United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
F. BIVINS, UNITED STATES MAGISTRATE JUDGE
Lee Watts, a state inmate in the custody of Respondent, has
petitioned this Court for federal habeas corpus relief
pursuant to 28 U.S.C. § 2254. (Doc. 4). The petition has
been referred to the undersigned Magistrate Judge for a
report and recommendation pursuant to 28 U.S.C. §
636(b)(1)(B), S.D. Ala. GenLR 72(a)(2)(R), and Rule 8 of the
Rules Governing Section 2254 Cases. The undersigned has
conducted a careful review of the record and finds that no
evidentiary hearing is required to resolve this case.
Kelley v. Sec'y for the Dep't of Corr., 377
F.3d 1317 (11th Cir. 2004). Following a complete review of
this action, the undersigned recommends that the petition be
dismissed as procedurally barred.
October 18, 2012, Watts pled guilty to second-degree
receiving stolen property in Mobile County Circuit Court, and
was sentenced to fifteen years in prison. (Doc. 16-1 at
12-16). The Court suspended the sentence, and placed Watts on
probation for three years. (Id.). On October 2,
2014, the Circuit Court of Mobile County revoked Watts'
probation after he was charged with committing several new
criminal offenses. (Doc. 16-2 at 9). Watts did not file a
direct appeal of either his 2012 conviction and sentence or
his 2014 revocation. (Doc. 4 at 3). Watts attempted to file a
Rule 32 petition; however, it appears that he did not seek
in forma pauperis status or pay the required filing
fee, so the Circuit Court Clerk's office returned the
petition to him and advised him that he was required to file
a proper In Forma Pauperis Declaration or pay the $260.00
filing fee. (Doc. 16-3). There is nothing in the record
evidencing that Watts ever paid the filing fee or that he
filed a proper In Forma Pauperis Declaration.
filed the instant § 2254 petition on March 3,
2015.(Doc. 4). In his petition, he attacks his
2012 conviction on the following grounds: (1) the conviction
is unlawful because of a “statement confession”
from Terry Whitney dated December 25, 2013; (2) the police
illegally searched the “premises” without a
search warrant; (3) his trial counsel was ineffective because
counsel “refused to fight” the case, failed to
subpoena witnesses, and coerced Watts into pleading guilty;
and (4) the trial court failed to sign the order of probation
and the guilty plea form. (Id.).
Respondent's brief in opposition to Watts' petition,
Respondent asserts that Watts' petition is untimely,
that he has not exhausted his claims in state court, and has
no further state court remedies available. (Doc. 16 at 6).
Therefore, his claims are procedurally defaulted from federal
habeas review. (Id.). For the reasons set forth
herein, the undersigned recommends that the Watts'
petition be dismissed because it is procedurally defaulted.
2254(b)(1) provides that a prisoner in state custody shall
not be granted a writ of habeas corpus unless the prisoner
“has exhausted the remedies available in the courts of
the State.” A habeas claim is not exhausted so long as
a petitioner “has a right under the law of the state to
raise, by any available procedure, the question
presented.” 28 U.S.C. § 2254(c). “[T]he
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.” O'Sullivan
v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 144
L.Ed.2d 1 (1999). More precisely, “[b]ecause the
exhaustion doctrine is designed to give the state courts a
full and fair opportunity to resolve federal constitutional
claims before those claims are presented to the federal
courts, . . . state 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.” Id., 526 U.S. at
845; see also Kelley, 377 F.3d at 1344 (“The
petitioner must present his claims to the state courts such
that they are permitted the ‘opportunity to apply
controlling legal principles to the facts bearing upon (his)
constitutional claim.'”); cf. Preiser v.
Rodriguez, 411 U.S. 475, 477, 93 S.Ct. 1827, 36 L.Ed.2d
439 (1973) (“If . . . habeas corpus is the exclusive
federal remedy . . ., then a [petitioner] cannot seek the
intervention of a federal court until he has first sought and
been denied relief in the state courts, if a state remedy is
available and adequate.”).
did not file an appeal from his 2012 guilty plea conviction
and sentence, nor did he appeal from the 2014 revocation of
his probation. (Doc. 4 at 2; Doc. 16-2). As noted
supra, it appears that Watts attempted to file a
Rule 32 petition; however, his petition was returned by the
Circuit Court Clerk's office because he did not include
an in forma pauperis declaration or filing fee.
(Doc. 16-3). There is nothing before the Court that indicates
that Watts corrected the deficiency or took any other steps
to pursue a Rule 32 petition. Accordingly, Watts has not
exhausted any of the claims raised in his petition in state
court; thus, a writ of habeas corpus should not be granted
under § 2254(b)(1).
at this juncture, there are no further remedies available in
the state court. None of Watts' claims are
jurisdictional, and his failure to file an appeal precludes
state collateral review of the claims. Ala. R. Crim. P.
32.2(a)(5) (A petitioner “will not be given relief
under this rule based upon any ground . . . [w]hich could
have been but was not raised on appeal . . .”). In
other words, Watts' failure to appeal either his
conviction or revocation means that he would be unable to now
file a Rule 32 collateral attack in state court; thus, his
claims are procedurally defaulted. See Coleman v.
Thompson, 501 U.S. 722, 735 n.1 (1991) (citations
omitted) (noting that, if a petitioner fails to exhaust state
remedies “and the court to which petitioner would be
required to present his claims in order to meet the
exhaustion requirement would now find the claims procedurally
barred[, ]” there is procedural default for the
purposes of federal habeas); Henderson v. Campbell,
353 F.3d 880, 891 (11th Cir. 2003)(stating that when a
petitioner fails to properly exhaust claims in state court
and is barred from raising claims in state court by
applicable procedural rules, such claims are procedurally
is a safety valve for procedurally defaulted claims: federal
district courts may consider them on the merits if the
petitioner can show either (1) cause for the procedural
default and actual prejudice resulting from the alleged
constitutional violation; see Ward v. Hall, 592 F.3d
1144, 1157 (11th Cir. 2010) (citing Wainwright v.
Sykes, 433 U.S. 72, 84-85, 97 S.Ct. 2497, 53 L.Ed.2d 594
(1977)) or (2) that failure to consider the merits would be a
fundamental miscarriage of justice. Hart v. Dunn,
2015 U.S. Dist. LEXIS 149736, 2015 WL 6755304 at *6 (S.D.
Ala. Nov. 4, 2015). Watts has made no such showing in the
instant case. The only explanation given for his failure to
pursue an appeal or Rule 32 motion is “lawyer quit me
lack of money.” (Doc. 4 at 5). Watts does not elaborate
on this statement, or provide any evidence that he attempted
to file an appeal pro se. The only other notation
regarding any proceeding is in reference to his Rule 32
petition, which he said was “never responded to by
court or District Attorney.” (Doc. 4 at 4). As noted
above, although Watts was advised that he needed to file an
in forma pauperis declaration or pay the filing fee
in conjunction with his Rule 32 petition, Watts does not
allege, and the record does not reflect, that he did so.
(Doc. 16-3). Accordingly, his brief, unsupported claims are
not sufficient to demonstrate that there is cause for his
failure to raise his claims in state court and prejudice.
has also failed to satisfy the miscarriage of justice
standard. The miscarriage of justice standard is directly
linked to actual innocence. Schlup v. Delo, 513 U.S.
298, 321, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). Actual
innocence is not an independent claim; rather, it is the
"gateway" through which a petitioner must pass
before a court may consider constitutional claims which are
defaulted. Id. at 315. This exception applies where
a petitioner establishes that "a constitutional
violation has probably resulted in the conviction of one who
is actually innocent.” Schlup v. Delo,
supra. "To establish actual innocence, [a
habeas petitioner] must demonstrate that . . . 'it is
more likely than not that no reasonable juror would have
convicted him.' Schlup, 513 U.S. 298, 327-328,
115 S.Ct. 851, 867-868, 130 L.Ed.2d 808 (1995). The standard
exacted by Schlup "is demanding and permits
review only in the '"extraordinary'"
case.” House v. Bell, 547 U.S. 518, 538, 126
S.Ct. 2064, 165 L.Ed.2d 1 (2006). Thus, "[i]n the usual
case the presumed guilt of a prisoner convicted in state
court counsels against federal review of defaulted
claims.” Id. at 537.
case, Watts seeks to utilize a statement that was allegedly
made by Terry Keith Whitney on December 25, 2013, presumably
to support a claim of actual innocence. (Doc. 4 at 14). In
the statement, Whitney alleges that he left the stolen
property at Watts' house without his knowledge. As a
preliminary matter, the undersigned notes that the statement
is not notarized or written under penalty of perjury.
Moreover, the statement does not include newly-discovered
evidence, as Watts was fully aware, at the time of his guilty
plea, of whether or not he had personal knowledge of the
stolen property; thus, the Whitney statement did not provide
Watts with any information that he did not possess at the
time of his guilty plea. When pleading guilty, Watts
acknowledged his guilt under oath in open court. He has
failed to present the sort of new, reliable evidence of
innocence sufficient to satisfying the stringent standard set
forth in Schlup. Consequently, his procedurally
defaulted claims are foreclosed from federal habeas review.