United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
WALLACE CAPEL, JR., CHIEF UNITED STATES MAGISTRATE JUDGE
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
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.
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.
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.
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.” 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
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)). 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).
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.
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. 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.
HABEAS PETITION AND RESPONDENTS' ARGUMENTS
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.
“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.
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.
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 ...