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Maggard v. Boyd

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

May 10, 2018

GREGORY VIRGIL MAGGARD, # 275147, Petitioner,
v.
LOUIS BOYD, et al., Respondents.

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          TERRY F. MOORER UNITED STATES MAGISTRATE JUDGE

         Acting pro se, Alabama inmate Gregory Virgil Maggard (“Maggard”) brings this petition for writ of habeas corpus under 28 U.S.C. § 2254 challenging his convictions for two counts of sodomy in the first degree and one count of sexual abuse of a child less than 12 years old. Doc. No. 1.[1]

         I. BACKGROUND AND PROCEDURAL HISTORY

         On October 20, 2010, an Elmore County jury found Maggard guilty of two counts of sodomy in the first degree, in violation of § 13A-6-63, Ala. Code 1975, and one count of sexual abuse of a child less than 12 years old, in violation of § 13A-6-69.1, Ala. Code 1975. On November 16, 2010, the trial court sentenced Maggard to consecutive terms of 176 months' imprisonment for the sodomy counts, to run concurrently with a term of 36 months' imprisonment for the sexual-abuse count.

         Maggard appealed, raising claims that the trial court erred by (1) allowing the State to ask him during cross-examination if he was calling the victim a liar; (2) allowing the State to ask him on the stand if he made misleading statements to the district court during his bond reduction hearing; and (3) allowing one of the State's experts to testify when the State did not disclose certain documentation related to the expert's testimony until after the trial began. See Doc. No. 6-4.

         On October 21, 2011, the Alabama Court of Criminal Appeals issued a memorandum opinion affirming Maggard's convictions and sentence. Doc. No. 6-6. Maggard applied for rehearing, which was overruled on November 18, 2011. Doc. Nos. 6-7 & 6-8. Maggard then filed a petition for writ of certiorari with the Alabama Supreme Court, which that court denied on March 9, 2012. Doc. Nos. 6-9 & 6-10.

         Around August 10, 2012, Maggard filed a pro se petition in the trial court seeking post-conviction relief under Rule 32 of the Alabama Rules of Criminal Procedure. See Doc. No. 6-12 at 3-85. In his Rule 32 petition, Maggard alleged numerous instances of ineffective assistance of trial and appellate counsel and various instances of trial court error and prosecutorial misconduct. Id.

         On May 20, 2013, the trial court entered an order denying Maggard's Rule 32 petition. Id. at 193. Maggard appealed, and on January 30, 2015, the Alabama Court of Criminal Appeals issued a memorandum opinion affirming the trial court's judgment denying Maggard's Rule 32 petition. Doc. No. 6-16. Maggard applied for rehearing, which the Alabama Court of Criminal Appeals overruled on March 6, 2016. Doc. Nos. 6- 17 & 6-18. Maggard filed a petition for writ of certiorari with the Alabama Supreme Court, which that court denied on May 15, 2015. Doc. Nos. 6-19 & 6-20.

         On July 30, 2015, Maggard initiated this habeas action by filing a § 2254 petition asserting the following claims:

1. The trial judge erred and abused his discretion by engaging in biased conduct and making biased remarks and rulings throughout the trial, specifically, by (a) instructing the jury that Maggard's testimony was not credible because Maggard had an interest in the outcome of the proceedings; (b) commenting in front of jurors that he had a quail-hunting trip scheduled for the next day that he intended to be on whether or not a verdict was reached; (c) making improper ex parte contacts with the jury during its deliberations to hurry jurors into reaching a verdict; and (d) allowing a State's expert to give her opinion on whether she believed the victim was credible.
2. The prosecutor engaged in misconduct by (a) insinuating during closing arguments that the absence of defense witnesses, and the absence of Maggard's mother from the courtroom until the second day of trial, was evidence of Maggard's guilt; (b) asking Maggard during cross-examination if he was calling the victim a liar; (c) vouching for the victim's credibility during closing arguments; and (d) “fail[ing] to answer nine allegations made by the petitioner in his Rule 32 petition.”
3. Trial counsel rendered ineffective assistance by failing to (a) conduct a pretrial investigation; (b) obtain the report from Child Protect's initial interview with the victim; (c) object to the trial court's bias; (d) “make an election under the ‘Doctrine of Election' rule” about which incidents of sodomy and sexual abuse the jury should consider in its deliberations; and (e) properly cross-examine one of the State's expert witnesses.

Doc. No. 1 at 5-9; Doc. No. 2 at 8-56.

         For the reasons that follow, it is the recommendation of the Magistrate Judge that Maggard's § 2254 petition be denied without an evidentiary hearing and this case be dismissed with prejudice.

         II. DISCUSSION

         A. Claims of Trial Court Error

         Maggard's § 2254 petition contains claims that the trial judge erred and abused his discretion by engaging in biased conduct and making biased remarks and rulings throughout his trial. Doc. No. 1 at 7; Doc. No. 2 at 13-14, 37-42 & 49. First, Maggard claims that the trial judge improperly instructed the jury that Maggard's testimony was not credible because he had an interest in the outcome of the proceedings. Doc. No. 2 at 37- 39. Next, Maggard claims that the trial judge improperly commented in front of jurors that he had a quail-hunting trip scheduled for the next day that he intended to be on whether or not a verdict was reached. Id. at 37 & 40-41. Maggard also claims that the trial judge made improper ex parte contacts with the jury during its deliberations to hurry jurors into reaching a verdict. Id. Finally, Maggard claims that the trial judge erroneously allowed a State's expert, a forensic interviewer who interviewed the victim about the alleged sexual assaults, to give her opinion on whether she believed the victim was credible. Id. at 13- 14, 42 & 49.

         Maggard presented these claims in his state Rule 32 petition. Doc. No. 6-12 at 51- 62. In denying relief on these claims, the trial court found they were procedurally barred under Rule 32.2(a)(5) of the Alabama Rules of Criminal Procedure, because “they either were raised or could have been raised on direct appeal of [Maggard's] underlying case.” Doc. No. 6-12 at 193. Rule 32.2(a)(5) of the Alabama Rules of Criminal Procedure precludes collateral relief on claims that could have been raised on direct appeal, but were not. Ala.R.Crim.P. 32.2(a)(5). (Rule 32.2(a)(4), which was not cited by the trial court, precludes collateral relief on claims raised and addressed on direct appeal. See Ala.R.Crim.P. 32.2(a)(4).)

         A review of Maggard's pro se brief on appeal from the denial of his Rule 32 petition reveals that, of the above-alleged claims of trial court error, the only claims Maggard pursued in his appellate brief were his claims that the trial judge (1) improperly remarked in front of jurors that he had a hunting trip scheduled for the next day that he intended to be on whether or not a verdict was reached, and (2) made improper ex parte contacts with the jury during its deliberations to hurry jurors into reaching a verdict. Doc. No. 6-14 at 11-24. Maggard presented other claims of trial court error in his appellate brief, but he does not pursue those claims in his § 2254 petition.

         In denying Maggard relief on his claims of trial court error, the Alabama Court of Criminal Appeals stated:

[This] Claim . . . alleged various instances of abuse of discretion by the trial court. In his brief on appeal, [Maggard] merely reiterated the comments made by the trial judge and cited Rule 3 of the Canons of Judicial Ethics. In his brief he did not argue how the comments listed were a violation of the canon, or cite any authority supporting his claim that the comments were a violation of the canon.
. . . .
None of [Maggard's] arguments regarding [this] Claim . . . met the requirements of Rule 28(a)(10), Alabama Rules of Appellate Procedure; therefore, he has waived consideration of this issue, and is not entitled to appellate relief on this claim.

Doc. No. 6-16 at 10.

         Rule 28(a)(10) of the Alabama Rules of Appellate Procedure provides that an argument in an appellant's brief must “contain[ ] the contentions of the appellant/petitioner with respect to the issues presented, and the reasons therefor, with citations to the cases, statutes, other authorities, and parts of the record relied on.” Ala.R.App.P. 28(a)(10).

         1. Procedural Default: “Adequate and Independent State Grounds”

         Federal habeas review may be unavailable for claims that a state court has rejected on state procedural grounds. Coleman v. Thompson, 501 U.S. 722, 729 (1991). When a state prisoner fails to follow state procedural rules, thereby procedurally defaulting on a claim, the authority of federal courts to review the prisoner's state court criminal conviction is “severely restricted.” Johnson v. Singletary, 938 F.2d 1166, 1173 (11th Cir. 1991). “Federal review of a petitioner's claim is barred by the procedural-default doctrine if the last state court to review the claim states clearly and expressly that its judgment rests on a procedural bar, and that bar provides an adequate and independent state ground for denying relief.”[2] Atkins v. Singletary, 965 F.2d 952, 955 (11th Cir. 1992); see Marek v. Singletary, 62 F.3d 1295, 1301-02 (11th Cir. 1995).

         a. Rule 28(a)(10), Alabama Rules of Appellate Procedure

         Maggard's brief from his Rule 32 appeal is in the record. Doc. No. 6-14. The inadequacies of that brief regarding Maggard's claims of trial court error are accurately described by the Alabama Court of Criminal Appeals in its memorandum opinion in Maggard's Rule 32 appeal. See Doc. No. 6-16 at 10. The Court of Criminal Appeals' application of Ala.R.App.P. 28(a)(10) to hold that Maggard waived appellate review of his claims of trial court error constitutes an adequate and independent state procedural ground for denying relief. See Harris v. Reed, 489 U.S. 255, 264 n.10 (1989); Atkins, 965 F.2d at 955. This procedural bar is firmly established and regularly followed by Alabama appellate courts.[3] See, e.g., Hamm v. State, 913 So.2d 460, 486 & 490-91 (Ala.Crim.App.2002); Gay v. State, 562 So.2d 283, 289 (Ala.Crim.App.1990). Consequently, Maggard's present claims of trial court error are procedurally defaulted. See, e.g., Hamm v. Allen, 2013 WL 1282129, at *19-21 (N.D. Ala. Mar. 27, 2013) (petitioner's claims were procedurally defaulted where Alabama Court of Criminal Appeals found that such claims were waived due to petitioner's failure to comply with Ala.R.App.P. 28); Bester v. Patterson, 2013 WL 6191520 at *11-12 (N.D. Ala. Nov. 26, 2013) (same).

         b. Rule 32.2(a)(5), Alabama Rules of Criminal Procedure

         In denying Maggard relief on his Rule 32 claims of trial court error, the trial court found that such claims were procedurally barred under Rule 32.2(a)(5) of the Alabama Rules of Criminal Procedure, “as they either were raised or could have been raised on direct appeal of [Maggard's] underlying case.” Doc. No. 6-12 at 193. The state court's application of Ala.R.Crim.P. 32.2(a)(5) constitutes an adequate and independent state procedural ground for denying relief. Harris, 489 U.S. at 264 n.10. This procedural bar is firmly established and regularly followed by Alabama appellate courts. See, e.g., Tucker v. State, 696 So.2d 1170, 1171-73 (Ala.Crim.App.2006); Brownlee v. Haley, 306 F.3d 1043, 1065-66 (11th Cir. 2002). Consequently, Maggard's claims of trial court error are procedurally defaulted on this basis as well.

         c. Exceptions to Procedural Default

         A habeas petitioner can overcome a procedural default either through showing cause for the default and resulting prejudice, Murray v. Carrier, 477 U.S. 478, 488 (1986), or establishing a “fundamental miscarriage of justice, ” which requires a colorable showing of actual innocence, Schlup v. Delo, 513 U.S. 298, 324-27 (1995). Cause for a procedural default must ordinarily turn on whether the petitioner can show that some objective factor external to the defense impeded efforts to comply with the state's procedural rules. Murray, 477 U.S. at 488; United States v. Frady, 456 U.S. 152, 170 (1982). Examples of such external impediments include a factual or legal basis for a claim not reasonably available, interference with the defense by government officials, or constitutionally ineffective assistance of counsel. Murray, 477 U.S. at 488. To establish prejudice, a petitioner must show that the errors worked to his “actual and substantial disadvantage, infecting his entire [proceeding] with error of constitutional dimensions.” Id. at 494 (internal quotations and emphasis omitted). Prisoners asserting actual innocence as a gateway to review of defaulted claims must establish that, in light of new evidence, “it is more likely than not that no reasonable juror would have found [the] petitioner guilty beyond a reasonable doubt.”[4] Schlup, 513 U.S. at 327.

         Maggard sets forth no grounds as cause excusing his procedural default. Further, he does not argue that the actual-innocence exception provides a gateway for review of his procedurally defaulted claims. Because Maggard fails to demonstrate cause or actual innocence excusing his procedural default, his claims of trial court error are foreclosed from federal habeas review.

         2. Procedural Default: Failure to Exhaust

         As indicated above, Maggard did not pursue all of his claims of trial court error in his brief on appeal from the denial of his Rule 32 petition. His appellate brief did not mention his claims, presented in his Rule 32 petition, that the trial court abused its discretion by (1) instructing the jury that his testimony was not credible because he had an interest in the outcome of the proceedings and (2) allowing a State's expert to give her opinion on whether she believed the victim was credible. (Maggard also did not raise these claims on direct appeal.)

         Before a § 2254 petitioner may obtain federal habeas corpus review, he must “exhaust” his federal claims by raising them in the appropriate court, allowing the state courts to decide the merits of the constitutional issue raised. 28 U.S.C. § 2254(b)(1) & (c); Duncan v. Walker, 533 U.S. 167, 178-79 (2001). To exhaust a claim fully, a petitioner must “invok[e] one complete round of the State's established appellate review process.” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). In Alabama, a complete round of the established appellate review process includes an appeal to the Alabama Court of Criminal Appeals, an application for rehearing to that court, and a petition for discretionary review- a petition for a writ of certiorari-filed in the Alabama Supreme Court. Smith v. Jones, 256 F.3d 1135, 1140-41 (11th Cir. 2001); Ala.R.App.P. 39 & 40. The exhaustion requirement applies to state post-conviction proceedings and to direct appeals. See Pruitt v. Jones, 348 F.3d 1355, 1359 (11th Cir. 2003).

         Habeas claims not properly exhausted in the state courts are procedurally defaulted if presentation of the claims in state court would be barred by state procedural rules. Gray v. Netherland, 518 U.S. 152, 161-62 (1996); Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991). “[I]f the petitioner failed to exhaust state remedies and the court to which the petitioner 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.” Coleman, 501 U.S. at 735 n.1 (citations omitted); see Henderson v. Campbell, 353 F.3d 880, 891 (11th Cir. 2003).

         The state appellate court was never presented with Maggard's claims that the trial court abused its discretion by (1) instructing the jury that Maggard's testimony was not credible because he had an interest in the outcome of the proceedings[5] and (2) allowing a State's expert to give her opinion on the victim's credibility. Therefore, Maggard did not exhaust these claims in the state courts. Maggard may no longer return to the state courts to exhaust these claims because the time for him to file any state appeal asserting these claims has long since passed. Thus, the exhaustion and preclusion rules coalesce into the procedural default of these claims. See Coleman, 501 U.S. at 735 n.1; Henderson, 353 F.3d at 891. Because Maggard sets forth no grounds as cause excusing his procedural default and he does not argue the actual-innocence exception for defaulted claims, these claims are also foreclosed from federal habeas review on this basis.

         3. Judicial Bias: Trial Judge's Comments and Ex Parte Contacts with Jury

         As noted above, Maggard pursued only two of his present claims of trial court error in his brief on appeal from the denial of his Rule 32 petition, specifically, his claims that that the trial judge (1) improperly remarked in front of jurors that he had a hunting trip scheduled for the next day that he intended to be on whether or not a verdict was reached, and (2) made improper ex parte contacts with the jury during its deliberations to hurry jurors into reaching a verdict. See Doc. No. 6-14 at 11-24. Even if these claims were not procedurally defaulted based on adequate and independent state procedural grounds via the state courts' application of Ala.R.App.P. 28(a)(10) and Ala.R.Crim.P. 32.2(a)(5), the claims would fail on the merits nonetheless.

         The complained-of comments and actions by the trial judge do not appear in the trial transcript. Maggard bases his claims on affidavits submitted by his mother and an individual named Robert C. Aldrich. Doc. No. 6-12 at 166 & 184. It appears from the averments of Maggard's mother that the alleged remarks by the trial judge about his hunting trip were made outside the jury's presence, after the jury had begun deliberations. Doc. No. 6-12 at 184. At any rate, there is no suggestion that the alleged remarks were overheard by jurors. Further, the alleged remarks, on their own, are insufficient to demonstrate bias by the trial judge against Maggard. “[J]udicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge, ” and will do so only where “they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.” ...


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