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Gray v. Estes

United States District Court, N.D. Alabama, Northeastern Division

September 26, 2017

DEWAYNE ESTES, Warden, et al., Respondents.



         Petitioner 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).[1] The Court denies the petition because Mr. Gray's claims are either unexhausted and procedurally defaulted or meritless.


         On May 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).

         Following 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).[2] 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).

         The 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).[3] 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).

         On 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).

         Mr. 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).

         II. ANALYSIS

         A. Exhaustion and Procedural Default

         A state 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).

         To 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.


         Additionally, 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, ...

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