United States District Court, M.D. Alabama, Southern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
WALLACE CAPEL, JR., CHIEF UNITED STATES MAGISTRATE JUDGE
case is before the court on a pro se petition for
writ of habeas corpus under 28 U.S.C. § 2254 filed by
Alabama inmate Cinquincy Glenn (“Glenn”). Doc.
No. 1.Glenn challenges his convictions for
first-degree rape and first-degree sodomy obtained in a 2010
jury trial in the Circuit Court of Houston County. That court
sentenced Glenn to 37 years in prison.
October 7, 2010, a Houston County jury found Glenn guilty of
one count of first-degree rape, in violation of §
13A-6-61(a)(3), Ala. Code 1975, and one count of first-degree
sodomy, in violation of § 13A-6-63(a)(3), Ala. Code
1975. Doc. No. 30-9 at 48-49. On November 5, 2010, the trial
court sentenced Glenn as a habitual felony offender to
concurrent terms of 37 years' imprisonment. Doc. No. 30-9
appealed, asserting that the State's evidence was
insufficient to support his rape conviction. See
Doc. No. 30-5. On September 16, 2011, the Alabama Court of
Criminal Appeals affirmed Glenn's conviction and sentence
by unpublished memorandum opinion. Doc. No. 30-7. Glenn did
not apply for rehearing or seek certiorari review by the
Alabama Supreme Court. On October 5, 2011, the Alabama Court
of Criminal Appeals issued a certificate of judgment. Doc.
14, 2012, Glenn filed a pro se Rule 32
petition with the trial court accompanied by a
request to proceed in forma pauperis. See Doc.
No. 30-1 at 15 & 35- 37. In his Rule 32 petition, Glenn
claimed that his trial counsel was ineffective for failing to
request lesser-included offense instructions; for failing to
object when the victim stated during her testimony that he
raped her; for failing to object to the trial court's
behaving “like a prosecutor” as well as a judge;
for failing to request that the jury be polled; and for
failing to object to the jury's requests for further
instruction on the definition of penetration and for a copy
of the jury charge. Doc. No. 30-1 at 17-25. Glenn also
claimed that the trial court erred by failing to sua
sponte give lesser-included offense instructions; by
allowing the victim to state that he raped her; by failing to
sua sponte poll the jury; and by failing to sua
sponte declare a mistrial due to a fatal variance
between the indictment and the evidence because penetration
was not proven. Doc. No. 30-1 at 26-35.
trial court held an evidentiary hearing on Glenn's Rule
32 petition on November 15, 2012. Doc. No. 30-1 at 68-96.
Glenn's trial counsel testified at the hearing, and the
trial court also heard argument from Glenn and the State. On
December 4, 2012, the trial court entered an order denying
Glenn's Rule 32 petition. Doc. No. 30-1 at 56-58.
appealed, and by memorandum opinion entered on July 12, 2013,
the Alabama Court of Criminal Appeals affirmed the trial
court's denial of his Rule 32 petition. Doc. No. 30-2.
Glenn's application for rehearing was overruled, after
which he filed a petition for writ of certiorari in the
Alabama Supreme Court. Doc. No. 30-3. On November 15, 2013,
the Alabama Supreme Court denied Glenn's petition for
writ of certiorari. Doc. No. 30-4. A certificate of judgment
issued on that same date. Id.
January 28, 2014, Glenn initiated this federal habeas action
by filing a § 2254 petition asserting the following
1. The trial court erred by (a) allowing the victim to state
during her testimony that Glenn raped her and (b) failing to
give lesser-included offense instructions.
2. His trial counsel rendered ineffective assistance by
failing to (a) o b j e c t when the victim stated that he
raped her, (b) request lesser-included offense instructions,
and (c) preserve the issue of the sufficiency of the evidence
based on the lack of medical and scientific evidence showing
proof of penetration.
Doc. No. 1 at 7-9.
reasons that follow, it is the recommendation of the
Magistrate Judge that Glenn's § 2254 petition be
denied without an evidentiary hearing and that this case be
dismissed with prejudice.
Claims of Trial Court Error
claims that the trial court erred by (a) allowing the victim
to state during her testimony that he raped her (Doc. No. 1
at 7) and (b) failing to give lesser-included offense
instructions (Doc. No. 1 at 9). Glenn raised the first of
these claims in his Rule 32 petition, where it was rejected
by the trial court on the ground it was not within the
province of the court to inject itself into the trial. Doc.
No. 30-1 at 57. Glenn pursued the claim in his Rule 32
appeal, where the Alabama Court of Criminal Appeals found the
claim was procedurally barred under Rules 32.2(a)(3) and (5)
of the Alabama Rules of Criminal Procedure because it could
have been raised at trial and on direct appeal, but was not.
See Ala.R.Crim.P. 32.2(a)(3) & (5). Doc. No.
30-2 at 5-6.
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.”
Atkins v. Singletary, 965 F.2d 952, 955 (11th Cir.
1992); see Marek v. Singletary, 62 F.3d 1295,
1301-02 (11th Cir. 1995). The Alabama Court of Criminal
Appeals' application of Ala.R.Crim.P. 32.2(a)(3) and (5)
to Glenn's claim of trial court error constituted an
adequate and independent state procedural ground for denying
relief.These procedural bars are firmly
established and regularly followed by Alabama appellate
courts. See, e.g., Williams v. State, 782
So.2d 811, 841 (Ala.Crim.App.2000); Brownlee v.
Haley, 306 F.3d 1043, 1065-66 (11th Cir. 2002).
Consequently, Glenn's claim here is procedurally
defaulted. See Marek, 62 F.3d at 1301-02.
habeas petitioner can overcome a procedural default by
showing both “cause” for the default and
resulting prejudice, Murray v. Carrier, 477 U.S.
478, 488 (1986), or by 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 turns
on whether the petitioner can show that an 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.
Glenn's § 2254 claims is that his trial counsel was
ineffective for failing to object when the victim stated
during her testimony that he raped her. See Doc. No.
1 at 7. Assuming Glenn asserts this allegation of ineffective
assistance as “cause” for his procedural default
of his claim of trial court error, Glenn, as discussed below
in Part II.A.1 of this Recommendation, demonstrates no merit
to his ineffective assistance claim. An ineffective
assistance claim must be meritorious to serve as cause to
overcome the procedural default of another claim. Edwards
v. Carpenter, 529 U.S. 446, 451 (2000). Because, as
discussed below, Glenn does not show that his counsel was
ineffective for failing to object when the victim stated he
raped her, Glenn does not demonstrate cause excusing the
default of his claim that the trial court erred by allowing
the victim to state that he raped her.
Glenn's claim that the trial court erred by failing to
give lesser-included offense instructions (see Doc.
No. 1 at 9), such a claim could have, and should have, been
raised at trial and on direct appeal. However, in deciding
Glenn's Rule 32 appeal, the Alabama Court of Criminal
Appeals did not deny relief on this claim based on an
applicable Rule 32 procedural bar (e.g., Ala.R.Crim.P.
32.2(a)(3) and (5)). Instead, the court rejected the claim as
lacking merit and as insufficiently pleaded under Rules
32.6(b) and 32.3 of the Alabama Rules of Criminal
Procedure. Eleventh Circuit precedent holds that a
ruling by an Alabama court under Rule 32.6(b) or 32.3 is an
adjudication “on the merits”. Borden v.
Allen, 646 F.3d 785, 812 (11th Cir. 2011); Powell v.
Allen, 602 F.3d 1263, 1272 (11th Cir. 2010). Because
this claim was denied on the merits and not on procedural
grounds, and because it is linked anyway with Glenn's
§ 2254 claim that his trial counsel was ineffective for
failing to request lesser-included offense instructions, this
claim will be discussed below in this court's
consideration of Glenn's § 2254 claims adjudicated
on the merits by the state court.
Habeas Review of Claims Adjudicated on Merits by State
it enacted the Antiterrorism and Effective Death Penalty Act
of 1996 (‘AEDPA'), Congress significantly limited
the circumstances under which a habeas petitioner may obtain
relief.” Hardy v. Allen, 2010 WL 9447204, at
*7 (N.D. Ala. Sep. 21, 2010). To prevail on a § 2254
claim adjudicated on the merits by the state courts, a
petitioner must show that a decision by the state courts was
“contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the
Supreme Court of the United States, ” or 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)(1) 6 (2); see
Williams v. Taylor, 529 U.S. 362, 404-05 & 412-13
court's decision is “contrary to” federal law
either if it fails to apply the correct controlling
authority, or if it applies the controlling authority to a
case involving facts “materially
indistinguishable” from those in a controlling case,
but nonetheless reaches a different result.
Williams, 529 U.S. at 404-06; Bell v. Cone,
535 U.S. 685, 694 (2002). A state court's decision is an
“unreasonable application” of federal law if it
either correctly identifies the governing rule but then
applies it to a new set of facts in a way that is objectively
unreasonable, or it extends or fails to extend a clearly
established legal principle to a new context in a way that is
objectively unreasonable. Williams, 529 U.S. at 407.
unreasonable” means something more than an
“erroneous” or “incorrect”
application of clearly established law, and a reviewing
federal court may not substitute its judgment for the state
court's even if the federal court, in its own independent
judgment, disagrees with the state court's decision.
See Williams, 529 U.S. at 411; Lockyer v.
Andrade,538 U.S. 63, 76 (2003). The reviewing court
“must determine what arguments or theories supported or
. . . could have supported[ ] the state court's decision;
and then it must ask whether it is possible fairminded
jurists could disagree that those arguments or theories are
inconsistent with the holding in a prior decision of [the
Supreme] Court.” Harrington v. Richter, 562
U.S. 86, 102 (2011). “This is a ‘difficult to
meet,' and ...