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Odom v. Jones

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

February 2, 2017

TIMOTHY ODOM (AIS# 278996), Plaintiff,
v.
KARLA JONES, Defendant.

          REPORT AND RECOMMENDATION

          SONJA F. BIVINS UNITED STATES MAGISTRATE JUDGE

         Petitioner Timothy Odom ("Odom"), an Alabama prisoner proceeding pro se, has filed a petition seeking habeas corpus relief under 28 U.S.C. § 2254 (Doc. 1). The petition, which has been fully briefed and is ripe for adjudication, has been referred to the undersigned Magistrate Judge for appropriate action pursuant to 28 U.S.C. § 636(b)(1)(B) and General Local Rule 72(a)(2)(R). Based upon a thorough review of the petition, the briefs and supporting materials, the undersigned finds that an evidentiary hearing is not warranted[1] and that the petition is due to be denied. Accordingly, it is recommended that Odom's habeas petition be denied in its entirety and that judgment be entered in favor of Respondent and against Petitioner, Timothy Odom, and that if Odom seeks the issuance of a certificate of appealabilty, his request be denied, along with any request to appeal in forma pauperis.

         I. FINDINGS OF FACT

         Odom was charged with one count of first-degree rape, one count of first-degree sodomy, and one count of sexual abuse of a child less than twelve years of age. T.O. v. State of Alabama, CR-10-1889 (Ala.Crim.App.2013);(Doc. 7-10 at 1-3). The jury returned guilty verdicts against Odom on all three counts. Id. The trial court sentenced Odom to consecutive terms of life imprisonment for the first-degree rape and first-degree sodomy convictions and 20 years imprisonment for the sexual abuse conviction. Id.

         The Alabama Court of Criminal Appeals found the facts of this case to be as follows:[2]

C.C., who was 16 years old at the time of trial, was 6 years old when her mother, K.O., married T.O. in 2001. At that time, C.C. lived with her father, R.C., and visited K.O. every other weekend. When C.C. was seven years old, her mother and T.O. lived in what C.C. identified as the "Alco house." During this time, T.O. began touching C.C.'s "private parts, " which C.C. identified as "[her] chest and between [her] legs." (R. 198). C.C. testified that these incidents occurred on the couch in the living room when no one else was around. She testified that similar instances continued to occur after her mother and T.O. moved to a house on "Sheffield Lane" in East Brewton and after they moved to the "Brewington Apartments." According to K.O., C.C. "got to where she didn't want to come [for her weekend visits with K.O. at the Alco house], " and her resistance to spending weekends at K.O.'s house "really escalated when [they] moved to Sheffield Lane." (R. 286.) R.C. also testified that he noticed a gradual change in C.C.'s behavior after her weekend visits with K.O.; he said that she would often be upset and even distraught when she returned from the visits and that she often did not want to go to K.O.'s for the visits. R.C. stated that C.C. became increasingly angry and aggressive and began "lashing out."
C.C. testified that she had her own bedroom when she visited her mother and T.O. at the Brewington Apartments and that during her visits there T.O.'s sexual abuse escalated to rape and sodomy.
C.C. testified that K.O. and T.O. moved to "Mayo Street" after living at the Brewington Apartments and that the rape, sodomy, and sexual abuse continued at the Mayo Street residence. C.C. turned 12 years old while K.O. and T.O. lived at that residence.
In March 2008, K.O. and T.O. separated. In the summer of 2008, when C.C. was 13, she told K.O. about the rape, sodomy, and sexual abuse. K.O. called the police, and the police came to her house and made a report. The police instructed K.O. to take C.C. to the Child Advocacy Center.
After being interviewed at the Child Advocacy Center, C.C. was taken to the Department of Human Resources (“DHR”) and was later examined by Dr. Marsh Raulerson, a pediatrician with training in performing sexual-assault examinations on children. Dr. Raulerson examined C.C on August 5, 2008. Dr. Raulerson noted that C.C. “had a tear through her hymen at the six o'clock position that was a totally disrupted hymen.” (R. 358-59.) The tear was “old, ” had not occurred within “the last couple of weeks, ” and did not show “signs of recent trauma.” (R. 359.) Dr. Raulerson testified that the extent of the hymenal tear was “a positive finding for sexual abuse in a child, ” that the type of injury C.C. had sustained was “consistent with penetration . . . by a male penis, ” and that she had never seen a hymenal tear like C.C.'s caused by anything “other than sexual abuse.” (R. 362, 364, 366) Dr. Raulerson testified that behavior changes are common in children who suffer from all types of abuse and that for a variety of reasons - including guilt and fear - - children frequently delay reporting their abuse. (R. 360-61, 363.)
T.O. testified in his own defense and denied having ever had any inappropriate sexual contact with C.C. Seven other witnesses testified on T.O.'s behalf; their testimony was offered in support of T.O.'s character and to impeach testimony given by the State's witnesses.

Id. (Footnotes omitted).

         Odom sought a new trial based primarily on claims of insufficient evidence, juror misconduct, and the recanting of the victim's testimony. (Doc. 7-3 at 41). Following a hearing at which various witnesses testified, the trial court, on August 5, 2011, denied the motion. (Doc. 7-3 at 55). Odom then filed a direct appeal with the Alabama Circuit Court of Criminal Appeals. (Doc. 7- 8). He raised the following claims: (1) the sufficiency and weight of the evidence were insufficient to sustain his convictions, (2) his counsel was ineffective because he failed to call additional witnesses, failed to introduce Odom's medical records, and failed to make certain objections during trial, (3) juror misconduct prejudiced the verdict, (4) the trial court erred in refusing to give a requested jury charge, and (5) the victim's testimony was perjured. (Doc. 7-8). The Alabama Court of Criminal Appeals affirmed Odom's convictions in an unpublished memorandum opinion on February 1, 2013. (Doc. 7-10). Following the denial of Odom's application for rehearing (doc. 7-12 at 32), he sought certiorari review before the Alabama Supreme Court on two grounds: 1)ineffective assistance of counsel[3]; and 2)juror misconduct. (Doc. 7-12). On May 10, 2013, the Alabama Supreme Court denied certiorari and a certificate of judgment issued. (Doc. 7-1 at 2).

         On March 16, 2014, [4] Odom filed the instant petition for a writ of habeas corpus setting forth three grounds for habeas relief: (1) Insufficient Evidence to Support the Verdict, (2) Ineffective Assistance of Counsel, and (3) Juror Misconduct Prejudicing Verdict. (Doc. 1). The Respondent filed a response in opposition (doc. 7), and Odom filed a reply (Doc. 8). Nearly a year later, Odom filed a supplement to his petition, and sought to raise, for the first time, new claims. (Doc 12). This action is now ripe for adjudication.

         II. STANDARD OF REVIEW FOR HABEAS CORPUS RELIEF

         This court may “entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). "§ 2254(d)(1) places a new constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court." Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Section 2254(d) provides that “ habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim . . . resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law . . . or resulted in a decision that 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)(1), (2).

A state-court decision is contrary to the Supreme Court's clearly established precedent (1) if the state court applies a rule that contradicts the governing law as set forth in Supreme Court case law, or (2) if the state court confronts a set of facts that are materially indistinguishable from those in a decision of the Supreme Court and nevertheless arrives at a result different from Supreme Court precedent. See Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1519-20, 146 L.Ed.2d 389 (2000).
A state court decision involves an unreasonable application of Supreme Court precedent "if the state court identifies the correct governing legal rule from [Supreme Court] cases but unreasonably applies it to the facts of the particular state prisoner's case." Williams, 120 S.Ct. at 1520. In addition, a state court decision involves an unreasonable application of Supreme Court precedent "if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id.

Bottoson v. Moore, 234 F.3d 526, 531 (11th Cir. 2000). Moreover, the burden of rebutting a presumption of correctness of the state courts' decision by clear and convincing evidence is on the petitioner. 28 U.S.C. § 2254(e); Hill v. Linahan, 697 F.2d. 1032, 1036 (11th Cir. 1983) (“The burden of proof in a habeas proceeding is always on the petitioner.”) (citing Henson v. Estelle, 641 F.2d 250, 253 (5th Cir. 1981)).

         With the grounds of review established, the court will now address Odom's claims.

         III. DISCUSSION

         A. Issues raised in original petition

         1. Insufficient Evidence to Support the Verdict.

         Odom argues in his original petition that he is entitled to relief under 28 U.S.C. § 2254 because the evidence was not sufficient to support his convictions. (Doc. 1 at 4, 17). Respondent asserts, and the record confirms, that this claim is procedurally defaulted because Odom failed to properly exhaust the claim. While Odom presented this claim to the Alabama Court of Criminal Appeals, [5] he did not raise it in his petition for certiorari review before the Alabama Supreme Court. (Doc. 7 at 6-7). Thus, the claim is procedurally defaulted. See O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999)(“[S]tate prisoners must 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, ” including review by the state's court of last resort, even if review in that court is discretionary.). To obtain habeas relief, generally, a state prisoner must exhaust available state remedies prior to seeking federal habeas corpus relief. See 28 U.S.C. § 2254(b)(1); Woodford v. Ngo, 548 U.S. 81, 92, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). The Eleventh Circuit has succinctly stated the rule as follows:

Generally, a habeas corpus petitioner cannot raise a claim in federal court if he did not first exhaust the claim in state court. 28 U.S.C. § 2254(b)(1)(A); Kelley v. Sec'y for the Dep't of Corr., 377 F.3d 1317, 1343 (11th Cir.2004). A federal claim is exhausted only if fairly presented to the state courts. McNair v. Campbell, 416 F.3d 1291, 1302 (11th Cir.2005) (citing Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971)). A petitioner has not fairly presented his claim to the state court if such claim is presented for the first and only time in a procedural context where the merits are not considered. Castille v. Peoples, 489 U.S. 346, 351, 109 S.Ct. 1056, 1060, 103 L.Ed.2d 380 (1989).

Cargile v. Sec'y Dep't of Corrs., 349 F. App'x 505, 507 (11th Cir. 2009). In Alabama, exhaustion of a claim requires raising the claim through the state courts to the Supreme Court of Alabama. See Dill v. Holt, 371 F.3d 1301, 1303 (11th Cir. 2004)("Under Alabama law, 'one complete round' of review [] includes: (1) filing a petition for certiorari in state circuit court; (2) appealing the denial of that petition to the Alabama Court of Criminal Appeals; (3) petitioning the Alabama Court of Criminal Appeals for rehearing; and (4) seeking discretionary review in the Alabama Supreme Court. . ."). Failure to exhaust state court remedies generally results in the "preclusion of review in the federal court." Woodford v. Ngo, 458 U.S. 81, 92, 126 S.Ct. 2378, 165 L.Ed.2d. 368 (2006) ("Thus, if state-court remedies are no longer available because the prisoner failed to comply with the deadline for seeking state-court review or for taking an appeal . . . the petitioner procedurally defaulted those claims [and] generally is barred from asserting those claims in a federal habeas proceeding.").

         Here, Odom failed to exhaust this claim because he did not present it in his certiorari petition filed with the Alabama Supreme Court. And, no state remedy remains by which Odom may now present his unexhausted claim because any attempt to exhaust the claim in state court would be barred by applicable state procedural rules. In short, it is too late for Odom to file another petition for writ of certiorari presenting this claim to the Alabama Supreme Court.

         This court may a reach a procedurally defaulted claim only in two narrow circumstances:

First, a petitioner may obtain federal review of a procedurally defaulted claim if he can show both “cause” for the default and actual “prejudice” resulting from the default. See Murray v. Carrier, 477 U.S. 478, 485, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); [Wainwright v.]Sykes, 433 U.S. [72, ] 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 [(1977)]. . .Second, a federal court may also grant a habeas petition on a procedurally defaulted claim, without a showing of cause or prejudice, to correct a fundamental miscarriage of justice. Murray, 477 U.S. at 495-96. A “fundamental miscarriage of justice” occurs in an extraordinary case, where a constitutional violation has resulted in the conviction of someone who is actually innocent. Id.

Henderson v. Campbell, 353 F.3d 880, 892 (llth Cir. 2003).

         Odom asserts that he can overcome the procedural default of this claim because he is actually innocent of the charges for which he was convicted. (Doc. 7 at 1-3). Aside from his conclusory assertions that he is actually innocent, Odom has failed to come forth with new evidence that establishes “it is more likely than not that no reasonable juror would have found [the] petitioner guilty beyond a reasonable doubt.” Schlup v. Delo, 513 U.S. 298, 327115 S.Ct. 851, 130 L.Ed.2d 808 (1995). Consequently, his claim that the evidence was not sufficient to sustain his convictions is procedurally defaulted and thus foreclosed from federal habeas review[6].

         2. Ineffective Assistance of Trial Counsel

         The Sixth Amendment requires that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense, ” U.S. Const. Amend. VI, and that counsel must also be effective. See Strickland v. Washington, 466 U.S. 668, 686 ...


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