United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
F. BIVINS UNITED STATES MAGISTRATE JUDGE.
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.
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).
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.
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.).
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).
filed the instant petition for habeas corpus relief on March
28, 2014. (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.
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
Harris v. Reed, 489 U.S. at 264 n.10.
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.
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.
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 .
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).
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.
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
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.
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
“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 ...