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Cooley v. Price

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

January 18, 2017

CHARLES EDWARD COOLEY, JR., AIS # 230863 Petitioner,
v.
CHERYL PRICE, et al., Respondent.

          REPORT AND RECOMMENDATION

          SONJA F. BIVINS UNITED STATES MAGISTRATE JUDGE.

         Charles Edward Cooley, Jr., a state inmate in the custody of Respondent, has petitioned this Court for federal habeas corpus relief pursuant to 28 U.S.C. § 2254 (Doc. 15). The petition has been referred to the undersigned Magistrate Judge for a 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. The undersigned has conducted a careful review of the record and finds that no evidentiary hearing is required to resolve this case. Kelley v. Sec'y for Dep't of Corr., 377 F.3d 1317 (11th Cir. 2004). Upon careful consideration, it is recommended that this action be dismissed his action be dismissed and that judgment be entered in favor of Respondent on all claims.

         I. BACKGROUND FACTS

         Cooley filed the instant petition attacking his 2009 conviction for attempted murder and first-degree assault and the subsequent life sentences imposed by the Circuit Court of Mobile County, Alabama. (Doc. 15). Cooley gave notice of his appeal at sentencing on June 25, 2009. (Doc. 1-2 at 15). On direct appeal, Cooley argued (1) he was denied his right to a speedy trial; (2) his photographic line-up was inadmissible; (3) he was entitled to a mistrial because the victim referred to his photo as a “mug shot”; and (4) he did not knowingly, intelligently, and voluntarily waive his right to counsel. (Doc. 1-1 at 20-36). The Alabama Court of Criminal Appeals affirmed Cooley's convictions on July 16, 2010, and overruled his application for rehearing on July 30, 2010. (Id.) The Supreme Court of Alabama denied certiorari review and issued a certificate of judgment on January 7, 2011. (Doc. 24-8).

         Cooley filed a Rule 32 petition in the Circuit Court of Mobile County, Alabama, and an accompanying in forma pauperis application. (Docs. 24-10; 24-9) The circuit court initially granted the motion to proceed in forma pauperis on June 6, 2012. (Doc. 24-11). Subsequent thereto, the State filed a motion to dismiss, and on April 9, 2013, the circuit court issued an order reversing its previous order granting Cooley in forma pauperis status. (Docs. 24-11; 24-12). The circuit court dismissed Cooley's case without ruling on the Rule 32 petition. (Id.)

         Cooley appealed the dismissal of his Rule 32 petition and reasserted several of the arguments raised in the petition. (Doc. 24-12). The Alabama Court of Criminal Appeals dismissed the appeal on August 20, 2013. (Doc. 24-12). The appeals court found that the circuit court did not abuse its discretion in withdrawing Cooley's in forma pauperis status because the record reflected that Cooley had deposited $1, 381.05 in his inmate account in the 12 months preceding the filing of his request to proceed in forma pauperis. (Id.). The appeals court also observed that “[a]n adverse ruling by the trial judge is a prerequisite for preserving an alleged error in a criminal trial for appellate review”, and that in dismissing Cooley's case, the trial court did not address Cooley's Rule 32 petition; thus, there was no final judgment from which to appeal. (Id.). The appeals court further advised that “[a] writ of mandamus is the proper vehicle by which a petitioner may compel the trial court to proceed on a Rule 32 petition in which the trial court has denied the petitioner's request to proceed in forma pauperis.” (Id.).

         Cooley filed a petition for writ of mandamus requesting an order directing the circuit court to dispose of his Rule 32 petition. (Doc. 24-14). In an order dated October 31, 2013, the Alabama Court of Criminal Appeals denied the writ on the ground that there was no indication that Cooley had paid the filing fee, and that a postconviction petition is not deemed filed until a filing fee is paid or an in forma pauperis request is granted and the fee waived. (Id.) The appeals court also held that a circuit court does not obtain subject matter jurisdiction over the postconviction proceeding until a filing fee is paid or waived, and in the absent subject matter jurisdiction, the circuit court could not be directed to dispose of a petition. (Id.). The Supreme Court of Alabama denied review, and a certificate of judgment was issued November 15, 2013. (Doc. 24-13).

         Cooley filed the instant petition for habeas corpus relief on March 28, 2014.[1] (Doc. 15). In his petition, Cooley alleges that the State did not prove that he knowingly and intelligently waived his right to counsel. (Id.). In her response, Respondent asserts that Cooley's claim is procedurally barred because he never received an adverse ruling on his Rule 32 petition; thus, there is no final judgment from which he can appeal. (Doc. 24). Cooley filed a response in opposition wherein he argues that he diligently pursued his rights in state court, and that the trial court abused its discretion in withdrawing his in forma pauperis status and dismissing his Rule 32 petition without notice. (Doc. 25). Upon careful review of the filings and supporting documents, the undersigned finds that Cooley's petition should be denied.

         II. ANALYSIS

         “The role of federal habeas proceedings, while important in assuring that constitutional rights are observed, is secondary and limited. Federal courts are not forums in which to relitigate state trials.” Smith v. Newsome, 876 F.2d 1461, 1463 (11th Cir. 1989). Indeed, “[f]ederal review of a petitioner's claim is barred by the procedural-default doctrine if the last state court to review the claim states clearly and expressly that its judgment rests on a procedural bar, and that bar provides an adequate and independent state ground for denying relief.” Atkins v. Singletary, 965 F.2d 952, 955 (11th Cir. 1992); Harris v. Reed, 489 U.S. 255, 263, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989); Bailey v. Nagle, 172 F.3d 1299, 1303 (11th Cir. 1999). A federal court must determine “whether the last state court rendering judgment clearly and expressly stated that its judgment rested on a [state] procedural bar.”

By its very definition, the adequate and independent state-grounded doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law. See Fox Film Corp. v. Muller, 296 U.S. 207, 210, 56 S.Ct. 183, 80 L.Ed. 158 (1935). Thus, by applying this doctrine to habeas cases, [Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977)] curtails reconsideration of the federal issue on federal habeas as long as the state court explicitly invokes a state procedural bar rule as a separate basis for decision. In this way, a state court may reach a federal question without sacrificing its interests in finality, federalism and comity.

Harris v. Reed, 489 U.S. at 264 n.10.

         A three-part test is utilized to determine whether a state court's procedural ruling constitutes an independent and adequate state rule of decision. Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001). “First, the last state court rendering a judgment in the case must clearly and expressly state that it is relying on state procedural rules to resolve the federal claim without reaching the merits of that claim.” Id. Second, the state court's decision must rest entirely on state law grounds and not be “intertwined with an interpretation of federal law.” Id. Third, the state procedural rule must be adequate. Id. The adequacy requirement has been interpreted to mean that the rule must be firmly established and regularly followed, that is, not applied in an arbitrary or unprecedented fashion. Id.

         The undersigned observes that in Alabama, it appears clear that the requirement of a filing fee or grant of in forma pauperis motion is a firmly established and regularly followed condition to filing. Indeed, Rule 32.6(a) of the Alabama Rules of Criminal Procedure provides in relevant part that a Rule 32 petition “shall be. . . accompanied by the filing fee prescribed by law on civil cases in the circuit court unless the petitioner applies for and is given leave to prosecute the petition in forma pauperis.” See also Ala. Code § 12-19-70; Ex Parte Wyre, 74 S.3d 479, 482 (Ala.Crim.App.2011)(holding that trial court acted within its discretion in denying IFP status where petitioner had received $876.52 in deposits during the 12 months preceding the filing of his Rule 32 petition); Ex parte Holley, 883 So.2d 266, 268-69 (Ala.Crim.App.2003)(same, where statement showed monthly deposit balances as high as $185). However, the Alabama Court of Criminal Appeals held, in Beamon v. State of Alabama, 204 So.3d 1 (Ala.Crim.App.2014), that when a request to proceed in forma pauperis is denied, the circuit court should, by order, give the petitioner a reasonable time, such as 30 days, to pay the filing fee, and that if the petitioner does not pay the filing fee within the time set forth in the circuit court's order, the circuit court may then dismiss the petition for lack of jurisdiction to consider the petition.

         In this case, nearly a year after Cooley sought and was granted permission to proceed in forma pauperis, the circuit court withdrew the order granting in forma pauperis status and dismissed the case without affording Cooley an opportunity to pay the filing fee. This Court need not decide if under the circumstances of this case, the State's rule precluding review in the absence of a filing fee or grant of in forma pauperis status was firmly established, because Petitioner' claim lacks merit[2] . See 28 U.S.C. § 2254(b)(2); Smith v. Crosby, 159 F. App'x 76, 79 n.1 (11th Cir. 2005); Charley v. Estes, 2015 U.S. Dist. LEXIS 64636 (Feb. 19, 2015)(court held that it was not necessary to consider the state's procedural default argument where the claim was plainly to be rejected on the merits).

         Cooley argues that the state court did not prove that he knowingly and intelligently waived his right to counsel. (Doc. 15 at 14). He states that during trial, he became “obviously disturbed” by his trial counsel's performance, and informed the court that he “waived his right to counsel so he could obtain the assistance of a new attorney”. (Id. at 15). The record reflects that the trial court denied Cooley's request to continue the ongoing trial in order to retain new counsel, and as a result, Cooley asserted his right to waive counsel and represent himself. (Doc. 42-2 at 213-226). Cooley alleges that the colloquy between him and the trial court is insufficient to prove that his waiver of counsel was not knowing and voluntary. (Doc. 15 at 15). On direct appeal, the Alabama Court of Criminal Appeals affirmed Cooley's conviction, and expressly found that his assertion regarding the waiver of his right to counsel was without merit. (Doc. 24-7). The Supreme Court of Alabama denied certiorari review. (Doc. 24-8). The record clearly reflects that Cooley's claim is without merit.

         Criminal defendants have a right under the Sixth Amendment of the United States Constitution to the assistance of counsel during all critical stages of the criminal justice process. Iowa v Tovar, 541 U.S. 77, 80-81, 124 S.Ct. 1379, 1383, 158 L.Ed.2d 209 (2004). Due to the technical skill that a criminal trial demands, it is undeniable that in most criminal prosecutions “defendants could better defend with counsel's guidance than by their own unskilled efforts.” Faretta v. California, 422 U.S. 806, 834, 95 S.Ct. 2525, 2540, 45 L.Ed.2d 562 (1975). However, the defendant “must be free personally to decide whether in his particular case counsel is to his advantage.” Id. at 834, 95 S.Ct. at 2541. A defendant may waive his right to counsel and represent himself “so long as his choice to do so is made voluntarily and knowingly, with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” Jones v. Walker, 540 F.3d 1277, 1287-88 (11th Cir. 2008)(internal citations and quotation marks omitted).

         The Court in Jones noted that the burden of proof relating to Sixth Amendment waiver of counsel claims shifts to the petitioner when the petitioner is pursuing such a claim in a habeas petition. Jones, 540 F.3d at 1292. When a petitioner seeks relief by the “extraordinary remedy of habeas corpus”, the burden shifts to the petitioner to establish that he did not “competently and intelligently waive his constitutional right to assistance of Counsel.” Id. (citations omitted). To meet that burden, a petitioner is required to point to evidence in the record from which a trier of fact could reasonably conclude that the petitioner did not understand the dangers of self-representation at the time that he waived his right to counsel. Id.

         Cooley does not point to any such evidence in the instant case. Indeed, a review of the trial record reflects that the trial court took great care to ensure that Cooley fully understood the dangers of self-representation. The transcript reflects that following the examination of the victim, and after the jury had been excused from the courtroom, Cooley expressed his dissatisfaction with his counsel, and repeatedly stated that he wanted to waive counsel, and he wanted to represent himself. Doc. 42-2 at 212-219). The Court initially denied Cooley's request and then took a recess to carefully consider the request. (Doc. 213-221). Following the recess, outside the presence of the jury, the Court conducted the following colloquy with Cooley regarding his request to waive counsel:

“THE COURT: [] Mr. Cooley, the Court has during the recess taken a look at other matters involving your case. And I need to go over a few things with you. And we've already gone over some of it already, but I'll go over it with you again and see if the Court believes you are in a position to represent yourself or not.
You understand that the Court thinks it's a bad idea for you to represent yourself; do ...

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