United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
BRADLEY MURRAY UNITED STATES MAGISTRATE JUDGE.
Lamar Holifield, a state prisoner presently in the custody of
the respondent, has petitioned this Court for federal habeas
corpus relief pursuant to 28 U.S.C. § 2254. Petitioner
challenges the validity of his February 24, 2015 first-degree
rape, first-degree sodomy (2 counts), and second-degree
kidnapping convictions in the Circuit Court of Mobile County,
Alabama. On April 16, 2015, the Circuit Court sentenced
Petitioner for those convictions to consecutive life terms of
imprisonment on the rape and sodomy counts, with a 15-year
sentence on the kidnapping conviction to run concurrent to
the rape sentence. The Alabama Court of Criminal Appeals
affirmed Holifield's convictions and sentences by
unpublished memorandum opinion issued on February 5, 2016.
See Holifield v. State, 225 So.3d 136 (Ala.Crim.App.
2016) (table). Holifield's application for rehearing was
denied on February 26, 2016, id.; however, Holifield
did not petition the Alabama Supreme Court for writ of
certiorari and, as a result, the Alabama Court of Criminal
Appeals issued a certificate of final judgment of affirmance
on March 16, 2016 (see Doc. 8, Exhibit 8). Holifield
filed a Rule 32 petition in the Circuit Court of Mobile
County, Alabama collaterally attacking his convictions and
sentences on July 15, 2016. (Doc. 8, Exhibit 10, February 16,
2017 ORDER, at 1). The trial court summarily denied
Holifield's collateral petition without an evidentiary
hearing. (See id.). The Alabama Court of Criminal
Appeals affirmed the trial court's judgment by
unpublished memorandum decision issued on August 11, 2017.
(Doc. 8, Exhibit 14). Petitioner's application for
rehearing was overruled on September 1, 2017. (Doc. 8,
Exhibit 16). Holifield's petition for writ of certiorari
to the Alabama Supreme Court was denied without opinion on
November 9, 2017 (Doc. 8, Exhibit 18), and the certificate of
final judgment issued that same date (Doc. 8, Exhibit 19).
petition before this Court, filed January 18, 2018 (Doc. 1,
at 13), Holifield raises the following issues which he claims
entitle him to federal habeas corpus relief: (1) the trial
court committed reversible error in refusing his request for
a jury instruction on the lesser-included offense of
third-degree assault; (2) his trial counsel provided
ineffective assistance; (3) his appellate counsel provided
ineffective assistance; and (4) the trial court was without
jurisdiction to render judgment or impose sentence, his
convictions being void ab initio and repugnant to
the United States Constitution because the Alabama
Constitution of 1901 was enacted with the sole intent to
establish white supremacy and to disenfranchise blacks and
poor whites. Respondent contends that this Court is
procedurally barred from reaching the merits of
Holifield's first claim (that is, the lesser-included
jury instruction contention); that Petitioner has failed to
establish, with respect to his ineffective assistance of
counsel claims, that the decisions of the state courts
(primarily that of the trial court) were contrary to or
involved an unreasonable application of Strickland v.
Washington or that these decisions were based on an
unreasonable determination of the facts in light of the
evidence presented in state court; and that Petitioner's
final claim has no basis. (See Doc. 8, at 5-16.)
cause is before the Court on the petition (Doc. 1),
Respondent's answer with attachments (see Doc.
8), and Petitioner's response (Doc. 10) to the
undersigned's April 18, 2018 show cause order (Doc. 9). A
full, thorough review of the record has been completed and it
is determined that it contains sufficient facts upon which
the issues under consideration may be properly resolved.
Therefore, no evidentiary hearing is required. Compare
Means v. Secretary, Department of Corrections, 433
Fed.Appx. 852, 855 (11th Cir. July 12, 2011) (“[W]here
‘the record refutes [a petitioner's] factual
allegations or otherwise precludes habeas relief, a district
court is not required to hold an evidentiary
hearing.'”) (citation omitted)), cert.
denied, 565 U.S. 1217, 132 S.Ct. 1580, 182 L.Ed.2d 198
(2012) with Allen v. Secretary, Florida Dep't of
Corrections, 611 F.3d 740, 745 (11th Cir. 2010)
(“A district court is not required to hold an
evidentiary hearing if the claims ‘are merely
conclusory allegations unsupported by specifics,' . . .
or ‘if the record refutes the applicant's factual
allegations or otherwise precludes habeas
relief[.]'”), cert. denied, 563 U.S. 976,
131 S.Ct. 2898, 179 L.Ed.2d 1192 (2011).
the late evening hours of April 12, 2013, and the early
morning hours of April 13, 2013, Ashley Nathan and a friend,
Joy Robinson, went out drinking and socializing, stopping
first at Breaker's Pool Hall, until that establishment
closed at 1:00 a.m., before moving to Suga's Club.
(Compare Doc. 8, Exhibit 2, T.T. 115-19
with T.T. 140-44). At Suga's, Nathan met a guy
named “Gater” with whom she began talking and
dancing. (T.T. 144-45; see also Id. at 119).
According to Nathan, Gater asked the two girls if they wanted
to get something to eat after the club closed and that the
three made plans to go to Denny's. (Id. at
145-46). The plan, however, was not to ride to Denny's
together; instead, the girls agreed to take Gater to get his
truck before heading to the restaurant (id. at 147),
after first stopping for gas (see Id. at 142). When
they arrived outside the house where Gater's SUV was
parked, Robinson's phone rang and she thereafter informed
Nathan that she had to leave to pick up her child from the
sitter; Nathan was given the option to leave with Robinson or
stay with Gater. Nathan chose to stay and go to breakfast at
Denny's with Gater. (Id. at 148). After Robinson
left, Gater told Nathan that he had to go inside the house to
retrieve his wallet and that he did not want her standing
outside alone in the dark and cold. (See Id. at
149). Once inside, the pair went to the room in which Gater
was living and, once in the room, Gater closed and locked the
door and, ultimately, raped and sodomized Nathan, first at
knifepoint and then at gunpoint. (See Id. at
Nathan emerged from Gater's room and house, it was
daylight. (Id. at 168). She ran down the street and
was admitted to the second house at which she knocked
(see Id. at 169), the home Sharon Howard Webb shared
with her husband (see Id. at 132-33). Webb testified
that Nathan was crying, appeared to be a nervous wreck, and
was carrying her shoes in one of her hands. Once Webb
supplied Nathan with a blanket, she asked her what had
happened and upon being informed by Nathan that she was
raped, Webb called the police. (Id. at 133-34).
Jonathan Rabeau spoke to a distraught and crying Nathan,
after which the responding officers moved to the address of
the incident and arrested Eric Holifield, advising him that
he was being arrested on a charge of rape. (See Id.
at 203-08; see also T.T. 220 (Rabeau's in-court
identification of the defendant as the man he arrested on the
morning of April 13, 2013)). The officers seized three knives
in plain view on the nightstand, found Nathan's pink
wallet with her identification under Holifield's
mattress, and (for officer safety) asked Holifield about the
location of the gun utilized during the course of the
incident. (Id. at 207-08). Holifield advised the
officers that he did not have a gun and had not raped anyone,
though he admitted being with a girl. (Id. at 209).
A gun was found in a hole in a wall in the room and given the
darkness of the room, along with the fact that the gun was
black with silver camouflage markings, the officers were only
able to determine that the gun was a toy after it had been
removed from the hole in the wall and inspected. (See
Id. at 212-15; see also T.T. 354
(Holifield's testimony that the gun was a cap gun)).
According to Rabeau, as he was transporting Holifield to
jail, Holifield commented to the officer that he was not
worried about the case since the officer (Rabeau) would never
make it to court to testify against him. (See Id. at
Kays, a Sexual Assault Nurse Examiner (“SANE”)
for Mobile County, interviewed Nathan and performed a rape
kit examination of the victim at around 11:00 a.m. on April
13, 2013, at USA Children's and Women's Hospital.
(Compare Id. at 245 & 255-71 with Id.
at 173 (Nathan's testimony that she was taken by
ambulance to Children's & Women's Hospital)).
Kays recorded her interview with Nathan (see Id. at
259-260), a recording which is largely consistent with
Nathan's trial testimony (compare Id. with Id.
at 143-67), and then examined Nathan, during which she took
vaginal, anal and oral swabs (id. at 266; see
also Id. at 263-71). Kays testified as an expert, over
defense counsel's objection and exception (see
Id. at 240-45 & 249-50), in particular stating that
everything she observed during her physical examination of
Nathan was consistent with the victim's report of a
sexual assault (id. at 270).
Morgan, the Chief Investigator for the Mobile County District
Attorney's Office, obtained Holifield's DNA, by
buccal swab of each cheek, on September 23, 2014.
(Id. at 278-80). And Joseph Lee, a forensic
scientist in the DNA section of the Alabama Department of
Forensic Sciences, testified that the semen on the vaginal
swabs taken from Nathan matched Holifield's DNA. (See
Id. at 284, 289-94 & 296-97).
counsel for Holifield offered a robust defense of his client
as he attempted to cast more doubt on Nathan's account of
the sexual encounter and the District Attorney's theory
of the case, that is, more than could be established through
cross-examination of the State's witnesses,
through the testimony of five defense witnesses (see
T.T. 302-67), including the defendant himself (T.T. 330-60).
Eric Holifield admitted that he and Nathan engaged in sexual
activities on the morning of April 13, 2013 but testified
that all sexual activity was consensual. (See Id. at
342 & 344). Indeed, it was Holifield's trial
testimony that Nathan aggressively pursued him at Suga's
(id. at 331-32 (Nathan grabbed him by an armed,
pulled him in a chair, and began dancing on his lap)), and
that when they reached his mother's house, Nathan
informed him in no uncertain terms that they were going to
have sexual intercourse (see Id. at 338-39).
trial court charged the jury on the elements of first-degree
rape, first-degree sodomy, first-degree kidnapping and the
lesser-included offense of second-degree kidnapping
(see T.T. 418-24) but refused to charge the jury on
third-degree assault, as a lesser-included offense of
first-degree sodomy (see Id. at 376-79).
February 24, 2015, a jury of Holifield's peers found him
guilty of one-count of first-degree rape, two counts of
first-degree sodomy, and the lesser-included offense of
second-degree kidnapping. (T.T. 438-39). On April 16, 2015,
Holifield was sentenced to a 15-year term of imprisonment for
second-degree kidnapping, to run concurrent with a term of
life on the rape case, and then a term of life for sodomy, to
run consecutive to the rape sentence. (Compare Doc.
8, Exhibit 2, Sentencing Transcript, at 14-15 with
Doc. 8, Exhibit 5, at 2 n.2 (“It is clear from the
sentencing orders that the sodomy charge was ordered to run
consecutively with the rape and kidnapping charges.”)).
Thereafter, Holifield entered oral notice of appeal. (Doc. 8,
Exhibit 2, Sentencing Tr., at 15).
appeal, Holifield raised one issue, namely, that the trial
court committed reversible error in refusing his request for
a jury instruction on the lesser-included offense of
third-degree assault. (See Doc. 8, Exhibit 3, at 6.)
In affirming Holifield's convictions and sentences by
unpublished memorandum opinion, the Alabama Court of Criminal
Appeals addressed his jury-instruction issue, in relevant
manner, as follows:
On appeal, Holifield's sole argument is that the circuit
court erred by refusing his request for a jury instruction on
third-degree assault as a lesser-included offense of
sodomy. Specifically, Holifield argues that
“there is clear evidence that the victim sustained
superficial injuries sufficient to satisfy the definition of
Assault, Third Degree, even if Holifield's consent
defense was believed.” (Holifield's brief, p. 17.)
Initially, we question whether Holifield's brief on
appeal satisfies Rule 28(a)(10), Ala.R.App.P. Holifield cites
one case that does not support his argument on appeal.
“[W]e are not required to consider matters on appeal
unless they are presented and argued in brief with citations
to relevant legal authority.” Zasadil v. City of
Montgomery, 594 So.2d 231, 231 (Ala.Crim.App. 1991).
Therefore, Holifield's claim is not properly before this
Even so, Holifield is not entitled to relief on this claim.
In Powell v. State, 644 So.2d 1279, 1280-81
(Ala.Crim.App. 1994), the defendant appealed his convicitons
for first-degree rape and first-degree sodomy. In affirming
those conviction, this Court held:
The appellant's only contention on appeal is that the
trial court erred in failing to instruct the jury on the
lesser included offenses of assault in the third degree,
menacing, and harassment.
Here, no instructions on lesser included offenses were
necessary. The appellant admitted that he had sexual
intercourse with M.N. Thus he was either guilty of the
offense or not guilty of anything. Instructions on any lesser
included offenses were not consistent with the
We find it unnecessary to address the issue of whether
assault in the third degree, menacing, and harassment are or
can be lesser included offenses of rape in the first degree
or of sodomy in the first degree. For purposes of a case such
as this, where the act of intercourse is admitted, either
there was consent or there was not.
As Judge Brown stated in Ingram v. State, 570 So.2d
835 (Ala.Crim.App. 1990):
In determining whether one offense is a lesser included
offense of the charged offense, the potential relationship of
the two offenses must be considered not only in the abstract
terms of the defining statutes but must also be considered in
light of the particular facts of each case.
Whether a crime is a lesser offense of another crime is
necessarily decided on a case-by-case basis. A lesser offense
is necessarily included in the elements of the greater
offense and therefore it would be impossible to commit a
greater offense without committing the included offense.
Section 13A-1-9(a)(1), Code of Alabama 1975, defines an
included offense as an offense that is established by proof
of the same or fewer than all the facts required to establish
the commission of the offense charged.
Thus under these facts, the trial court committed no error in
refusing to instruct the jury on third degree assault,
menacing, or harassment.
Here, like in Powell, Holifield admitted to having
oral and anal sex with A.N. Because Holifield was either
guilty of the offense or not guilty of anything, a
lesser-included instruction was not warranted in this case.
Powell, supra. Furthermore, in light of
these facts and circumstances, the circuit court did not
abuse its discretion in refusing the requested instruction.
Based on the foregoing, the judgment of the circuit court is
(Doc. 8, Exhibit 5, at 6-9 (internal quotations marks and
citations from the Powell case omitted)).
Holifield's application for rehearing was overruled on
February 26, 2016 (Doc. 8, Exhibit 7) but because he did not
petition the Alabama Supreme Court for writ of certiorari,
the Alabama Court of Criminal Appeals issued a certificate of
final judgment of affirmance on March 16, 2016 (Doc. 8,
filed a Rule 32 petition in the Circuit Court of Mobile
County, Alabama collaterally attacking his convictions and
sentences on July 15, 2016. (See Doc. 8, Exhibit 10,
ORDER, at 1.) In his Rule 32 petition, Holifield raised the
same claims he raises in the instant habeas corpus petition,
save that he did not raise the jury instruction argument he
made on direct appeal and now also raises in the pleading
filed in this Court. (Compare Id. at 2-9
with Doc. 1). By order dated February 16, 2017, the
trial court summarily denied Holifield's Rule 32 petition
without holding an evidentiary hearing (Doc. 8, Exhibit 10,
Ineffective Assistance of Trial Counsel
To prevail on a claim of ineffective assistance of counsel,
Petitioner must satisfy the two-pronged analysis established
in Strickland v. Washington, 466 U.S. 668 (1984).
Petitioner first must identify specific acts or omissions
that he alleges were not the result of reasonable
professional judgment on counsel's part and show that the
acts or omissions fall “outside the wide range of
professionally competent assistance.” Id. at
690. A bare allegation that prejudice occurred without
specific facts indicating how the petitioner was prejudiced
is not sufficient. Hyde v. State, 950 So.2d 344,
355 (Ala.Crim.App. 2006). If Petitioner can meet this burden,
he must then show that “there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different.” [Strickland v. Washington,
supra, 466 U.S.] at 694. “A reasonable
probability is a probability sufficient to undermine
confidence in the outcome.” Id.
When reviewing a postconviction claim for relief based on
ineffective assistance of counsel, a court must indulge a
strong presumption that  counsel's conduct falls within
a wide range of reasonable professional assistance. See
Strickland, 466 U.S. at 689. “An error by counsel,
even if professionally unreasonable, does not warrant setting
aside the judgment of a criminal proceeding if the error had
no effect on the judgment.” Id. at 691. There
is a strong presumption that trial counsel's conduct
falls within a wide range of professional assistance.
Hunt v. State, 940 So.2d 1041, 1059 (Ala.Crim.App.
2005). This presumption is similar to the presumption of
innocence in a criminal trial. Id. Here, Holifield
makes various assertions about why his trial and appellate
counsel were constitutionally ineffective.
Failure to object to the Court striking a deaf juror for
The Petitioner contends that his counsel should have objected
to the Court striking a juror with severely-impaired hearing,
arguing that he was prejudiced because the jury pool did not
represent the physically disabled citizens of Mobile County.
However, as the State points out in its response, which is
borne out by the portion of the record cited by the
Petitioner, the struck juror was afflicted with such poor
hearing as to be unqualified under law to perform jury
service. See Ala. Code § 12-16-60(a) (Rep. 2015).
Petitioner's counsel acted properly in identifying an
unqualified juror, who was then properly struck from the
venire by the Court. Accordingly, this claim is wholly
without merit and due to be summarily dismissed. R.32.7(d).
Failure to challenge a potential juror for
The Petitioner contends his counsel should have challenged
for cause potential juror Kristen Jordan who is related to
the Mobile County District Attorney, Ashley Rich. The
Petitioner cites Ala. Code § 12-16-150(a)(4) which
states: “It is good ground for challenge of a juror by
either party: . . . (4) That he is connected by consanguinity
within the ninth degree, or by affinity within the fifth
degree . . . with the prosecutor or the person alleged to be
injured.” However, Petitioner misinterprets §
It is not ground for challenge for cause that a juror is
related to counsel in a criminal case. Washington v.
State, 58 Ala. 355 (1877). That a juror is related to
the district attorney or to the prosecuting attorney is no
ground for challenge for cause. Frost v. State, 225
Ala. 232, 142 So. 427 (1932). As used in Alabama Code 1975,
Section 12-16-150, “prosecutor” means “one
who instigates prosecution by making an affidavit charging a
named person with the commission of a penal offense, on which
a warrant is issued, or an indictment or accusation is based,
” Wright v. State, 40 Ala.App. 263, 269, 111
So.2d 588, cert. denied, 269 Ala. 131, 111 So.2d 596 (1958).
“Prosecutor” as used in the statute containing
the statutory challenges for cause does not mean the district
attorney prosecuting the accused. Acoff v. State, 50
Ala.App. 206, 278 So.2d 210 (1973).
Howard v. State, 420 So.2d 828, 831 (Ala.Crim.App.
1982). Accordingly, there was no proper basis for
Holifield's counsel to challenge this juror for cause.
Hooks v. State, 21 So.3d 772, 785 (Ala. 2008)
(“An attorney's failure to raise a meritless
argument . . . cannot form the basis of a successful
ineffective assistance of counsel claim because the result of
the proceeding would not have been different had the attorney
raised the issue.”) (quoting United States v.
Kimler, 167 F.3d 889, 893 (5th Cir. 1999)). This claim
is due to be dismissed under Ala.R.Crim.P. 32.7(d).
Failure to move for a mistrial due to alleged private
contact between the prosecutor and a potential
Petitioner speculates that the attorney prosecuting his cases
had private contact with a potential juror because the
assistant prosecutor informed the Court that said potential
juror was related to the District Attorney. Petitioner argues
that his counsel should have divined this “fact”
and moved for a mistrial and, failing to do so was
ineffective. As pled, this claim is nonsense, and Petitioner
fails to raise a material issue of law or fact that
would entitle him to relief. Therefore, this claim is due to
be dismissed under Ala.R.Crim.P. 32.7(d).
Failure to request jury charge.
Petitioner contends that the Court failed to instruct the
jury to consider the charges against him independently of
each other. He asserts that his counsel failed to object to
that error and failed to request the Court to properly charge
the jury, arguing that his counsel's error allowed the
jury to find him guilty of one charge based on the evidence
of another charge. As the State points out in its response,
the Court instructed the jury on the elements of each offense
separately, each time instructing the jury that they could
not return a guilty verdict unless the State proved beyond a
reasonable doubt all of the elements of the offense. The
Court also made it clear in its instructions concerning the
verdict forms that the jury was to consider each offense
separately. Accordingly, this claim is directly refuted by
the record and due to be dismissed under Ala.R.Crim.P.
Ineffective Assistance of Appellate Counsel
The Petitioner alleges that he was denied the effective
assistance of appellate counsel because only one issued was
raised for review in his direct appeal. The Petitioner
contends that appellate counsel should have raised the
following additional issues on direct appeal: the
introduction, over his objection, of his prejudicial
statement to law enforcement at the time of his arrest; the
exclusion of evidence concerning the victim's prior
sexual history; the denial ...