United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
F. BIVINS UNITED STATES MAGISTRATE JUDGE
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 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.
FINDINGS OF FACT
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.
Alabama Court of Criminal Appeals found the facts of this
case to be as follows:
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
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).
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; 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).
March 16, 2014,  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.
STANDARD OF REVIEW FOR HABEAS CORPUS RELIEF
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)).
the grounds of review established, the court will now address
Issues raised in original petition
Insufficient Evidence to Support the Verdict.
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,  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
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.
court may a reach a procedurally defaulted claim only in two
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.
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.
Ineffective Assistance of Trial Counsel
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