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Glenn v. Jones

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

July 27, 2018

CINQUINCY GLENN, # 261238, Petitioner,
v.
KARLA JONES, et al., Respondents.

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          WALLACE CAPEL, JR., CHIEF UNITED STATES MAGISTRATE JUDGE

         This 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.[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.

         I. BACKGROUND

         On 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 at 61-62.

         Glenn 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 On September 16, 2011, the Alabama Court of Criminal Appeals affirmed Glenn's conviction and sentence by unpublished memorandum opinion.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. No. 30-8.

         On June 14, 2012, Glenn filed a pro se Rule 32 petition[2] with the trial court accompanied by a request to proceed in forma pauperis.[3] 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.

         The 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.

         Glenn 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.

         On January 28, 2014, Glenn initiated this federal habeas action by filing a § 2254 petition[4] asserting the following claims:

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.

         For the 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.

         II. DISCUSSION

         A. Claims of Trial Court Error

         Glenn 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.

         “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.” 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.[5]These procedural bars are firmly established and regularly followed by Alabama appellate courts.[6] 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.

         A 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.

         One of 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.

         As for 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.[7] 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.

         B. Habeas Review of Claims Adjudicated on Merits by State Court

         “When 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 (2000).

         A state 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.

         “Objectively 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 ...


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