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Tate v. State

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

June 27, 2018

RODERICK JOSEPH TATE, Petitioner,
v.
STATE OF ALABAMA, Respondent.

          REPORT AND RECOMMENDATION

          WILLIAM E. CASSADY UNITED STATES MAGISTRATE JUDGE

         This cause is before the Magistrate Judge for issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b) and S.D. Ala. Gen. L.R. 72(a)(2)(R), on Petitioner Roderick Joseph Tate's Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (“2254 petition”), (Doc. 1), which was filed on April 17, 2017. Respondent State of Alabama filed its Answer on August 14, 2017. (Doc. 7). For the reasons stated below, this undersigned recommends Petitioner's 2254 petition be DENIED.

         PROCEDURAL BACKGROUND

         On April 9, 2013, after a bench trial, Tate was adjudicated guilty for failing to register a valid address with the Baldwin County Sheriff's Department, which was a violation of § 15-20A-007 of the Code of Alabama. (Doc. 7-2, at 11, 41, & 58; Doc. 7-4, at 16-17). Tate was sentenced to a two hundred forty (240) month, straight imprisonment. (Doc. 7-2, at 71-73). On August 1, 2013, a Notice of Appeal to the Alabama Court of Criminal Appeals was filed, and Tate's trial counsel, Denise Baschab, Esquire, filed a motion to withdraw as Tate's counsel, which was granted. (Doc. 7-2, at 74 & 76-77). Lonnie Mikul, Esq., was appointed to represent Tate during his appeal. (Doc. 7-2, at 80). Mr. Mikul filed a no merit brief pursuant to Anders v. State of California, 386 U.S 738 (1967), and Tate filed a pro se brief with the Alabama Court of Criminal Appeals. (Doc. 7-6, at 2-21; Doc. 7-7, at 2-8). On June 6, 2014, the Alabama Court of Criminal Appeals affirmed the judgment of the trial court. (Doc. 7-8, at 2-4). On July 11, 2014, Tate's application for rehearing was overruled by the Alabama Court of Criminal Appeals, (Doc. 7-9, at 2), and on August 8, 2014, the Alabama Supreme Court denied his petition for writ of certiorari and the certificate of judgment was issued. (Doc. 7-10, at 2).

         On December 19, 2014, Tate filed his Petition for Relief from Conviction or Sentence (Pursuant to Rule 32, Alabama Rules of Criminal Procedure) (“Rule 32 petition”), (Doc. 7-13, at 3 & 6-44), in which he argued his trial counsel was ineffective because his trial counsel failed to “effectively inform[ Tate] of his right to testify in his own defense;” failed to “present a defense witness, ” Jackie Reed, his sister; failed to take “appropriate measures to secure trial attendance of all persons alleged to have provided evidence against him” so he could “confront his accuser[s], ” specifically Percy Jackson and Christopher James; and failed to “conduct[ ] a reasonable investigation into [the Sex Offender Registration and Notification Act's] provisions, ” (Doc. 7-13, at 6-44). The Baldwin County Circuit Court granted Tate a hearing on his Rule 32 petition, which was held on June 17, 2015, (Doc. 7-13, at 81), and denied Tate's motion to appoint counsel to assist him at the hearing, (Doc. 7-13, at 67-68 & 72). The presiding judge denied Tate's Rule 32 petition and found Tate's trial counsel was not deficient, and Tate did not suffer prejudice from his trial counsel's alleged deficiencies. (Doc. 7-13, at 81). On September 2, 2015, Tate appealed the trial court's ruling on his Rule 32 petition to the Alabama Court of Criminal Appeals, (Doc. 7-13, at 96-97 & 99-100), which affirmed the judgment of the trial court by memorandum on February 12, 2016, (Doc. 7-16, at 2-8). Tate filed an application for rehearing that the Alabama Court of Criminal Appeals overruled on April 1, 2016. (Doc. 7-17, at 2). Finally, Tate filed a petition for writ of certiorari to the Alabama Supreme Court that was denied, (Doc. 7-18, at 2), and as a result, the Alabama Court of Criminal Appeals entered a certificate of judgment on August 12, 2016, (Doc. 7-19, at 2).

         Tate filed the instant 2254 petition on February 24, 2017. (Doc. 1, at 21), see Adams v. United States, 173 F.3d 1339, 1341 (11th Cir. 1999) (“A pro se prisoner's notice of appeal is considered to be filed on the date that the prisoner delivers the notice to the prison authorities for mailing.”), and, therefore, his 2254 petition is timely filed within the Antiterrorism and Effective Death Penalty Act's (“AEDPA”) one-year limitation period, see 28 U.S.C. § 2244(d)(1), [1] and is not successive.

         DISCUSSION

         Tate claims his trial counsel provided ineffective assistance and in support thereof claims his trial counsel failed to inform him of his right to testify at trial and failed to call Jackie Reed, Tate's sister, as a defense witness at his trial, and the Baldwin County Circuit Court erroneously denied his request to appoint counsel for Tate's Rule 32 petition hearing to assist him to present his claim that he suffered from a mental disability. (Doc. 1).

         For claims that were adjudicated on the merits by the state court, § 2254(d) of AEDPA restricts the issuance of habeas corpus to claims that “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, ” 28 U.S.C. § 2254(d)(1), or claims that “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, ” 28 U.S.C. § 2254(d)(2).

         “A state-court decision will certainly be contrary to our clearly established precedent if the state court applied a rule that contradicts the governing law set forth in our cases.” Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 1519, 146 L.Ed.2d 389 (2000). “A state-court decision will be contrary to this Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.” Id. at 406, 120 S.Ct. at 1519-20.

         For Tate's claims of ineffective assistance of counsel, the Supreme Court's decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), controls. See Williams, 529 U.S. at 390, 120 S.Ct. at 1511 (“Williams contends that he was denied his constitutionally guaranteed right to the effective assistance of counsel when his trial lawyers failed to investigate and to present substantial mitigating evidence to the sentencing jury. . . . [T]he merits of his claim are squarely governed by our holding in Strickland v. Washington.”).

         In order to establish a claim of ineffective assistance of counsel:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Six Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Strickland, 466 U.S. at 687, 104 S.Ct. at To establish ineffectiveness, “the defendant must show that counsel's representation fell below an objective standard of reasonableness.” Id., 466 U.S. at 688, 104 S.Ct. at 2064. “The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” Id., 466 U.S. at 688, 104 S.Ct. at 2065. To establish prejudice, “[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id., 466 U.S. at 694, 104 S.Ct. at 2068. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. “Where the highly deferential standards mandated by Strickland and AEDPA both apply, they combine to produce a doubly deferential form of review that asks only ...


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