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Holifield v. Stewart

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

June 15, 2018

ERIC LAMAR HOLIFIELD, AIS 197006 Petitioner,



         Eric 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 The Alabama Court of Criminal Appeals affirmed Holifield's convictions and sentences by unpublished memorandum opinion issued on February 5, 2016.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 The Alabama Court of Criminal Appeals affirmed the trial court's judgment by unpublished memorandum decision issued on August 11, 2017.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).

         In his 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;[1] (3) his appellate counsel provided ineffective assistance;[2] 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.)

         This 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).


         During 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.[3] (See Id. at 149-67)[4].

         When 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).

         Officer 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, [5]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 218)[6].

         Arlene 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).

         Mike 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).

         Defense 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, [7] 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).

         The 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).

         On 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).

         On 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.[8] 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 Court.
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 appellant's defense.
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 affirmed.

(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, 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. (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, ORDER):

         I. 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.

         A. Failure to object to the Court striking a deaf juror for cause.

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).

         B. Failure to challenge a potential juror for cause.

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 § 12-16-150(a)(4).
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).

         C. Failure to move for a mistrial due to alleged private contact between the prosecutor and a potential juror.

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).

         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. 32.7(d).

         II. 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 ...

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