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Felton v. Jones

United States District Court, M.D. Alabama, Northern Division

February 2, 2018

MORRIS FELTON, #292689 Petitioner,
KENNETH JONES, et al., Respondents.



         Petitioner Morris Felton (“Felton”), an inmate of the Alabama Department of Corrections, filed this petition for habeas corpus relief pursuant to 28 U.S.C. § 2254, challenging his convictions and sentences in the Circuit Court for Crenshaw County, Alabama, for sexual abuse of a child under the age of 12 and first-degree sodomy. Doc. 1. The court recommends that the petition be denied and the case dismissed.


         Felton was indicted for first-degree sodomy, in violation of Alabama Code § 13A-6-63(a)(3) and sexual abuse of a child under the age of twelve, in violation of Alabama Code § 13A-6-69.1(a). Docs. 6-1 at 2-3, 6-6 at 1. The evidence at trial included, among other things, prior statements from the victim through testimony from the victim's teacher, the victim's school nurse, a medical doctor who performed a sexual abuse exam on the victim, and a Department of Human Resources investigator. The victim, A.B., also testified at trial. Docs. 6-1 at 118, 6-6 at 2-4.

         Before A.B. testified, the court instructed the jury, “She is a child; so I'm not going to give her an oath, of course, like I do those of age who understand an oath. I'm going to allow [the prosecutor] to address her about telling the truth, and so I hope that will be sufficient. And I will give you an instruction at the end of all the evidence about weighing testimony of witnesses. And just take into account she is a child witness in this case.” Doc. 6-2 at 100. At the time of trial, A.B. was in third grade, under the age of twelve, and she had an intellectual disability. Id. at 57, 101. A.B. told the prosecutor that she knew the difference between telling the truth and telling a lie, and she said she would tell the truth in response to the prosecutor's questions. Id. at 101-02. Defense counsel objected to the prosecutor's method-asking A.B. whether his tie was red or not-was adequate to determine whether A.B. knew the difference between truth and lies. Id. at 103. The trial court was satisfied that A.B. was qualified to testify. Id.

         The jury found Felton guilty of both charges. Doc. 6-3 at 7. The trial court sentenced Felton to 99 years in prison on the sodomy charge and 20 years on the sexual assault charge, to be served concurrently. Docs. 6-3 at 16-17, 6-6 at 1.

         Felton appealed, raising one issue that is relevant for this federal habeas proceeding. Doc. 6-4 at 5. Felton argued the trial “court erred in allowing testimonial evidence in as offered by employees of the Department of Human Resources and others as to the truthfulness of the victim's out of court statement.” Doc. 6-4 at 29 (capitalization altered). He summarized the argument stating, “[t]he State used the child to testify but because of her mental incapacity also elicited hearsay testimony from DHR witnesses and others (her teacher, the school nurse) which is clearly inadmissible under Code of Alabama 1975, 15-25-32.”[1] Id. Felton argued the prior statements of A.B., allowed through other witnesses, violated his rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution as set out in Crawford v. Washington, 541 U.S. 36 (2004). Doc. 6-4 at 35.

         The Alabama Court of Criminal Appeals disagreed with Morris and affirmed the convictions. Doc. 6-6. It recognized that in Crawford, the Supreme Court held “‘that, regardless of whether an out-of-court statement is deemed reliable by the trial court, an out-of-court statement by a witness that is testimonial is barred under the Sixth Amendment's Confrontation Clause, unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. Crawford v. Washington, 541 U.S. at 68.'” Doc. 6-6 at 5 (quoting Styron v. State, 34 So.3d 724, 730 (Ala.Crim.App.2009)).[2] The Court of Criminal Appeals identified what types of statements the United States Supreme Court considered to be “testimonial” and “nontestimonial” in the subsequent ruling, Davis v. Washington, 547 U.S. 813, 822 (2006). Doc. 6-6 at 5-6 (quoting Styron, 34 So.3d at 730-31, further quoting Davis, 547 U.S. at 822).

         The Court of Criminal Appeals then explained that, under Alabama Code § 15-25-32(1), a court may admit a statement made outside of court by a child under twelve if the child testifies at the proceeding or through certain other means, “‘and at the time of such testimony is subject to cross-examination about the out-of-court statements.'” Doc. 6-6 at 6 (quoting Styron, 34 So.3d at 731, further quoting Ala. Code § 15-25-32(1) (1975)). The Court of Criminal Appeals held that, in Felton's case, there was no Confrontation Clause error under Crawford because A.B. testified at trial and was subject to cross-examination. Doc. 6-6 at 6. It rejected Felton's reliance on T.P. v. State, 911 So.3d 1117 (Ala.Crim.App.2004), because, unlike Felton's case, the victim in T.P. did not testify at trial and was not subject to cross-examination. Doc. 6-6 at 6. The Court of Criminal Appeals went on to hold that even if the trial court erred in admitting A.B.'s statements to the DHR worker and physician, the error was harmless because their testimony was cumulative of A.B.'s statements admitted through her school teacher and school nurse. Doc. 6-6 at 6-7.

         Felton sought rehearing, reasserting substantially the same arguments he previously made, and adding, “the trial court erred in admitting the testimony because the victim had not previously testified.” Doc. 6-7 at 14. The Court of Criminal Appeals denied the request for rehearing, and the Alabama Supreme Court denied further review.[3] A certificate of judgment issued on February 13, 2015. Docs. 6-8, 6-9, 6-10, 6-11. Felton did not seek post-conviction relief under Alabama Rule of Criminal Procedure 32.


         Felton argues that his “conviction is in violation of his right to confrontation under the Sixth and Fourteenth Amendments to the United States Constitution.” Doc. 1 at 4. He argues that the Alabama state court decision was contrary to and involved an unreasonable application of clearly established Supreme Court law as set out in Crawford, or was an unreasonable determination of the facts. Doc. 1 at 4; Doc. 10 at 11; see 28 U.S.C. § 2254(d) (standard for federal habeas relief). Felton acknowledges that in Crawford, the Supreme Court noted that “when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.” Doc. 1 at 11; see Crawford, 541 U.S. at 59 n.9 (citing California v. Green, 399 U.S. 149, 162 (1970)). However, Felton argues, no oath was administered to A.B., and her statements about what happened “were wildly varying. Thus, Felton had no opportunity to fully and effectively cross examine her under oath with her being impressed of the seriousness of the matter with an understanding of the possibility of a penalty for perjury.” Doc. 1 at 11.

         Respondents “assume, but cannot be certain, ” that Felton raised his Confrontation Clause claim to the Alabama Supreme Court, thus exhausting his claim under O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) (“state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition”). Doc. 6 at 4. This court does not treat Respondents' statement as a waiver of the exhaustion requirement. See 28 U.S.C. § 2254(b)(3) (requiring an express waiver). Respondents admit that Felton's petition is timely. Id. at 5. Respondents argue there was no state court error under Crawford warranting § 2254 relief because the victim testified at trial and was subject to cross-examination. Id. at 7-8.

         This court entered an order inviting Felton to respond to the answer, and advising Felton of the constraints that 28 U.S.C. § 2254(d) places on federal courts to grant habeas relief, including procedural default of federal claims, as well as the ways to overcome default. Doc. 7.

         Felton responded. Doc. 10. In his response, Felton reiterates the same arguments he made in his initial petition, and he expands on his argument that A.B.'s testimony at trial is not dispositive of the issue whether the trial court erred in allowing testimony regarding A.B.'s out-of-court statements. Doc. 10 at 9-11. Felton argues that when the Alabama Court of Criminal Appeals held that admission of testimony by the DHR worker and the physician was harmless because it was cumulative of testimony by the school teacher and school nurse, the state court relied on a false premise that the testimony of the teacher and nurse were lawfully admitted. Id. at 11. Felton argues that all four of these witnesses improperly repeated ...

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