United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
BERT W. MILLING, Jr., Magistrate Judge.
This is an action under 28 U.S.C. § 2254 by an Alabama inmate that was referred for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B), Local Rule 72.2(c)(4), and Rule 8 of the Rules Governing Section 2254 Cases. This action is now ready for consideration. The state record is adequate to determine Petitioner's claims; no federal evidentiary hearing is required. It is recommended that this habeas petition be dismissed as the claims are procedurally defaulted and that judgment be entered in favor of Respondent Dewayne Estes and against Petitioner Peter James Dunkerley. It is further recommended that any certificate of appealability filed by Petitioner be denied as he is not entitled to appeal in forma pauperis.
Petitioner was convicted of possession of child pornography in the Mobile County Circuit Court on September 25, 2007 for which he received a sentence of seven years in the state penitentiary (Doc. 1, p. 2; cf. Doc. 17, p. 2). On appeal, the Alabama Court of Criminal Appeals affirmed the conviction (Doc. 17, Exhibit 3); an application for rehearing was overruled (Doc. 17, Exhibit 4). On August 14, 2009, the Alabama Supreme Court denied Dunkerley's petition for certiorari; on that same date, the Alabama Court of Criminal Appeals entered a certificate of judgment (Doc. 17, Exhibits 5, 6). Dunkerley filed a petition of certiorari with the U.S. Supreme Court that was denied on June 28, 2010. Dunkerley v. Alabama, 130 S.Ct. 3511, 177 L.Ed.2d 1099 (2010).
Petitioner filed a Rule 32 petition on August 13, 2010 (Doc. 1, p. 4; cf. Doc. 17, Exhibit 9, p. 2). Following the denial of the petition by the lower court, the Alabama Court of Criminal Appeals affirmed the denial, finding the claims to be procedurally defaulted (Doc. 17, Exhibit 9); Dunkerley's application for rehearing was overruled (Doc. 17, Exhibit 10). A certificate of judgment was entered on October 24, 2012 (Doc. 17, Exhibit 11).
While his Rule 32 petition was pending in the State courts, Dunkerley filed a habeas petition in this Court. That petition was ultimately dismissed, without prejudice, as premature as he had not yet exhausted his remedies in the State courts. Dunkerley v. Strange, C.A. 11-0171-CB-M (S.D. Ala. October 31, 2011).
Petitioner filed a complaint with this Court on June 24, 2013, raising the following claims: (1) He was denied his First Amendment rights; (2) he was denied his Fourteenth Amendment rights; (3) he was denied equal protection of the law; and (4) his conviction violated the commerce clause of the constitution (Doc. 1).
Respondent answered the petition, arguing that it should be dismissed as it was not filed within the one-year statute of limitations period of the Anti-Terrorism and Effective Death Penalty Act of 1996 (hereinafter AEDPA ) which amended, in pertinent part, 28 U.S.C. § 2244. (Doc. 17, pp. 6-7). The Court determined that AEDPA does not bar this action on limitations grounds (Doc. 23).
Respondent also argued that Dunkerley has defaulted on the claims brought in this Court because he did not raise them in the State courts (Doc. 27, pp. 7-13). It is noted that a United States Supreme Court decision, Harris v. Reed, 489 U.S. 255 (1989), discussed procedural default and stated that "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." Harris, 489 U.S. at 263, citing Caldwell v. Mississippi, 472 U.S. 320, 327 (1985), quoting Michigan v. Long, 463 U.S. 1032, 1041 (1983). However, in Teague v. Lane, 489 U.S. 288 (1989), the U.S. Supreme Court stated that the rule of Harris is inapplicable where a habeas petitioner did not raise a particular claim in state courts so that they never had the opportunity to address the claim.
The evidence of record demonstrates the following.
Dunkerley's first claim raised in this petition is that his conviction denied him his First Amendment rights (Doc. 1, pp. 7, 13-14). Petitioner raised this claim in his Rule 32 petition in the State courts as evidenced by the Alabama Court of Criminal Appeals' finding that it was not a jurisdictional issue and was procedurally defaulted under Rules 32.2(a)(3) and 32.2(a)(5) of the Alabama Rules of Criminal Procedure because it was not raised at trial or on appeal (Doc. 17, Exhibit 9, pp. 2, 3-4). As the Alabama Court of Criminal Appeals was the last Court to rule on this claim and it "clearly and expressly" found it to be procedurally defaulted, this Court finds that Petitioner's first claim is procedurally defaulted under Harris.
The Court further notes that although the Alabama Court of Criminal Appeals denied Dunkerley's motion for rehearing of his Rule 32 petition, he did not seek review of the lower court decision by the Alabama Supreme Court in a petition for certiorari. Alabama law allowed Petitioner to seek certiorari in the Alabama Supreme Court for the review of the denial of rehearing by the Alabama Court of Criminal Appeals. Ala.R.App.P. 39(a); see also, e.g., Ex parte Powell, 674 So.2d 1258 (Ala. 1995) (Alabama Supreme Court granted certiorari to review Alabama Court of Criminal Appeals' determination that appellant's Rule 32 petition was untimely filed). The fourteen-day time period in which Petitioner could pursue this avenue of relief has passed. See Ala.R.App.P. 39(c). Because Petitioner did not pursue this claim, that his conviction violated his First Amendment rights, in a timely fashion before the Alabama Supreme Court, it is procedurally defaulted under O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999) ("[W]e conclude that state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process").
Dunkerley's second claim in this action is that he was denied his Fourteenth Amendment rights in that the State did not provide evidence sufficient to convict him; rather, the burden of proof was placed on him to prove that the images for which he was convicted did not depict children (Doc. 1, pp. 7, 14-16). This claim was raised in Petitioner's Rule 32 petition in the State Courts as demonstrated by the Alabama Court of Criminal Appeals' finding that it was not a jurisdictional issue and was barred from review under Rule 32.2(a)(2) because he had raised it in a motion for a new trial (Doc. 17, Exhibit 9, pp. 2, 3).
The Court finds that Dunkerley's second claim is procedurally defaulted. The Alabama Court of Criminal Appeals clearly stated, in the appeal of the denial of his Rule 32 petition, that it was precluded because he had raised the issue in a motion for a new trial; court records clearly show that Petitioner did not pursue the claim in the direct appeal of his conviction ( see Doc. 17, Exhibit 3). See Ala.R.Crim.P. 24.1(b). This claim is also barred under O'Sullivan as Petitioner did not seek review of the claim in the Alabama Supreme Court.
Petitioner next claims that he was denied equal protection of the law by being convicted under a State statute that would not violate federal law (Doc. 1, pp. 8, 16). The Alabama Court of Criminal Appeals, on review of the denial of his Rule 32 petition, held that this claim was not jurisdictional and was precluded under Rules 32.2(a)(3) and 32.2(a)(5) ...