United States District Court, N.D. Alabama, Northeastern Division
MADELINE HUGHES HAIKALA UNITED STATES DISTRICT JUDGE
Lemuel Leavord Gray seeks habeas relief pursuant to 28 U.S.C.
§ 2254. (Doc. 1). Mr. Gray challenges his state court
conviction and the life sentence he received for unlawfully
breaking and entering a vehicle in violation of Alabama Code
§ 13A-8-11. (Doc. 1, p. 2). The Court denies the
petition because Mr. Gray's claims are either unexhausted
and procedurally defaulted or meritless.
FACTS AND PROCEDURAL HISTORY
16, 2012, a jury found Mr. Gray guilty of breaking and
entering, and the state trial court sentenced him on June 28,
2012. (Doc. 8-1). Based on four prior convictions, the
sentencing court applied Alabama's Habitual Felony
Offender Act, Ala. Code § 13A-5-9, and imposed a life
sentence. (Doc. 8-5, p. 21). On July 22, 2012, Mr. Gray filed
a direct appeal. (Doc. 8-6, p. 10). Mr. Gray's appointed
appellate counsel filed a brief indicating that, despite
thoroughly and conscientiously searching the record, he could
find no reversible error. (Doc. 8-9, p. 9). This is known as
an “Anders brief, ” pursuant to
Anders v. California, 386 U.S. 738 (1967). The
Anders brief summarized the evidence and proceedings
and discussed objections resolved in favor of the State of
Alabama at trial. Those objections pertained to unsuccessful
motions to suppress evidence and jury selection. The
Anders brief did not provide a detailed discussion
of other objections or potential grounds for appeal. (Doc.
8-9, pp. 4-9). Mr. Gray's appointed appellate counsel
ultimately withdrew. (Doc. 8-9, pp. 12-13; see also
Doc. 8-10, p. 2).
the withdrawal of appellate counsel, Mr. Gray pursued his
direct appeal pro se and presented two arguments for
relief: (1) the denial of effective assistance of trial
counsel; and (2) the State's failure to prove the
elements of the offense. Mr. Gray's ineffective
assistance argument is based on his contention that trial
counsel failed to: (1) move for a new trial; (2) request a
jury charge on lesser included offenses; (3) challenge jurors
who had been victims of the charged offense; (4) generally
defend Mr. Gray's right to a trial by jury; (5) object to
hearsay evidence; (6) follow through on an order requiring
the prosecution to disclose any deals with Mr. Gray's
co-defendant; and (7) raise constitutional challenges to an
improper search and seizure. (Exhibit A, pp.
2-3). Mr. Gray's challenge regarding the
sufficiency of the evidence is premised on his assertions
that: (1) he was never seen with stolen property; (2) he was
at work, not at the scene of the crime; (3) he did not commit
the crime and was, at most, an accessory after the fact; (4)
the sentencing court unlawfully admitted hearsay evidence
against him; and (5) the sentencing court improperly
instructed the jury on complicity theories of criminal
liability. (Ex. A, pp. 3-5).
Alabama Court of Criminal Appeals affirmed Mr. Gray's
conviction and sentence, concluding that “[a]fter
thoroughly reviewing the record in this case and Gray's
pro se issues, this Court has not found any arguable
issues.” (Doc. 8-10, p. 2). Mr. Gray applied for
rehearing; the Court of Criminal Appeals denied the
application. (Doc. 8-11). On August 16, 2013, the Alabama Supreme
Court denied Mr. Gray's petition for a writ of certiorari
and issued a certificate of judgment. (Doc. 8-12; Doc. 8-13).
September 23, 2013, Mr. Gray filed a state court petition
seeking relief from his conviction and sentence pursuant to
Rule 32 of the Alabama Rules of Criminal Procedure. (Doc.
8-16, p. 8). The sentencing court denied the Rule 32 petition
and denied Mr. Gray's post-judgment motion. (Doc. 8-17,
pp. 8-15). Mr. Gray appealed, and the Alabama Court of
Criminal Appeals affirmed and overruled his application for
rehearing. (Doc. 8-17, p. 6; Doc. 8-19; Doc. 8-20; Doc.
8-21). Mr. Gray filed a petition for writ of certiorari in
the Alabama Supreme Court. (Doc. 10, pp. 15-18). The Alabama
Supreme Court struck Mr. Gray's petition for writ of
certiorari for failure to comply with Rule 39(d) of the
Alabama Rules of Appellate Procedure. On May 28, 2014, the
Court of Criminal Appeals issued a certificate of judgment as
to the Rule 32 petition. (Doc. 8-22; Doc. 8-23).
Gray filed his federal habeas petition on June 23, 2014,
seeking federal habeas relief on the following grounds: (1)
denial of his Sixth Amendment right to counsel on direct
appeal due to the Court of Criminal Appeals' failure to
appoint counsel after his initial appellate counsel withdrew;
(2) denial of his Sixth Amendment right to counsel on direct
appeal because the Anders brief failed to address
the ineffective assistance of trial counsel; (3) denial of
his right to trial by jury because the state failed to prove
the elements of the offense; (4) violation of due process due
to the state's failure to comply with the requirements of
Brady v. Maryland; (5) denial of due process
stemming from the sentencing court's failure to instruct
the jury as to a lesser included offense; and (6) denial of
his right to counsel in the instant § 2254 petition.
(Doc. 1, pp. 7-15).
Exhaustion and Procedural Default
prisoner generally is ineligible for federal habeas relief
unless he has exhausted the remedies available in the courts
of the state of conviction. See 28 U.S.C. §
2254(b)(1)(A); Kelley v. Sec'y for Dept. of
Corr., 377 F.3d 1317, 1343-44 (11th Cir. 2004). A state
prisoner must pursue a federal constitutional or statutory
challenge to his conviction or sentence through one complete
round of the state's trial and appellate review process,
either on direct appeal or in state post-conviction
proceedings, before asking a federal court to hear and
resolve the challenge. O'Sullivan v. Boerckel,
526 U.S. 838, 845 (1999); Mauk v. Lanier, 484 F.3d
1352, 1357 (11th Cir. 2007). When a petitioner has not
exhausted his constitutional challenge in state court, and
the time for presenting the claim there has expired, the
claim is procedurally defaulted, and a federal court
generally may not consider the ground for habeas relief.
See Coleman v. Thompson, 501 U.S. 722, 735 n.1
(1991); McNair v. Campbell, 416 F.3d 1291, 1305
(11th Cir. 2005).
exhaust a federal challenge in state court, a state court
defendant must identify the federal law basis for the
challenge to the state conviction or sentence. Ogle v.
Johnson, 488 F.3d 1364, 1369 (11th Cir. 2007). “To
‘fairly present' a claim” in state court, a
petitioner does not have to “cite ‘book and verse
on the federal constitution.'” Lucas v.
Sec'y, Dep't of Corr., 682 F.3d 1342, 1352 (11th
Cir. 2012) (quoting Picard v. Connor, 404 U.S. 270,
278 (1971)). But the state court defendant must make the
state court aware of the federal challenge.
A petitioner does not “fairly present” a claim to
the state court “if that court must read beyond a
petition or a brief (or a similar document) that does not
alert it to the presence of a federal claim in order to find
material, such as a lower court opinion in the case, that
does so.” Baldwin [v. Reese, 541 U.S.
27, 32 (2004)]. In other words, “to exhaust state
remedies fully the petition must make the state court aware
that the claims asserted present federal constitutional
issues.” Jimenez v. Fla. Dep't of Corr.,
481 F.3d 1337, 1342 (11th Cir. 2007) (quoting Snowden v.
Singletary, 135 F.3d 732, 735 (11th Cir. 1998))
(concluding that the petitioner's claims were raised
where the petitioner had provided enough information about
the claims (and citations to Supreme Court cases) to notify
the state court that the challenges were being made on both
state and federal grounds.
in the process of exhausting state remedies, a state criminal
defendant must comply with all “independent and
adequate” state procedural rules. See Wainwright v.
Sykes, 433 U.S. 72, 86-87 (1977); Bailey v.
Nagle, 172 F.3d 1299, 1302-03 (11th Cir. 1999); §
2254(b), (c). Failure to properly present claims in state
court leads to procedural default on those claims in federal
court. See O'Sullivan, 526 U.S. at 848.
To determine whether a state court's procedural ruling
constitutes an independent and adequate state rule of
decision, this court has set forth the following three-part
test: (1) “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;” (2) the
state court's decision must rest solidly on state law
grounds, and may not be “intertwined with an
interpretation of federal law;” and (3) the state
procedural rule must not be applied in an arbitrary or
unprecedented fashion. Judd v. Haley, 250 F.3d 1308,
1313 (11th Cir. 2001).
Mason v. Allen, 605 F.3d 1114, 1119-20 (11th Cir.
2010) (alterations incorporated); see also Ferguson v.
Sec'y for Dep't of Corr., 580 F.3d 1183, ...