United States District Court, N.D. Alabama, Middle Division
VIRGINIA EMERSON HOPKINS, District Judge.
This is an action on a pro se petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. (Doc. 1). It was filed by Dan Charley, an Alabama state prisoner serving a life sentence at the Limestone Correctional Facility in Harvest, Alabama, following his conviction for rape in the first degree. On February 19, 2015, the magistrate judge entered a report pursuant to 28 U.S.C. § 636(b)(1) and FED. R. CIV. P. 72(b)(1) recommending that Charley's habeas petition be denied in its entirety. (Doc. 21 ("R&R")). After being granted several extensions, on April 15, 2015, Charley timely filed a 55-page objection to the magistrate judge's R&R (with an attached 37 pages of exhibits) (Doc. 30). In addition, on March 5, 2015, the State filed what is effectively a pro forma objection, whose goal is to preserve its argument that many of the claims of ineffective assistance of counsel that the Magistrate Judge's R&R rejects on the merits are also procedurally defaulted. (Doc. 24).
In Charley's objection, he rehashes most of the arguments from his petition and other filings made in response to the State's Answer. It will suffice to say that the undersigned agrees with the magistrate judge's thorough discussion and disposition of those arguments in his 72-page R&R. However, Charley's objection also include arguments based on additional evidence that he now offers for the first time. That new evidence relates to Charley's habeas claims regarding the testimony of Wendy Mathis, the Sexual Assault Nurse Examiner ("SANE") who, on June 7, 2006, performed the rape kit examination of the victim, J.J., at the Crisis Center Clinic she ran in Birmingham. As discussed in the R&R, Mathis testified at Charley's trial in April 2007 that her exam revealed a one centimeter injury just below J.J.'s vaginal opening that was consistent with recent intercourse and that she microscopically observed sperm cells in a swab sample taken from J.J.'s vaginal canal. Subsequently, Jaclyn Bowling, a DNA examiner with the Alabama Department of Forensic Sciences, testified that the genetic traits in the rape kit vaginal swab taken from J.J. matched the traits in a swab taken from Charley.
The evidence that Charley now offers shows that on May 11, 2008, about a year after Charley's trial had concluded, the Alabama State Board of Nursing (the "Board") issued a "Statement of Charges and Notice of Hearing" advising that the Board was pursuing disciplinary action against Mathis, pursuant to ALA. CODE § 34-21-25. (Doc. 30 at 57-69). The Board alleged therein that Mathis's certification as a Certified Registered Nurse Practitioner ("CRNP") had lapsed in 2002 and that, on January 4, 2008, her employment with the clinic in Birmingham had been terminated due to her misrepresentation of her CRNP certification and for failing to comply with the clinic's standards, policies, and procedures. (Doc. 30 at 59-61, §§ IV, V, VI). The Board further charged in the Statement as follows:
On or about January 4, 2008, the Crisis Center facility, which was under the control of [Mathis], was found to be in a state of disarray, and photo documentation of such was taken, upon [Mathis's] termination. In particular, the following was observed:
Multiple medical charts left in an open area
Multiple State of Alabama Evidence Collection "Kits" (for collection of sexual assault evidence) left unsealed and unsecured throughout the office
Copies of multiple charts and fronts of kits in open area
Photograph of victim on top of filing cabinet in open area
Open paper bag containing a chart and an unsealed kit
Refrigerator containing numerous urine and blood samples in Ziploc bags, refrigerator unlocked and not marked as containing evidence
Unmarked, uncovered plastic cup containing urine
Overflowing sharps container containing a butterfly device not ...