United States District Court, N.D. Alabama, Northeastern Division
WILLIAM M. ACKER, Jr., District Judge.
On August 12, 2008, a jury convicted Richard Andrews ("Petitioner") of one count of first-degree sodomy in violation of Alabama Code § 13A-6-63, one count of second-degree sodomy in violation of Alabama Code § 13A-6-64, and one count of first-degree sexual abuse in violation of Alabama Code § 13A-6-66. (Doc. 6-1 at 8). After unsuccessfully challenging his conviction in the state courts, both on direct appeal and through a Rule 32 petition, Petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("Petition") in this federal district court. This Petition raises numerous claims for relief that can generally be broken into four categories of claims: ineffective assistance of trial counsel claims, trial court error claims, prosecutorial misconduct claims, and ineffective assistance of appellate counsel claims.
For the reasons that follow, the Petition is due to be denied, and this case is due to be dismissed with prejudice.
I. FACTS AND PROCEDURAL HISTORY
In the fall of 2007, Petitioner was indicted on charges related to the alleged sexual abuse of his son M.A. (Doc. 6-1 at 18). After a jury trial, Petitioner was found guilty on all counts. The facts that follow are gleaned from the testimony during trial and the allegations contained in the Petition. At the outset, the court notes Petitioner denies any inappropriate contact with his son occurred.
M.A. testified that when he was 10 years old Petitioner "was teaching [him] about the birds and bees." (Doc. 6-2 at 55). M.A. testified this discussion about sex took place over a 3-day period and that during those days Petitioner engaged in numerous sexual activities with him. M.A. testified Petitioner masturbated and made M.A. touch his penis. M.A. said Petitioner touched his penis, engaged in oral sex with him and penetrated him anally. M.A. testified Petitioner continued to abuse him sexually for the next 5 years until he was 15 years old. During that time, M.A. performed oral sex on his father approximately 500 times, and his father engaged in anal sex with him 400-500 times. M.A. further testified he could not state how many times his father performed oral sex on him but that it was "a lot." M.A. testified when he was 15 years old he told his father he would call the police if his father did not stop sexually abusing him. (Doc. 6-11 at 2-3).
In September of 2006, M.A. told his girlfriend about the abuse, when he blurted it out during an argument. (Doc. 6-4 at 96-97). His girlfriend later told her mother about the abuse, and her mother contacted a therapist, who was required to notify the police. (Doc. 6-28 at 40-41). M.A. testified that a police officer, Lt. Terry White, and an employee from the Department of Human Resources (DHR) came to his school to speak with him. (Doc. 6-11 at 3). During this meeting at the school, M.A. told Lt. White and the DHR employee about the abuse he had endured. (Doc. 6-2 at 76).
Lt. White is an investigator in the Sex Crimes Unit of the Decatur Police Department. (Doc. 6-11 at 5). He testified he had been contacted by a DHR employee about allegations concerning M.A. and Petitioner. Lt. White spoke with M.A. at his high school in May of 2007. ( Id. at 5-6). Lt. White testified M.A. agreed to use his cellular telephone to place a call directly to Petitioner and allowed Lt. White to record the phone call. (Doc. 6-28 at 70-72). At the time this recorded conversation took place M.A. was under the age of 19 and, thus, was a minor.
Prior to trial, M.A. met with defense counsel on two separate occasions. During those meetings, M.A. informed defense counsel he had not been sexually abused and signed an affidavit stating as much. (Doc. 6-3 at 6-9). M.A. testified that the weekend before trial, his father told him the state might drop the charges if M.A. did not show up to testify. His parents gave him money and a debit card, which M.A. used to travel out of state for the first day of trial. M.A. was arrested the next day on an attachment and brought to the courthouse. ( Id. at 12-16). Petitioner alleges M.A. was handcuffed, placed into a jail cell, and confined for about forty-five minutes. He further alleges the assistant district attorney told M.A. that this "was just a small taste of what you will get if you don't testify at trial as to the original statement that we received." (Doc. 1 at 21).
Petitioner alleges that prior to trial defense counsel failed to conduct an investigation into M.A.'s claims. He asserts she had knowledge that a physical examination performed on M.A. at the Child Advocacy Center failed to show any evidence of abuse, that M.A.'s pediatricians had performed physical exams on M.A. numerous times during the period of abuse but had not noted concerns about sexual abuse, and that Petitioner has the herpes virus and M.A. does not, yet she did not contact an expert as to the relevance of this information. Petitioner also alleges defense counsel failed to interview defense witnesses or view an allegedly exculpatory videotape prior to trial. (Docs. 1 and 8).
During trial, M.A. testified in detail about how Petitioner sexually abused him. M.A. acknowledged he told Petitioner's defense attorney he had not been abused by Petitioner and signed an affidavit stating the same but said he had been abused and was testifying honestly during the trial. M.A.'s girlfriend testified M.A. had told her he had been sexually abused by his father between the ages of ten and fifteen. (Doc. 6-11 at 5). Christy Jacobs, a therapist who had treated M.A., testified M.A. had disclosed to her Petitioner had abused him between the ages of ten and fifteen. (Doc. 6-11 at 6). Debbie Gibson, a therapist and forensic evaluator, testified child victims of sexual abuse often recant allegations due to fear of consequences and pressure from the perpetrator and family. Defense counsel did not cross examine Gibson. (Doc. 6-5 at 23) Petitioner testified on his own behalf and denied all allegations of abuse. (Doc. 6-5 at 36-61 and Doc. 6-6 at 41-94).
On the second day of trial prior to the jury being brought into the courtroom for the day, Petitioner began experiencing chest pain. (Doc. 6-3 at 51). Someone at the court called 911, and Petitioner was taken to the hospital. Petitioner alleges several members of the jury saw him being wheeled out of the courthouse on a stretcher. (Doc. 1 at 15). After Petitioner arrived back at court that afternoon, defense counsel moved for a mistrial based on the fact certain jury members witnessed the incident. (Doc. 6-3 at 71). She later withdrew the motion. ( Id. at 73).
The jury returned a guilty verdict on all charges, and Petitioner was sentenced to serve a 20-year term of imprisonment on the first-degree sodomy conviction, a 10-year term of imprisonment for the second-degree sodomy conviction, and a 5-year term of imprisonment for the first-degree sexual abuse conviction. (Doc. 6-11 at 1). Defense counsel filed a motion for a new trial, which was denied after a hearing. (Doc. 6-7 at 68). The Alabama Court of Criminal Appeals affirmed the convictions on appeal (Doc. 6-11), and the Alabama Supreme Court denied certiorari (Doc. 6-15). Petitioner filed a timely Rule 32 petition, which was summarily denied by the trial court on March 28, 2011. (Doc. 6-16). Petitioner appealed that decision to the Alabama Court of Criminals Appeals, which affirmed the trial court's decision and affirmatively adopted the trial court's decision as its own. (Doc. 6-23). After a filing a motion for rehearing (Doc. 6-24), the Petitioner filed a petition for writ of certiorari to the Alabama Supreme Court (Doc. 6-26), which was denied (Doc. 6-27). Subsequently, Petitioner filed a timely § 2254 petition in this court. (Doc. 1).
Review of the Petition is limited by 28 U.S.C. § 2254 as amended by the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"). See Williams v. Taylor, 529 U.S. 362, 402-03 (2000). As such, for those claims that the state court adjudicated on the merits and were not otherwise procedurally defaulted, the court may grant habeas relief only in those cases where the state court's decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, " 28 U.S.C. § 2254(d)(2), or "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1).
That being said, a state prisoner "must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition." O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); see also 28 U.S.C. § 2254(b)(1) (a prisoner in state custody shall not be granted a writ of habeas corpus unless the prisoner "has exhausted the remedies available in the courts of the State."). The exhaustion doctrine requires that a petitioner "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." O'Sullivan, 526 U.S. at 845.
A. Ineffective Assistance of Counsel Claims
The Sixth Amendment affords a criminal defendant the right to "the Assistance of Counsel for his defence." U.S. CONST. amend VI. "It has long been recognized that the right to counsel is the right to effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970); see also Cuyler v. Sullivan, 446 U.S. 335, 344 (1980). A claim of ineffective assistance of counsel can be established upon a showing that the (1) "counsel's performance was deficient, " and (2) "that the deficient performance prejudiced the defense" because the "errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland v. Washington, 466 U.S. 668, 687 (1984). In a habeas corpus action, the petitioner generally carries the burden to establish both components. Lawhorn v. Allen, 519 F.3d 1272, 1293 (11th Cir. 2008) (citing Atkins v. Singletary, 965 F.2d 952, 958-59 (11th Cir. 1992)).
The Eleventh Circuit has explained:
To establish a constitutionally deficient performance, the defendant must "identify the acts or omissions... that are alleged not to have been the result of reasonable professional judgment" to "show that counsel's representation fell below an objective standard of reasonableness" and "outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 687, 690. The "highly deferential" reviewing court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, " id. at 689, and recognize that cases warranting the grant of habeas relief based on an ineffective assistance claim "are few and far between." Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000) (en banc) (quotation and citation omitted).... "[T]he defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.'" Strickland, 466 U.S. at 689.... Because "it is all too easy to conclude that a particular act or omission of counsel was unreasonable in the harsh light of hindsight, " Bell v. Cone, 535 U.S. 685, 702 (2002), we must make "every effort... to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S. at 689.
Lawhorn, 519 F.3d at 1293-94.
Once constitutionally deficient performance is established, the petitioner generally must also prove prejudice. To do so the petitioner must convince the court "that there is a reasonable probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. While a petitioner need not show that counsel's deficient conduct "more likely than not altered the outcome of the case, " it is not enough for the petitioner to show counsel's errors merely had "some conceivable effect on the outcome of the proceeding." Id., 466 U.S. at 693. A court may decline to reach the performance prong if convinced the prejudice prong cannot be satisfied in any event. Boyd v. Allen, 592 F.3d 1274, 1293 (11th Cir. 2010).
Having established the general law with respect to ineffective assistance of counsel claims, the court will now address each of Petitioner's claims in turn.
1. Trial Counsel's Failure to Conduct a Pretrial Investigation
(1) Trial counsel was ineffective because she failed to conduct an appropriate pretrial investigation. Specifically, she failed to interview or investigate the doctors from the Child Advocacy Center in Huntsville, Alabama, who performed the physical exam on M.A.; she failed to contact or interview M.A.'s family doctor; she failed to obtain medical records from M.A.'s family doctor or request that he testify at trial; and she failed to get an expert related to herpes. (Doc. 1 at 7-10). 
Petitioner contends he was denied his Sixth Amendment right to counsel when his trial attorney failed to properly investigate the lack of medical evidence to support the allegations of sexual abuse. (Doc. 1 at 7-10); (Doc. 8 at 11-20). Specifically, he alleges trial counsel failed to consult with M.A.'s pediatricians, who had examined M.A. numerous times during the time period in which the abuse occurred, or subpoena M.A.'s medical records from this time period; failed to consult with the physician who examined M.A. at the request of the State; and failed to consult a medical expert on the herpes virus. (Doc. 1 at 7-10).
Petitioner argues relevant medical records and information from M.A.'s pediatricians and the SANE nurse would all show there was no physical evidence of sexual abuse. Further, an expert on the herpes virus would have testified as to the impossibility of sexual contact given Petitioner has the herpes virus and M.A. does not. (Doc. 1 at 7). He further argues had trial counsel investigated these facts and presented them to the jury, it is likely the jury would have found him not guilty. (Doc. 8 at 11-20).
The trial court addressed these claims when it denied Petitioner's Rule 32 petition. (Doc. 6-16 at 4-27). In denying this claim, the court began by outlining the pleading standard for ineffective assistance of counsel claims. (Doc. 6-16 at 10). In doing so, the court cited to Hyde v. State, 950 So.2d 344, 356 (Ala.Crim.App.2006), which in turn notes the federal standard for ineffective assistance of counsel described in Strickland. The trial court specifically addressed those claims related to trial counsel's failure to conduct a pretrial investigation as follows:
Petitioner alleges that he was prejudiced by counsel's inadequate pre-trial investigation into the lack of evidence that M.A. had suffered any physical injuries or illness as a result of Petitioner's allegedly ongoing sexual abuse and sodomy. To satisfy his burden of pleading as to this claim, the Petitioner must plead with specificity what information would have been obtained as a result of counsel's investigation of this issue and, assuming the information would have been admissible, facts indicating that there is a reasonable probability that its admission would have produced a different result at trial.... Upon consideration of the allegations in the Petition, the Court finds that he has failed to satisfy this burden.
As part of this claim, Petitioner contends that counsel should have attempted to obtain the medical records of routine physical examinations conducted by M.A.'s pediatricians during the five-year period in which Petitioner's abuse of M.A. allegedly took place. Petitioner contends that these records would have shown that during these examinations, M.A.'s physicians noticed no evidence of sexual abuse. Petitioner's allegation, however, is based purely on speculation about the contents of these records. Accordingly, he has failed to satisfy this burden of pleading specific facts indicating that he was prejudiced by counsel's omission. Furthermore, Petitioner has alleged that M.A. himself testified that he had no medical problems, pain, tears, or [scarring] during the period of the alleged abuse and that he did not have any recurring medical problems from the alleged abuse. As such, even accepting as true Petitioner's speculation regarding the contents of these records, Petitioner has failed to plead specific facts indicating that he was prejudiced by counsel's failure to obtain these records or seek their admission into evidence.
Petitioner also alleges that counsel should have contacted the SANE nurse about the physical examination that she conducted at the behest of the State and that counsel should have obtained the nurse's report of the results of this examination. Petitioner alleges that this examination revealed no physical evidence of sexual abuse. Again, even accepting this allegation as true, Petitioner has failed to plead facts indicating that, but for counsel's failure to contact the SANE nurse or obtain the report in question, there is a reasonable probability that the result of the trial would have been different. Furthermore, Petitioner has alleged that counsel in fact attempted to discover this report and that the State improperly withheld it. As such, he has failed to plead facts indicating that counsel's failure to obtain this report constituted professional error. Similarly, Petitioner has failed to plead facts indicating that counsel had any means of compelling the SANE nurse to discuss her examination of  M.A. Absent such means, counsel's failure to interview the nurse cannot be deemed to be professional error.
* * *
As alleged by the Petitioner, the Assistant District Attorney stated on the record that she anticipated that, if allowed to testify at trial, the SANE nurse would testify that "it's very common in these kinds of cases that tears to the body harmed by this kind of abuse typically heal in 48 hours" and that she had not examined M.A. until two years after the alleged abuse. Petitioner contends that it was necessary to call M.A.'s pediatricians to rebut this anticipated testimony. More specifically, he alleges that if called, these physicians would have testified that multiple acts of sodomy would cause physical signs of penetration and that in the case of a five (5) year old victim, the insertion of a finger would result in physical changes that would be present for a considerable, if not permanent amount of time.
Upon consideration, the Court finds that Petitioner has failed to satisfy his burden of pleading specific facts indicating that counsel's failure to call these physicians as witnesses constituted professional error or that, but for this omission, there is a reasonable probability that the result of the trial would have been different.
As an initial matter, Petitioner has failed to allege facts indicating that the SANE nurse testified at trial in accordance with what the prosecutor thought she would say. Instead, Petitioner's own exhibits reflect that, pursuant to his counsel's objection, the nurse was not allowed to testify because the State had failed to produce a copy of the nurse's report to the Petitioner. Accordingly, he has failed to plead specific facts indicating that he was prejudiced by counsel's omission.
Furthermore, the Petitioner's mere speculation about the content or nature of the testimony that might have been elicited from these physicians fails to satisfy his burden of pleading specific facts that if true would show that counsel's omission constituted professional error or that he was prejudiced as a result. Finally, as to the admissibility of this opinion testimony, Petitioner has failed to plead any facts indicating that either of M.A.'s pediatricians had the requisite experience in examining sexually abused children to qualify as an expert on the long term physical indications of such abuse. Furthermore, as to expert testimony regarding the physical effects of sexual abuse of a five-year-old, Petitioner has failed to plead facts indicating that this evidence would have been relevant or admissible in a case in which the alleged victim was at any relevant time not less than ten years of age.
* * *
Petitioner has failed to plead specific facts indicating that, but for [counsel's failure to present exculpatory expert medical testimony about the Genital Herpes Virus], there is a reasonable probability that the result of the trial would have been different. Furthermore, having presided over the Petitioner's trial and having personal knowledge of the nature of the evidence presented, the Court finds as a matter of fact that Petitioner was not prejudiced by these omissions.
(Doc. 6-16 at 13-15).
"AEDPA sharply limits the circumstances in which a federal court may issue a writ of habeas corpus to a state prisoner whose claim was adjudicated on the merits in State court proceedings.'" Johnson v. Williams, 133 S.Ct. 1088, 1094 (2013) (citing 28 U.S.C. § 2254(d)). Thus, the first question the undersigned must address is whether the trial court's ruling on Petitioner's Rule 32 petition constitutes an adjudication on the merits of his Sixth Amendment ineffective assistance of counsel claim. The trial court's opinion does not mention Petitioner's Sixth Amendment claims, nor does it reference federal law when ruling on the claim. (Doc. 6-16 at 9-15). However, "[w]hen a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Williams, 133 S.Ct. at 1094 (internal citation and quotation marks omitted). While this presumption is rebuttable, Petitioner has made no argument indicating it should be rebutted. Further, given that the standard cited by the trial court for determining whether counsel has been ineffective aligns with Strickland, it is unlikely the court did not decide the federal claim. Id. at 1098-99. Accordingly, the undersigned finds Petitioner's ineffective assistance of counsel claims were adjudicated on the merits.
This is true even though the trial court's decision was based on Petitioner's failure to plead facts that would entitle him to relief. Powell v. Allen, 602 F.3d 1263, 1273 (11th Cir. 2010). Because of the nature of the Rule 32 court's decision, this court's review under AEDPA is limited to whether the state court's determination that Petitioner's Rule 32 petition failed to plead sufficient facts to support a claim of ineffective assistance of counsel was contrary to, or an unreasonable application of, Supreme Court precedent. Id. "This is a difficult to meet and highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt. The petitioner carries the burden of proof." Cullen v. Pinholster, 131 S.Ct. 1388, 1398, (2011) (citations and internal quotation marks omitted).
As a preliminary note, Petitioner has not offered any argument concerning whether the Rule 32 court's decision was contrary to, or involved an unreasonable application of, federal law, as determined by the United States Supreme Court. On that fact alone, Petitioner has failed to meet his burden. Nevertheless, the court will address the issue in more detail below.
The Supreme Court has explained this deferential standard as follows:
Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.
Williams v. Taylor, 529 U.S. at 412-13. First, it is clear the opinion denying Petitioner's Rule 32 petition was not "contrary to" clearly established federal law as determined by the Supreme Court of the United States. The Alabama court's decision was not opposite to the United States Supreme Court on a question of law. Further, the Rule 32 court did not confront facts that were materially indistinguishable from a relevant Supreme Court opinion and reach a different result. Id.
The Rule 32 court correctly identified the two prong-performance and prejudice standard, as described in Strickland, for determining when counsel's performance is constitutionally deficient. Thus, the court must determine whether the Rule 32 court unreasonable applied that standard to the facts of this case. Id. To be clear, "the question for a federal habeas court is whether the state court's application of clearly established federal law was objectively unreasonable, ' Williams, 529 U.S. at 409, and an unreasonable application of federal law is different ...