United States District Court, N.D. Alabama, Northeastern Division
ROBERT B. PROPST, Senior District Judge.
Petitioner, Jeremy Travon Malone ("Malone"), has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). Malone challenges the validity of his 2009 conviction in the Circuit Court of Madison County, Alabama after a plea of guilty to trafficking in marijuana. ( Id. ). The State has responded to the petition (Doc. 4) and Malone has replied, (Doc. 6). For the reasons set forth herein, the petition is due to be denied in its entirety.
On June 27, 2007, the Grand Jury for the Northern District of Alabama returned an indictment charging Malone with conspiring to distribute and possess with the intent to distribute fifty or more grams of crack cocaine. (Doc. 4-3 at 27); see also USA v. Blackburn, et al., 5:07-cr-00250-RDP-JEO. A warrant was issued for Malone's arrest, and federal authorities contacted local law enforcement in Huntsville, Alabama to notify them of the arrest warrant. (Doc. 4-3 at 27). On July 3, 2007, agents identified as members of the Huntsville/Madison County Strategic Counterdrug Team arrested Malone in the parking lot of the apartment complex where he was residing. ( Id. ). Agents then searched Malone's vehicle. ( Id. ). According to a case information completed by an agent of the Strategic Counterdrug Team, a.32 caliber pistol was located under the front seat of the vehicle and a bag containing marijuana residue was located on the floor of the backseat of the vehicle. ( Id. ) Based on the discovery of the pistol and bag, a warrant was obtained for the search of Malone's residence. ( Id. at 27). Agents seized six one-pound bags of marijuana, plus another bag partially filled with marijuana, a loaded Ruger 9 mm pistol, and more than $1, 500.00 in cash from Malone's residence. ( Id. ).
On November 30, 2007, the Grand Jury for Madison County, Alabama returned an indictment charging Malone with trafficking in marijuana, theft of a motor vehicle, escape, carrying a pistol without a permit, and resisting arrest. ( Id. at 11); see also State of Alabama v. Malone, CC-2007-007168.00. On January 15, 2008, Malone was convicted in the United States District Court for the Northern District of Alabama of conspiring to distribute and possess with the intent to distribute fifty or more grams of cocaine base. (Doc. 4-4 at 3); see also USA v. Blackburn, et al., 5:07-cr-00250-RDP-JEO. He subsequently was sentenced to 120 months imprisonment in connection with his federal conviction. ( Id. ). The state charges against Malone were set for trial on January 26, 2009. (Doc. 4-4, p. 3). A motion to suppress evidence in the state case was set for hearing the same day. ( Id. at 4). Instead, on January 26, 2009, Malone pled guilty, pursuant to a plea agreement, to trafficking in marijuana in the Circuit Court of Madison County. (Doc. 1 at 1). He was sentenced to ten years imprisonment, with such sentence to run concurrent with the federal sentence he was already serving. ( Id. ); see also State of Alabama v. Malone, CC-2007-007168.00.
Collateral Review by State Courts
Malone did not directly appeal from the judgment of conviction in the Circuit Court of Madison County. (Doc. 1 at 1). On March 3, 2010, Malone filed a Rule 32 petition in that court by placing a copy of the same in the prison mail. (Doc. 4-3 at 7). Malone sought relief from his state conviction on the grounds the assistance rendered by his trial counsel was constitutionally defective. ( Id. at 8). Specifically, Malone alleged his trial counsel failed to litigate the motion to suppress. ( Id. ). According to Malone, the bag allegedly containing marijuana residue was found in the trunk of his car, the warrantless search of which violated the Fourth Amendment. ( Id. at 14-15). In the alternative, Malone argued even if the bag was located on the rear floorboard of his car, the search of his car without a warrant was unlawful under Arizona v. Gant, 129 U.S. 1710 (2009). ( Id. at 15-18). Finally, Malone contended the affidavit supporting the search warrant for his residence contained false statements-namely, that the aforementioned bag contained marijuana residue and that the basis for the federal arrest warrant was Malone's "trafficking cocaine and marijuana, " when the warrant did not mention marijuana. ( Id. at 19-20). Malone also claimed the affidavit omitted the location where the bag allegedly containing marijuana residue was found and the affiant's prior involvement in a federal investigation of Malone. ( Id. at 21-22). According to Malone, these false statements and omissions invalidated the affidavit under Franks v. Delaware, 438 U.S. 154, 164-65 (1978). Malone requested an evidentiary hearing. ( Id. at 22-23).
The State responded, claiming Malone was afforded the opportunity "to exhaustively consider and weigh the relative merits of accepting the plea versus proceeding to hearing [on the motion to suppress] and trial" and entered a plea of guilty knowingly, intelligently, and voluntarily. (Doc. 4-4 at 1). Attached to the State's response was an affidavit sworn to by Malone's trial attorney. ( Id. at 3-4). Malone replied to the State's response to his Rule 32 petition. (Doc. 4-5). In his reply, Malone noted his trial counsel advised him the motion to suppress lacked merit based on a recent Supreme Court case- Herring v. United States, 129 S.Ct. 695 (2009)-and the discovery of the federal arrest warrant. ( Id. at 3).
The Circuit Court of Madison County denied Malone's Rule 32 petition on the merits by an order dated August 26, 2010. (Doc. 4-6). In April of 2011, Malone appealed the denial of his Rule 32 petition to the Alabama Court of Criminal Appeals, identifying the issues for review as whether the circuit court erred in (1) denying his petition "in spite of a colorable claim of ineffective assistance of counsel" and (2) failing to hold an evidentiary hearing. (Doc. 4-10 at 6). As to the first issue, Malone alleged his trial attorney erroneously advised him the warrantless search of his vehicle was legal and the motion to suppress lacked merit based on discovery of the federal arrest warrant. ( Id. at 7).
On August 19, 2011, the Alabama Court of Criminal Appeals affirmed the decision of the circuit court. (Doc. 4-7). The appellate court noted the circuit court's finding that trial counsel represented Malone effectively was supported by trial counsel's affidavit and, thus, held the circuit court had not abused its discretion by denying Malone's Rule 32 petition. ( Id. at 6). The appellate court also held Malone's argument that the circuit court erred in failing to conduct an evidentiary hearing was without merit. ( Id. ). Malone did not file an application for rehearing or a petition for certiorari. (Doc. 1 at 3). Therefore, the Alabama Court of Criminal Appeals entered a Certificate of Judgment on September 7, 2011. (Doc. 4-8).
Federal Habeas Petition
On September 6, 2011, Malone executed the instant § 2254 petition, which was deemed filed on September 9, 2011. (Doc. 1 at 6). Malone asserts three grounds for federal habeas relief: (1) the Circuit Court of Madison County improperly denied his Rule 32 petition without an evidentiary hearing, relying instead on his trial counsel's affidavit, which "failed to specifically address [his] claim of erroneous advice, " (2) the state court failed to hold a full and fair hearing on his ineffective assistance claim by "accept[ing] [his trial] counsel's general statement as facts, " and (3) his trial counsel "advised [him] to plead guilty pursuant to the plea agreement after erroneously advising [him] that [his] motion to suppress lacked merit because a physical copy of the federal arrest warrant was discovered." ( Id. at 4-5).
On April 12, 2012, the State filed a response to Malone's § 2254 petition. (Doc. 4). The State claims the first two grounds for relief asserted by Malone are not cognizable under § 2254. ( Id. at 5-6). As to the third ground for relief alleged by Malone, the State claims Malone failed to exhaust his state court remedies because he did not present this claim to the Alabama Court of Criminal Appeals. ( Id. at 7). According to the State, the ineffective assistance claim presented in Malone's Rule 32 petition was based on his trial counsel's alleged failure to litigate the motion to suppress. And while his reply mentioned his trial counsel's alleged erroneous legal advice regarding the effect of discovery of the federal arrest warrant, such advice was not an independent basis for his ineffective assistance claim. ( Id. at 7-8). The State also contends Malone only mentioned his trial counsel's alleged erroneous legal advice regarding discovery of the federal arrest warrant on appeal arguing the Circuit Court of Madison County had erred in denying him an evidentiary hearing. ( Id. at 8). According to the State, neither the circuit nor the appellate court addressed or ruled on Malone's ineffective assistance claim based on his trial counsel's alleged erroneous legal advice regarding discovery of the federal arrest warrant. ( Id. at 8-9). In the alternative, the State argues even if such claim was fairly presented to the Alabama Court of Criminal Appeals, like Malone's other two alleged grounds for relief, it is procedurally defaulted because Malone failed to file an application for rehearing or petition for certiorari review. ( Id. at 10).
In his reply, filed on or about May 10, 2012, Malone "concedes that his claims are unexhausted and procedurally defaulted." (Doc. 6 at 2). However, he claims this court may, nonetheless, hear his § 2254 petition and grant habeas relief because he can establish cause for the default and actual prejudice resulting from the alleged violation of federal law. ( Id. ).
Claims 1 & 2
As the State notes, it is unclear how Malone's second alleged ground for relief is different from his first. In any event, both grounds allege one or more errors in the process Malone was afforded during the state collateral proceeding attacking his state conviction. "[W]hile habeas relief is available to address defects in a criminal defendant's conviction and sentence, an alleged defect in a collateral proceeding does not state a basis for habeas relief." Quince v. Crosby, 360 F.3d 1259, 1261-62 (11th Cir. 2004); see also Spradley v. Dugger, 825 F.2d 1566, 1568 (11th Cir. 1987). Therefore, these claims are not cognizable in federal habeas corpus.
Claim 3-Ineffective Assistance
Malone's Ineffective Assistance Claim Is Barred by § 2254(b)(1) and the Doctrine of Procedural Default
As Malone concedes, the third ground for relief alleged in his § 2254 petition is procedurally defaulted. Generally, a state prisoner cannot petition for federal habeas relief without first exhausting his state court remedies for challenging his conviction. § 2254(b)(1); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). To have exhausted his state court remedies, a state prisoner must have "fairly presented" the same claim he asserts before a federal habeas court to the state courts, McNair v. Campbell, 416 F.3d 1291, 1302 (11th Cir. 2005), "by invoking one complete round of the State's established appellate review process." Boerckel, 526 U.S. at 845. In Alabama, the appellate review process includes an application for rehearing before the Alabama Court of Criminal Appeals and a petition for certiorari review by the Alabama Supreme Court. See Ala. R. App. P. 39(c)(1)-(2), 40(c); Pruitt v. Jones, 348 F.3d 1355 (11th Cir. 2003) ( Boerckel rule requiring prisoner to file petition for discretionary review in state's highest court applies to state collateral review process). An application for rehearing must be filed within fourteen days of the date of issuance of the decision in question. Ala. R. App. P. 40(c). The application is a prerequisite to certiorari review by the Alabama Supreme Court. Ala. R. App. P. 39(c)(1). A petition for a writ of certiorari must be filed within fourteen days of the decision of the Alabama Court of Criminal Appeals on the application for rehearing. Ala. R. App. P. 39(c)(2).
"The teeth of the exhaustion requirement comes from its handmaiden, the procedural default doctrine." Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001). Where a state prisoner has failed to exhaust his state court remedies and those remedies are no longer available, his federal claim is procedurally defaulted, barring a federal court from granting habeas relief. Id. There are two exceptions: Federal habeas review of a procedurally defaulted claim is permissible where a state prisoner can demonstrate cause for the default and actual prejudice resulting from the alleged violation of federal law, or failure to consider the claim will result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991).
Because Malone neither filed an application for rehearing before the Alabama Court of Criminal Appeals nor petitioned the Alabama Supreme Court for certiorari review, he has failed to exhaust his remedies in the state courts. These remedies are now foreclosed to him because the time for filing an application for rehearing, which is a prerequisite to certiorari review by the Alabama Supreme Court, has long passed. See Ala. R. App. P. 39(c)(1), 40(c). Therefore, Malone's ineffective assistance claim is procedurally defaulted. While Malone concedes as much, he argues he can establish cause for the default and actual prejudice resulting from the alleged violation of federal law, such that this court may hear his § 2254 petition and grant him habeas relief.
Malone Cannot Establish Cause to Excuse the Default or Prejudice Resulting From the Alleged Violation of Federal Law
"To show cause, the petitioner must demonstrate some objective factor external to the defense' that impeded his effort to raise the claim properly in state court." Ward v. Hall, 592 F.3d 1144, 1157 (11th Cir. 2010) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). The cause alleged "must be something external to the petitioner, something that cannot fairly be attributed to him...." Coleman, 501 U.S. at 753. "An external impediment includes interference by state officials that prevented a petitioner from raising a claim." Ward, 592 F.3d at 1176 (internal quotations omitted).
In his petition presented to this court, Malone claims he did not file an application for rehearing of his appeal to the Alabama Court of Criminal Appeals because "[d]ue to institutional errors, [he] failed to receive the appellate court's decision in a timely manner." (Doc. 1 at 3). In his reply to the State's response to his § 2254 petition, Malone claims both compliance with Rule 40(c) was impracticable because of his delayed receipt of the appellate court's decision, and the time to file an application for rehearing had expired by the time he received the decision. (Doc. 6 at 3).
Malone claims he received a copy of the memorandum opinion affirming the denial of his Rule 32 petition on September 2nd. ( Id. ). Pursuant to Rule 40(c) of the Alabama Rules of Appellate Procedure, September 2nd was the last day Malone could file a timely application for rehearing in the Alabama Court of Criminal Appeals. Therefore, contrary to Malone's assertion, the time to file an application for rehearing had not yet expired when he received a copy of the memorandum opinion affirming the denial of his Rule 32 petition. Had Malone deposited an application for rehearing in the internal mail system of the institution where he was incarcerated on September 2nd, it would have been timely. This is because the State of Alabama expressly incorporated the "mail box" rule enunciated in Houston v. Lack, 487 U.S. 266 (1988) into its procedural rules. See Ala. R. App. P. 4(c). The "mail box" rule generally provides a pleading is deemed filed by an inmate when given to prison authorities for mailing, regardless of when the court receives it. Id .; Parris v. Prison Health Servs., Inc., 68 So.3d 108, 110 (Ala. Civ. App. 2009). "Alabama courts apply the mailbox rule ...