654 STANTON RD. MOBILE AL.36617 HAVE A WATER LEAK UNDER THE SLAB. THE DEFENDANTS ROBERTS BROTHERS REALTY, ROBIN COX (REAL ESTATE AGENT) AND STEVEN COX KNOWN OR SHOULD HAVE KNOWN THAT THESE PROBLEMS EXISTS AND HAD A RESPONSIBILITY TO DISCLOSE THESE MATERIAL FACTS TO. PLAINTIFF AS PER ALABAMA LAW.
WHEREFORE PLAINTIFF SEEKS DAMAGES OF TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00) AND RETURN OF ALL MONIES PAID TO THE DEFENDANTS ROBIN COX AND STEVEN COX THUS FAR ON THESE PROPERTIES THUS FAR AND COSTS.
COUNT II —
1) ON OR ABOUT THE 25
2) AT THAT TIME DEFENDANTS REPRESENTED TO PLAINTIFF THAT PROPERTY COMMONLY KNOWN AS 2061 TUCKER ST. MOBILE, AL. 36617 WAS VALUED IN EXCESS OF FIFTY THOUSAND DOLLARS ($50,000.00).
3) THE REPRESENTATIONS MADE BY THE DEFENDANTS WERE FALSE AND THE DEFENDANTS KNEW THAT WERE FALSE BECAUSE THE DEFENDANT STEVEN COX HAD PETITION THE MOBILE COUNTY TAX ACCESSORS OFFICE TO LOWER THE VALUE THIS PROPERTY AND WERE GRANTED APPRAISEL REDUCTION.
4) THE PLAINTIFF BELIEVED THE REPRESENTATIONS AND IN RELIANCE UPON THEM PURCHASED THE PROPERTY.
WHEREFORE PLAINTIFF DEMANDS JUDGMENT AGAINST THE DEFENDANTS IN THE SUM OF TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00) AND COSTS.
PLAINTIFF DEMANDS TRIAL BY JURY.
DONE THIS
THIS COMPLAINT STEMS OUT OF THE COMSPIRACY BY THESE DEFENDANTS TO DEFRUAD PLAINTIFF OUT OF HIS REAL PROPERTY COMMONLY KNOWN AS 654 STANTON RD. MOBILE, AL 36617.
COUNT I —
THE DEFENDANTS CONSPIRED TO DEFRUAD PLAINTIFF OUT HIS REAL PROPERTY COMMONLY KNOWN AS 654 STANTON RD. MOBILE, AL. 36617 BY CONVINCING PLAINTIFF TO SIGN OVER TITLE TO HIS REAL PROPERTY TO STEVEN COX AT CASE TITLE COMPANY AND THEN HE (PLAINTIFF) WOULD RECEIVE THE FUNDS FROM THE SALE FROM MR COX AFTER PLAINTIFF SIGNED OVER HIS PROPERTY TO MR. COX AND DOCUMENT OF THE SALE NOTORIZED AND SIGNED AT CASE TITLE COMPANY; THE DEFENDANT STEVEN COX REFUSED TO PAY PLAINTIFF FUNDS DUE HIM FROM THE SALE AND HAS CONTINUED TO REFUSE TO PAY PLAINTIFF, AFTER ALL ATTEMPTS TO COLLECT THE FUNDS HAS FAILED PLAINTIFF HAS NO OTHER CHOICH BUT TO FILE THIS LAW SUIT.
WHEREFORE PLAINTIFF DEMAND DAMAGES IN THE AMOUNT OF TWENTY FIVE THOUSAND DOLLARS ($25,000.00)
COUNT II —
PLAINTIFF SIGNED OVER THE TITLE TO HIS REAL PROPERTY TO THE DEFENDANT STEVEN COX ON HIS WORD THAT ONCE PLAINTIFF SIGNED THE SALES AGREEMENT HE WOULD RECEIVED THE FUNDS FROM THE SALE. PLAINTIFF BELIEVED THE DEFENDANTS AND SIGNED THE SALES AGREEMENT BECAUSE THE DEFENDANTS TOLD PLAINTIFF EVERYTHING WERE LEGAL AND BINDING BECAUSE THIS WERE SIGNED AND NOTORIZED AT A TITLE COMPANY.
PLAINTIFF BELIEVED THEM AND SIGNED OVER HIS PROPERTY. ONCE SIGNED THE DEFENDANT STEVEN COX THEN REFUSED TO PAY PLAINTIFF FUNDS FROM THE SALE.
WHEREFORE PLAINTIFF DEMANDS THE RETURN OF THE TITLE TO HIS REAL PROPERTY COMMONLY KNOWN AS 654 STANTON RD. MOBILE, AL. 36617, TURN OVER TO PLAINTIFF ALL RENTS COLLECTED THUS FAR BY DEFENDANT STEVEN COX FROM `TENANTS AT 654 STANTON RD. MOBILE AL. 36617 AND DAMAGES OF $100,000.00 DOLLARS.
PLAINTIFF DE ANDS TRAIL BY JURY.
DONE THIS
Rogers v. Buss, 2011 WL 2448351, *1-2 (N.D. Fla. May 4, 2011), report and recommendation adopted, 2011 WL 2448348 (N.D. Fla. June 20, 2011).
Here, Lucy's petition does not discuss, much less establish, the prerequisites for obtaining injunctive relief in this case. More importantly, after this Court instructed Lucy to file his habeas corpus petition anew on this Court's form (see Doc. 9) the petition Lucy filed against Warden Mary Cooks (Doc. 12) contains no accompanying petition for a preliminary injunction (see id.). And, finally, since this discussion comes within the context of a report and recommendation addressing the claims Lucy raises in the complaint form provided by this Court (see id.) and those claims are decided adversely to Lucy, there is no substantial likelihood that Petitioner will prevail on the merits. Accordingly, the recommendation is made that Petitioner's conclusory petition for preliminary injunction be denied.
(Id. at 143-44.)
Prior to jury selection on January 5, 2015, the trial judge, Joseph S. Johnston, took up a number of motions filed by Lucy (see Doc. 20, Exhibit A, Part 2, T.T. 11-46). The first motion discussed was Lucy's January 2, 2015 motion seeking the recusal of Johnston on the basis that Lucy had named Johnston as a defendant in a civil case pending in this Court, the United States District Court for the Southern District of Alabama. (See id. at 11). The trial judge denied the motion to recuse on the basis that he was both unaware of the lawsuit and did not know (nor did he want to know) what it was about as he had not been served the complaint. (See id. at 11-13). "There are plenty of opinions from the Judicial Inquiry Commission that when a litigant files a complaint against a judge, when a judge already has a case pending and it appears that the litigation is designed to harass, intimidate, and/or get the judge to recuse himself, that the judge has no obligation to do that. I don't even know what your litigation is about and I don't want to know what it's about." (Id. at 12-13; see also id. at 13 ("I can give you an absolutely fair trial, Mr. Lucy.")).
Also addressed at some length was the Court's quashing of Lucy's requests for witness subpoenas both in the presence of the State (see id. at 29-32 & 39-45) and outside the presence of the State (see id. at 111-124). The trial court refused to set aside its quashing of the witness subpoenas to eight members of the news media in Mobile and three judicial officers due to Lucy's refusal to proffer the relevant evidence that the witnesses would offer if called to testify. (See id.).
(Id. at 1-3.)
Petitioner's attempt to assert new claims for the first time in his Rebuttal (Doc. 28, at 6-9), is not allowed by the applicable rules, Rule 2(c) of the Rules Governing Habeas Corpus Cases Under Section 2254 specifically providing that "[t]he petition
(Id. at 50-52, 52 & 53.) The foregoing evidence conclusively establishes that Lucy was arraigned not once, but twice, and each time was apprised of the charges against him. Indeed, Lucy admitted in open court before Judge Johnston that he should not have been arrested for failing to appear for arraignment before Judge Johnston in March of — because he had already been arraigned by Judge Youngpeter on the underlying charge. (See id.) Therefore, his claim that he was not arraigned has no merit, as specifically determined by the Alabama Court of Criminal Appeals (see Doc. 20, Exhibit M, at 4-5).
Lucy's claim that the trial judge had a conflict of interest due to Petitioner naming him as a defendant in a federal suit filed in this Court, see Lucy v. Johnston, CA 14-0185-CG-B, and, therefore, should have recused himself, has no merit for the simple fact that Petitioner's motion to proceed without prepayment of the (federal) filing fee was denied and his action dismissed by this Court (prior to service) without prejudice pursuant to 28 U.S.C. § 1915(g) on October 20, 2014, see Lucy v. Johnston, supra, at Docs. 9 & 10; see also Doc. 7, well before Lucy filed his January 2, 2015 motion for recusal in state court, a mere three days before his criminal trial was to begin (compare Doc. 20, Exhibit A, Part 1, at 106 with Doc. 20, Exhibit A, Part 2, T.T. 11-13). And while Lucy correctly observes that he continued to "litigate" his federal action after his state-court trial began, there were no "substantive" issues being litigated; instead, the sole issue being litigated was whether Lucy would be granted leave to appeal in forma pauperis, see Lucy v. Johnston, CA 14-0185-CG-B, Docs. 11-22. Unsurprisingly, Judge Johnston had no knowledge of Lucy's federal lawsuit until January 2, 2015 (as same had never been served) (see T.T. 11-13) and since that federal lawsuit never proceeded beyond the filing fee stage, the undersigned finds no merit to Lucy's conclusory suggestion that Johnston had a conflict of interest requiring recusal. Cf. United States v. Leitner, 2018 WL 4905952, *11 (N.D. Fla. July 11, 2018) ("Judges are not required to recuse themselves merely because they are named as defendants in a meritless lawsuit."), report and recommendation adopted, 2018 WL 4904943 (N.D. Fla. Oct. 9, 2018).
