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Tomlin v. Patterson

United States District Court, S.D. Alabama, Southern Division

April 19, 2018

TONY PATTERSON, Warden, Holman Correctional Facility, Respondent.



         This case is before the Court on Petitioner Phillip Wayne Tomlin's (“Petitioner”) first habeas corpus petition, in which he raises thirty claims challenging his conviction and sentence for the murder of two people on January 2, 1977. (Doc. 1). This Court previously denied Petitioner habeas relief (Doc. 32), but in doing so it failed to take into account his motion to supplement claim number 30 in light of Magwood v. Warden, Ala. Dept. of Corrections, 664 F.3d 1340 (2011). (Doc. 22). Petitioner appealed, and the Eleventh Circuit Court of Appeals vacated this Court's order without prejudice to resolve the issues Petitioner raised in Claim 30. (Doc. 40). The Court of Appeals specifically directs this Court “to (1) determine whether the ex post facto issues raised in Tomlin's § 2254 reply brief were properly before the judge; (2) if so, decide those issues; (3) issue a decision on Tomlin's motion to supplement his § 2254 petition; and (4) if the judge grants that motion, decide the ex post facto and due process, fair warning claims raised in Tomlin's proposed supplement.” (Doc. 40, pp. 5-6).

         Upon due consideration, the Court granted Petitioner's Motion for Supplemental Pleading in regard to the above issues. (Doc. 43, 45). Petitioner filed his supplemental brief (Doc. 46), Respondent answered (Doc. 47), and Petitioner replied (Doc. 48). All three documents are presently before the Court and ripe for consideration. For the reasons set forth below, Petitioner's habeas corpus petition is denied as to his ex post facto and due process, fair-warning claim, and the petition is denied in all other aspects.

         I. BACKGROUND

         On January 2, 1977, the Mobile County police found the bodies of Richard Brune and Cheryl Moore along an Interstate 10 exit ramp in Mobile County, Alabama. Both victims suffered multiple gunshot wounds and died as a result. Police later arrested John Daniels and Tomlin for the murders of Brune and Moore.[1]

         Tomlin was subsequently tried, convicted, and resentenced to death for the 1977 murders of Brune and Moore through four separate trials. Tomlin's first three convictions were reversed on direct appeal. Tomlin v. Alabama, 909 So.2d 290, 290-91 (Ala.Crim.App.2004). The courts reversed Tomlin's convictions following his first and second capital murder trials, in 1978 and 1990 respectively[2], because of prosecutorial misconduct. See Ex parte Tomlin, 540 So.2d 668, 671 (Ala. 1988); Tomlin v. Alabama, 591 So.2d 550, 559 (Ala.Crim.App.1991).

         On May 28, 1993, before his third capital murder trial, a grand jury re-indicted Petitioner in a single count indictment charging him with violation of Code of Alabama § 13-11-2(a)(10). That indictment, which controls Petitioner's present sentence, reads as follows:

         COUNT 1

The GRAND JURY of [Mobile] County charge, that, before the finding of this indictment, Phillip Wayne Tomlin, whose name is to the Grand Jury otherwise unknown than as stated, did by one act or a series of acts, unlawfully, intentionally, and with malice aforethought, kill Richard Brune by shooting him with a gun, and unlawfully, intentionally and with malice aforethought, kill Cheryl Moore by shooting her with a gun, in violation of Code of Alabama 1975, § 13-11-2(10), against the peace and dignity of the State of Alabama.

(Doc. 9-1, p. 145). Petitioner was convicted of the capital murder charge, and the jury unanimously recommended life without parole. The trial judge, however, overrode the life verdict and sentenced Petitioner to death by electrocution on January 21, 1994. On June 21, 1996, The Alabama Court of Criminal Appeals reversed the conviction because of juror misconduct. Tomlin v. Alabama, 695 So.2d 157, 174 (Ala.Crim.App.1996), on reh'g (Sept. 27, 1996).

         In June 1999, Petitioner was again tried under the May 28, 1993 indictment. This is the conviction at issue in this case. On August 8, 2000, after a sentencing hearing, the trial judge overrode the unanimous jury verdict of life without parole and sentenced Petitioner to death. See Tomlin v. Alabama, 909 So.2d 213, 275 (Ala.Crim.App.2002), rev'd in part sub nom. Ex parte Tomlin, 909 So.2d 283 (Ala. 2003). On appeal, the Alabama Supreme Court affirmed his conviction but reduced his sentence to life imprisonment without parole. Ex parte Tomlin, 909 So.2d 283, 286 (Ala. 2003). The Alabama Supreme Court found Petitioner's death sentence “illegal for the absence of an aggravating circumstance enumerated in section § 13-11-6.” Ex parte Tomlin, 909 So.2d at 289.

         During state post-conviction proceedings, Petitioner argued unsuccessfully that his life sentence without parole violated ex post facto and due process principles under the United States and Alabama Constitutions.[3] In his January 2007 amended Rule 32 petition, Petitioner argued he is entitled to post-conviction relief because, as the Court of Criminal Appeals phrased it, “the trial court allegedly improperly sentenced him to imprisonment for life without the possibility of parole.” (Doc. 12-10, p. 2). The Court of Criminal Appeals, affirming the circuit court's dismissal of the petition (Doc. 12-6, p. 15), concluded this claim is without merit because “the trial court complied with the Alabama Supreme Court's instructions and sentenced the appellant to imprisonment for life without the possibility of parole.” (Doc. 12-10, p. 3). The state court complied with the Alabama Supreme Court's order to reduce Petitioner's sentence from death to life without parole. (Doc. 12-10).

         In his habeas corpus petition, Petitioner argues that his sentence of life without parole is illegal because the state statutes applicable to his case require the finding of an aggravating circumstance before he could be charged with capital murder or such a sentence may be imposed. (Doc. 1 pp. 50-51). After filing his reply but before the magistrate judge issued her report and recommendation, Tomlin filed a motion for leave to file a supplemental pleading. (Doc. 22). His proposed supplemental pleading references the “Billy Joe Magwood Opinions, ” a series of cases scrutinizing the same Alabama statutes that appear in Tomlin's case, which reached the United States Supreme Court while his petition remained pending.[4] (Doc. 22-1, p. 16). Petitioner brought this line of cases to the Court's attention in his motion to supplement, but this Court failed to rule on the motion or fully address his ex post facto or fair-warning due process claims raised therein. The Court entered an order adopting the magistrate judge's report and recommendation denying the Petition. (Doc. 32). Petitioner appealed, and the 11th Circuit Court of Appeals reversed this Court's decision. (Doc. 40).

         On remand from the Eleventh Circuit, this Court ordered supplemental briefing regarding the ex post facto and fair warning due process claims. (Doc. 43). In his supplemental brief, Petitioner asserts that his sentence violates the prohibition against ex post facto laws and the Fourteenth Amendment due process right to fair warning. (Doc. 46, p. 31). In support of this contention, Tomlin raises a two-pronged argument. First, he argues that a plain language interpretation of the Alabama Death Penalty Act of 1975 (the “1975 Act”) precludes the state from charging him with capital murder or sentencing him to life imprisonment without parole because an Alabama Code § 13-11-6 aggravating circumstance was not and could not be averred in the indictment. Id. Second, he contends that such an indictment or sentence is possible only through the retroactive application of subsequent judicial decisions, which results in the constitutional violations specified above. Id. at 41. Respondent counters that Petitioner is precluded from presenting this claim in federal court because Petitioner “never presented [such arguments] to the Alabama courts.” (Doc. 47, p. 7). Alternatively, Respondent contends that the constitutional claim is without merit for two reasons. First, Respondent argues that Petitioner's case is factually distinguishable from the line of cases finding the constitutional violation presently alleged. Id. at 9. And second, “[a]lthough not eligible to receive a death sentence based only on the offense charged, when Tomlin was charged with a capital offense under § 13-11-2, he was clearly given notice he was subject to a minimum sentence of life in prison without parole.” Id. at 16. “If no post-verdict aggravating circumstances were found, the statute provided for life imprisonment without parole for conviction” of a capital felony. Id.

         In accordance with the remand order, this Court must first determine which claims are properly before it. (Doc. 40, p. 5).

         II. Whether Petitioner's Claims are Properly Before the Court

         In order to be properly before this Court, Petitioner must have exhausted his claims and followed all procedural prescriptions. The Court evaluates each requirement in turn.

         a. Exhaustion of Claims

         Section 2254 generally requires petitioners to exhaust all available state-law remedies. 28 U.S.C. § 2254(b)(1)(A). In that regard, “[a] petitioner must alert state courts to any federal claims to allow the state courts an opportunity to review and correct the claimed violations of his federal rights . . .. Thus, to exhaust state remedies fully the petitioner must make the state court aware that the claims asserted present federal constitutional issues.” Lamarca v. Secretary, Dep't of Corrections, 568 F.3d 929, 936 (11th Cir. 2009) (citations omitted). A federal court should dismiss a state prisoner's federal habeas petition if the prisoner has not exhausted all available state remedies as to his federal claims. See Roase v. Lundy, 455 U.S. 509 (1982); 28 U.S.C. 2254(b) (codifying this rule). The exhaustion requirement is grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of a state prisoner's federal rights.

         A key element to the exhaustion requirement is that a federal claim be “fairly presented” to a state's highest court, either on direct appeal or collateral review. Picard v. Connor, 404 U.S. 270, 275 (1971). “It is not sufficient merely that the federal habeas petitioner has been through the state courts . . . nor is it sufficient that all the facts necessary to support the claim were before the state courts or that a somewhat similar state-law claim was made.” Kelley v. Sec'y for Dept. of Corr., 377 F.3d 1317, 1343-44 (11th Cir. 2004) (citing Picard, 404 U.S. at 275-76 and Anderson v. Harles, 459 U.S. 4, 6 (1982)). Rather, to ensure state courts have the first opportunity to decide the federal issue, a state prisoner must “present the state courts with the same claim he urges upon the federal courts.” Picard, 404 U.S. at 276 (citations omitted). A word-for-word recitation of the claim is not required, but the claim must be “such that the reasonable reader would understand each claim's particular legal basis and specific factual foundation.” Kelley, 377 F.3d at 1344-45. And a court should liberally construe pro se habeas corpus petitions. Dupree v. Warden, 715 F.3d 1295, 1299 (11th Cir. 2013). But that does not mean a court is expected to infer a pro se petitioner's federal claim “out of thin air.” Landers v. Warden, 776 F.3d 1288, 1296 (11th Cir. 2015) (finding pro se petitioner's claim not exhausted when no supporting cases were cited and no reference to the Fourteenth Amendment or Due Process was made).

         Respondent does not contend that Petitioner failed to raise an argument before the Alabama courts. Instead, Respondent contends that what “Tomlin presented . . . to the Alabama courts was an allegation the trial court lacked jurisdiction to impose a sentence of life without parole on the indictment because of the language of the statute.” (Doc. 47, p. 7). Thus, he made a state law claim to the Alabama courts and not the constitutional claim he now asserts. Id.

         The record of this case is voluminous, and the procedural history is convoluted. Nonetheless, the Court is satisfied that Petitioner, acting pro se, fairly presented his ex post facto and due process claim to the Alabama courts. To be sure, in his Rule 32 post-conviction proceeding with the state trial court, Petitioner argued that the indictment charging him with capital murder failed to aver a “corresponding aggravating circumstance.”[5] (Doc. 12-4, p. 93). Citing the relevant death penalty statute, Ala. Code § 13-11-1 (1975), he argued that a capital murder indictment “devoid of aggravating circumstances” precluded a defendant from being sentenced to either death or life without the possibility of parole. Id. Petitioner cited the Alabama Constitutions Ex Post Facto Clause in support of this claim. Id. at 94. That fact that Petitioner failed to reference the United States Constitution Ex Post Facto Clause is not fatal. Petitioner averred that the state trial court's actions “violated [his] substantive [r]ight to due process” under the United States Constitution. Id. A reasonable reader would understand Petitioner's due process argument as including an ex post facto component. See Rogers v. Tennessee, 532 U.S. 451, 456 (2001) (reasoning that ex post facto protections are inherent in due process).

         After the trial court denied his post-conviction action, Petitioner appealed to the Alabama Court of Criminal Appeals. See (Doc. 12-7, pp. 1-78). Although it was not word-for-word, Petitioner's appeal brief made an argument parallel to his trial court pleading in Claim VII-1. First, he argued that his sentence was illegal due to the indictment's absence of an “aggravating circumstance enumerated” in §13-11-6. Id. at 68. In making this argument, Petitioner specifically cited the Ex Post Facto Clause. See Id. at 67 (citing U.S. Const. art. 1, § 10). Second, Petitioner specifically stated that his sentence of life imprisonment without parole violates the right to due process guaranteed by the United States Constitution. Id. at 62. He argued that he was acquitted of any § 13-11-2 capital felonies with corresponding § 13-11-6 aggravating circumstances. Id. at 68. He also argued that the indictment contained no § 13-11-6 aggravating circumstance. “As such, ” he argued, his “sentence is illegal.” Id. at 68. A reasonable reader would understand Petitioner's pro se legal and factual basis to be constitutional and grounded in the prohibition of ex post facto laws and due process protections. His argument was not hidden within the pleading, nor was it a moving target, shifting with the turn of each page. See McNair v. Campbell, 416 F.3d 1291, 1303 (11th Cir. 2005) (explaining that exhaustion requires more than scattering some makeshift needles of federal claims in the haystack of the state court record).

         As a last point of potential relief in the Alabama court system, Petitioner filed a petition for writ of certiorari with the Alabama Supreme Court. (Doc. 12-12). He again argued that his sentence is invalid due to his ineligibility for life without the possibility of parole because no aggravating circumstance was averred in the indictment. Id. at 10. Although his foundation for potential review rested in the ex post facto application of law, Petitioner specifically referenced his argument in the appellate court that dealt with federal due process protections, too. See Id. at 9. Therefore, given the pro se nature of Petitioner's pleading, the Court is satisfied that a reasonable reader would have interpreted his argument to also contain a federal due process element.

         In the instant matter, Claim XXX is the claim at issue. (Doc. 1, p. 50). Claim XXX alleges that a sentence of life without the possibility of parole violates Petitioner's right under the “Fourteenth Amendment[ ] (due process and equal protection of the law) as guaranteed in the United States Constitution.” Id. at 51. This argument is grounded in a manner similar to that plead in state court: the indictment failed to expressly aver aggravating circumstances. Id. Although Petitioner does not argue the constitutional guarantee against the ex post facto application of law, it is not fatal for the same reason state above: such a limitation is inherent in the principles of due process. See Rogers, 532 U.S. at 456. Thus, a common thread runs through Petitioner's pleadings that would lead a reasonable reader to understand the legal basis and factual foundation of his claim as constitutional. Moreover, Respondent conceded in his answer that “Tomlin's claims have been fully exhausted through available state remedies.” (Doc. 9, p. 11). Therefore, the Court finds Petitioner fairly presented his claims to the Alabama courts and met the exhaustion requirement.

         b. Procedural Bar

         Respondent argues that Petitioner is procedurally barred from bringing the instant action because he filed his constitutional claims outside Alabama's one-year statute of limitation for post-conviction proceedings. (Doc. 47, p. 8). Respondent also argues that any claim Petitioner raised was jurisdictionally, not constitutionally based, Id at 7, and that therefore, the state court's denial rests on adequate and independent state grounds. Petitioner, however, argues that his claims were federal claims and not procedurally barred because the state courts failed to expressly assert such a bar. (Doc. 48, p. 14).

         “The teeth of the exhaustion requirement comes from its handmaiden, the procedural default doctrine.” Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001). Under this doctrine, “[a] state court's rejection of a petitioner's constitutional claim on state procedural grounds will generally preclude any subsequent federal habeas review of that claim.” Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001). “[A] procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case ‘clearly and expressly' states that its judgment rests on a state procedural bar.” Harris v. Reed, 489 U.S. 255, 263 (1989). Therefore, it is insufficient that the state court could have procedurally barred a federal claim. Caldwell v. Mississippi, 472 U.S. 320, 327 (1985). It must actually do so. Id.

         Even if a claim is procedurally barred, a federal court may reach the merits of a claim if the petitioner can show “cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991). The Supreme Court has “not identified with precision exactly what constitutes ‘cause' to excuse a procedural default.” Edwards v. Carpenter, 529 U.S. 446, 451 (2000). Nonetheless, “the existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). Actual prejudice goes beyond mere error and reaches a level that works to a defendant's “actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 172 (1982).

         A fundamental miscarriage of justice occurs when a “constitutional violation probably has caused the conviction of one innocent of the crime.” McCleskey v. Zant, 499 U.S. 467, 494 (1991). In order to show actual innocence, a petitioner must present “reliable evidence . . . not presented at trial” such that “it is more likely than not that no reasonable juror would have convicted him of the underlying offense.” Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001) (internal quotation marks omitted). Therefore, the “actual innocence” exception requires more than a showing that the petitioner is merely guilty of some lesser degree of wrongdoing. Rozzelle v. Sec., Fla. Dept. of Corr., 672 F.3d 1000, 1017 (11th Cir. 2012).

         Petitionr does not argue cause and prejudice or actual innocence, so the only question is whether the state court clearly invoked a procedural bar. In an Alabama post-conviction proceeding, a procedural bar applies to constitutional claims filed more than “one (1) year after the issuance of the certificate of judgment by the Court of Criminal Appeals . . . .” Ala. R. Crim. P. 32.2(c). On direct appeal of his conviction, Petitioner filed a writ of certiorari with the Alabama Supreme Court after the appellate court denied his claim. The Alabama Supreme Court denied certiorari on March 18, 2005. (Doc. 12-1). The Alabama Court of Criminal Appeals' decision became final on the same day. (Doc. 12-2). Therefore, Petitioner faced a March 18, 2006 deadline for post-conviction constitutional claims. Petitioner, however, waited until December 2006 to begin his post-conviction proceeding with the state court. Further, the argument at issue, amendment three of the amended post-conviction pleading, was not before the trial court until August 2007. (Doc. 12-4, p. 92-95). Nonetheless, the trial court considered all claims together. (Doc. 12-4, p. 18.)

         The state trial court's consideration of Petitioner's claims can be categorized in two ways: (1) claims denied for lack of proper specificity under Rules 32.6(b) and 33.3 (sic) of the Alabama Rules of Criminal Procedure (Doc. 12-4, pp.19-20), and (2) claims preluded by the statute of limitations under Rule 32.2(c) of the Alabama Rues of Criminal Procedure. Id. The trial court placed the claim at issue into the first category. The Court finds this important for several reasons. First, there is no doubt that the instant claim was not procedurally barred when eight other claims were unequivocally labeled as such and this one was not. See (Doc. 12-4, p. 20). Second, within the Eleventh Circuit, dismissal under Rule 32.6 of the Alabama Rules of Criminal Procedure is deemed a ruling on the merits in a federal habeas action and not a procedural bar. See Boyd v. Alabama Dept. of Corr., 697 F.3d 1320, 1331 (11th Cir. 2012).

         The Court of Criminal Appeals evaluated Petitioner's claims in a similar fashion.[6] That court divided Petitioner's claims into (1) those claims procedurally barred and (2) those claims found to be without merit. The instant claim fell into the latter. The appellate court found in relevant part:

The appellant filled his petition more than one year after this court issued a certificate of judgment. Therefore, claims 1, 3, and 5 are precluded because they are time-barred. See Rule 32.2(c), Ala. R.

Crim. P.

Finally, with regard to claim 4, after this court [sic] affirmed the appellant's conviction and sentence of death, the Alabama Supreme Court “reverse[d] the judgment of the Court of Criminal Appeals as to Tomlin's sentence and remand[ed] the case for that court to instruct the trial court to resentence Tomlin, following the jury's recommendation of life imprisonment without the possibility of parole.” See Tomlin v [Alabama], 909 So.2d 283, 287 (Ala. 2003). On remand, the trial court complied with the Alabama Supreme Court's instructions and sentenced the appellant to imprisonment for ...

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