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Capocci v. Stewart

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

January 25, 2017

CHRISTOPHER PAUL CAPOCCI, Petitioner,
v.
CYNTHIA D. STEWART, Respondent.

          ORDER

          WILLIAM H. STEELE CHIEF UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on petitioner Christopher Paul Capocci's Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (doc. 1). Magistrate Judge Milling entered a Report and Recommendation (doc. 12) recommending that the § 2254 Petition be dismissed, to which Capocci has filed Objections (doc. 13). The undersigned now undertakes de novo review of those portions of the Recommendation to which objection is made, pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b)(3), Fed.R.Civ.P.

         I. Background.

         Following a jury trial, petitioner, Christopher Paul Capocci, was convicted in Alabama state court of one count of first-degree rape, in violation of Alabama Code § 13A-6-61(a)(3), and one count of first-degree sexual abuse, in violation of Alabama Code § 13A-6-66(a)(1). At sentencing, Capocci was found to be a habitual felony offender and was sentenced to two concurrent terms of life imprisonment. On direct appeal, Capocci's appointed appellate counsel (who was different than his trial counsel) filed an Anders brief. In light of this development, the Alabama Court of Criminal Appeals afforded Capocci an opportunity to raise any pro se issues he wished to be heard; however, Capocci elected not to respond. The Alabama Court of Criminal Appeals ultimately affirmed his convictions and sentences.

         In his Rule 32 petition filed in Baldwin County Circuit Court after the conclusion of his direct appeals, Capocci asserted ten claims of ineffective assistance of his trial counsel. Claim 6, as described by the Alabama Court of Criminal Appeals, was as follows:

“Counsel failed to accurately communicate the terms of the plea deal offered by the State to [Capocci], and that counsel failed to tell him the details of the offer made by the State until after the deadline imposed by the trial court had expired. [Capocci] further alleged that had he been told the exact terms of the State's offer, he would have accepted the plea agreement.”

(Doc. 1, Exh. B, at 2.) The Alabama Court of Criminal Appeals found that Claim 6 was procedurally barred by operation of Rule 32.2(d), which mandates that all claims of ineffective assistance of counsel “must be raised as soon as practicable, either at trial, on direct appeal, or in the first Rule 32 petition, whichever is applicable.” Rule 32.2(d), Ala.R.Crim.P. The appeals court reasoned that the applicable time frame for Capocci to raise Claim 6 for Rule 32.2(d) purposes was in a motion for new trial. As the Court of Criminal Appeals explained:

“[Capocci] had 30 days from his sentencing on November 21, 2013, to file a motion for new trial pursuant to Rule 24.1(b), Ala.R.Crim.P. His appellate counsel was appointed on December 9, 2013, well within that 30-day window. No motion for new trial was filed. Had [Capocci] wished to raise the issues alleged in Claim[] (6) …, he could have done so by informing his appellate counsel of his allegations against trial counsel and appellate counsel could have filed a motion for new trial prior to the expiration of the 30-day period.
* * *
“Thus claim[] (6) … [is] precluded by Rule 32.2(d), as pleaded by the State, because [Capocci] could have discussed [it] with his new counsel and could have practicably raised [it] in a motion for new trial.”

(Doc. 1, Exh. B, at 10.)

         In his ensuing § 2254 petition filed in federal court, Capocci raises a single claim of ineffective assistance of counsel, predicated on trial counsel's failure “to communicate anyway [sic] with the Petitioner prior to the expiration of the time allowed by the court for the petitioner to accept the plea bargain offered by the State.” (Doc. 1, at 4.) The petition alleges, “Had the Petitioner been fully informed of the plea offer by the State the Petitioner would have taken the plea offer. … The Petitioners [sic] trial counsel's performance [was] below the prevailing professional norms considering all circumstances and as a result the Petitioner was prejudiced and was denied his constitutional right to effective assistance of counsel a [sic] Guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution.” (Id. at 5.)

         In a Report and Recommendation (doc. 12) entered on December 30, 2016, the Magistrate Judge recommended that Capocci's habeas petition be dismissed as procedurally barred. The reasoning undergirding that recommendation was as follows: (i) the Alabama Court of Criminal Appeals' adjudication of the ineffective assistance claim rests on an independent and adequate state-law ground, namely Rule 32.2(d); (ii) the state appellate court did not apply Rule 32.2(d) in a manifestly unfair or arbitrary manner, inasmuch as Capocci or his appellate counsel had the opportunity to raise the issue in a motion for new trial or on direct appeal, but did not do so; (iii) Capocci failed to meet the “cause” prong of the cause and prejudice test for overcoming the procedural default, he asserted no claim of ineffective assistance of appellate counsel in his § 2254 petition and, even if he had done so, such claim was never exhausted in the state courts and therefore could not be considered on federal habeas review; and (iv) the Supreme Court's ruling in Trevino v. Taylor, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013), does not support a finding of “cause” to excuse the procedural default here because it does not appear that the Trevino rules apply at all and, even if they do, Capocci failed to present a claim of ineffective assistance of appellate counsel to the state courts. On the basis of these determinations, the Report and Recommendation recommends that Capocci's § 2254 petition be dismissed as procedurally barred, and that he be granted neither a Certificate of Appealability nor leave to proceed in forma pauperis on appeal.

         II. ...


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