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Wilkerson v. Hetzell

United States District Court, N.D. Alabama, Southern Division

September 30, 2014

TIMOTHY EARL WILKERSON, Petitioner,
v.
WARDEN GARY HETZELL and THE ATTORNEY GENERAL OF THE STATE OF ALABAMA, Respondents.

MEMORANDUM OPINION

WILLIAM M. ACKER, Jr., District Judge.

Timothy Earl Wilkerson seeks habeas corpus relief from this court concerning his conviction of capital murder in Jefferson County Circuit Court. See 28 U.S.C. § 2254. (Doc. 1).[1] The magistrate judge assigned this matter conducted a preliminary review and found that the petition is due to be denied. (Doc. 19). Wilkerson has filed objections to that determination.

The petitioner was convicted of capital murder in the death of Anthony White following a jury trial. (Ex. A at 7, 19, 25-26: Tr. 13).[2] He was sentenced on May 7, 2007, to life imprisonment without parole. ( Id. at 8, 20). The conviction is premised on a violation of ALA. CODE § 13A-5-40(17).[3] In the present petition and amended petition, he asserts (1) that his trial counsel were ineffective in failing to object when his character witnesses were cross-examined about specific acts that had not been previously admitted into evidence and the pathologist was allowed to testify about the victim's toxicology; (2) his due process and equal protection rights were violated because the murder statute was unconstitutionally vague, insufficiently narrow, and "is being applied to his case in an arbitrary and capricious manner"; (3) his sentence is disproportionate and cruel and unusual punishment; and (4) the legislature did not intend for the murder statute to apply to the facts of his case. (Petition at 10-12[4] & Am. Pet.[5] at 1). After the magistrate judge found the claims to be without merit, the petitioner objected to the determinations related to the statute of conviction (ALA. CODE § 13A-5-40(17)). Specifically, he objects as follows:

1. The magistrate judge incorrectly found that the petitioner was challenging the conviction premised on the argument that the conviction was contrary to the intent of the Alabama legislature;
2. The statute of conviction was intended to apply to prosecutions of gang members in drive-by-shootings;
3. The legislative finding that this portion of the statute was intended to apply to gangs "was made law" in " In re Corwin Russell, No. 10-14551-F; Fondren v. Allen, [2012 WL 3627759] (N.D. Ala. Aug. 20, 2012)], and Johnson v. Warden Hooks, et al., 03-cv-2913-IPJ";
4. The magistrate judge failed make a determination of whether the Court of Criminal Appeals decision was contrary to law or involved an unreasonable application of clearly established Supreme Court precedent or was an unreasonable determination of the facts in light of the evidence;
5. The magistrate judge's findings that "murder is not a Constitutionally protected activity" and that "[i]t is rational for the legislature to recognize killers whose victims are killed while in a vehicle as a separate class, and making that offense punishable by either life imprisonment or the death penalty constitute errors of law; and

6. The magistrate judge's determination that "the statute is constitutional and properly elevates the murder of a person in a vehicle through the use of a deadly weapon to a capital offense" constitutes an error in fact and law.

(Doc. 20 at 1-4). He also complains that his sentence is improper because his case was "never elevated to Capital murder because the murder was not committed under the aggravating circumstances required by [law]." ( Id. at 5). Finally, he claims "that even if he is not entitled to relief on all his claims, his habeas corpus petition must be reviewed according to the substantive change in law" based on the decision of United States District Judge Inge P. Johnson in Johnson v. Warden Hooks, 03-cv-02913-IPJ and the decision in Smith v. Ritter, 811 F.2d 878 (11th Cir. 1998).[6] ( Id. )

The petitioner is entitled to no relief in this case. The underlying facts concerning the offense are clear. The petitioner had a disagreement with the victim, he then went to the trunk of his car, took out an S.K.S. rifle, ran to the passenger side of the victim's car and shot him in the head, liver and chest. The police were called and the petitioner left the scene. The police recovered the petitioner's vehicle and found the loaded S.K.S. rifle and a magazine clip with 32 live rounds. The petitioner asserted that the shooting was done in self defense. The jury rejected his defense and found him guilty. (R. 19 at 4-6).

In his federal habeas petition, the petitioner challenges the murder statute under which he was convicted. The magistrate judge recommended the challenge be denied. He stated, in pertinent part, as follows:

Wilkerson next challenges Alabama Code Section 13A-5-40(a)(17), which makes a murder committed by or through the use of a deadly weapon while the victim is in a vehicle a capital offense. ALA. CODE § 13A-5-40(a)(17). He asserts due process and equal protection challenges premised on the argument that the statute purportedly is (1) "unconstitutionally vague, " (2) "insufficiently narrow, " and (3) being applied to his case in an arbitrary and capricious manner. (Am. Pet. at 1-2). He also asserts that his sentence is disproportionate and cruel and unusual and that the legislature did not intend for the statute to apply to the facts of his case. ( Id. ) Wilkerson offers no facts or argument in support of his claims. ( Id. ) The respondents retort that he is entitled to no relief because he has not shown that the determinations of the Alabama Court of Criminal Appeals were contrary to, or an unreasonable application of, clearly established Federal law. (Doc. 17 at 2). This court agrees.
These claims were presented on direct appeal. The Court of Criminal Appeals rejected each. That court deduced that Wilkerson's challenges that the statute was vague, overly broad, and not intended for facts such as those in his case were premised on the assertion that his conviction was contrary to the Alabama Legislature's intent that the statute apply only if the deadly weapon was fired or otherwise used within or from a vehicle. (Ex. E at 2-3). The court rejected this contention, noting that the cited legislative intent [- concerning gangs - ] applied to § 13A-5-40(a)(18) not (a)(17). (Ex. E at 3). It further held that this legislative resolution was "not law." ( Id. at 4). Wilkerson offers nothing ...

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