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Washington v. Thomas

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

March 13, 2018




         This case is presently before the court on Petition for Writ of Habeas Corpus, as amended, filed by petitioner Marcus Darnell Washington. (Docs. 1, 11.)[1] Washington, who is proceeding pro se, filed an Application for Habeas Corpus Under 28 U.S.C. § 2254 [Petition]. (Doc. 1.) Respondents, Warden Thomas and the Attorney General for the State of Alabama, filed an Answer. (Doc. 8.) Thereafter, Washington filed a Motion to Amend his petition, (doc. 11), which was granted, (doc. 20). For the reasons set forth herein, the court finds that Washington's habeas Petition, (doc. 1), and Amended Petition, (doc. 11), are due to be denied.

         Respondents argue that Washington's claims are due to be dismissed as procedurally defaulted. Specifically, they argue:

Procedural default may arise either “where the state court correctly applies a procedural default principle of state law to arrive at the conclusion that the petitioner's federal claims are barred” or when “the petitioner simply never raised a claim in state court” and the “unexhausted claim would now be procedurally barred due [to a] state-law procedural default.” Bailey v. Nagle, 172 F.3d 1299, 1302-03 (11th Cir. 1999). The latter applies in Washington's case.
Washington's failure to seek review on direct appeal or discretionary certiorari review from the Alabama Supreme Court pursuant to Rule 39 of the Alabama Rules of Appellate Procedure resulted in his claims not being properly exhausted and now procedurally defaulted.[2] See, [O'Sullivan v.] Boerckel, 526 U.S. [838, ] 842 [(1999)]; Smith [v. Jones], 256 F.3d [1135, ] 1138 [(11th Cir. 2001)]. Moreover, he cannot now return to state court to relitigate these claims because Rule 39 of the Alabama Rules of Appellate Procedure provides for a petition for writ of certiorari to be filed within 14 days of the decision of the Court of Criminal Appeals on the application for rehearing. Therefore, because these claims now raised in the present § 2254 petition can no longer be presented in state court, they are both effectively [un]exhausted and procedurally defaulted. See, Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991)(“if the [p]etitioner failed to exhaust state remedies and the court to which [p]etitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred[, ] . . . there is a procedural default for purposes of federal habeas").
Moreover, Washington has not proven cause and prejudice for the default or established his actual innocence. See, Smith, 256 F.3d 1138; Henderson [v. Campbell], 353 F.3d [880, ] 892 [(11th Cir. 2003)]. Therefore, until he establishes either cause and prejudice or that a fundamental miscarriage of justice will result if his claims are not considered by this Court, these claims are due no further review or relief in this Court. See, Jones v. White, 992 F.2d 1548, l 565 (11th Cir. 1993).

(Doc. 8 at 7-8 [footnote added].)

         In response to respondents' Answer, the court issued an Order, which informed Washington that the case was appropriate for summary disposition and that he had 21 days to file additional evidence and/or legal arguments before the court would take his petition under advisement. (Doc. 9.) Washington responded, (doc. 12); he also filed Motions to submit additional evidence and an Amended Petition. (See docs. 11, 13-15.) However, he does not contend that he properly exhausted his claims in state court or that he had cause for failing to exhaust his claims. Rather he contends that he has new evidence from LaToya Grace, whom he contends is “the perpetrator and only eye witness, ” that proves he is innocent of the crime for which he was convicted. (See doc. 12 at 4-6.)

         For the reasons set forth below, the court finds that Washington's claims, set forth in his Petition and Amended Petition, are procedurally defaulted. Also, Washington has not shown that this court should excuse the procedural default; therefore, his Petition and Amended Petition for habeas relief will be dismissed.


         The evidence is undisputed that Washington has not filed a petition for certiorari review of any of his claims. The Eleventh Circuit, in a case binding on this court, has held:

In order to satisfy the exhaustion requirement of 28 U.S.C. § 2254(c), “state prisoners [must] file petitions for discretionary review when that review is part of the ordinary appellate review procedure in the State.” O'Sullivan [v. Boerckel], 526 U.S. [838, ] 847, 119 S.Ct. [1728, ] 1733 [(1999)]. Consistent with the purpose of the exhaustion rule, “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. at 845, 119 S.Ct. at 1732. State prisoners are not required to present their claims through discretionary review if such review would be considered “extraordinary.” Id. at 845, 119 S.Ct. at 1733.
Alabama court rules provide for discretionary review in the Supreme Court of Alabama of decisions by the Alabama Court of Criminal Appeals. See Ala. R. App. P. 39(c). A petition for further review must be filed within 14 days after the Court of Criminal Appeals's opinion, and a specific format is provided to govern the filing form and content of the petition. Id. Rule 39(c)(2), (d). Nothing in the foregoing procedural requirements for discretionary review could be characterized as “extraordinary, ” as we understand O'Sullivan.
In sum, [petitioner] failed to petition the Alabama Supreme Court for discretionary review of the dismissal of his Rule 32 petition, as he could have within fourteen days, pursuant to Ala. R. App. P. 39(c)(2). Nothing in [O'Sullivan's] reasoning suggests that a different rule should apply in state post-conviction appeals as opposed to direct appeals. Accordingly, we find no error in the district court's conclusion that [petitioner] failed to exhaust his state ...

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