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Price v. Bolling

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

August 3, 2018

JAMES ANTHONY PRICE, Petitioner,
v.
LEON BOLLING, et al., Defendants.

          ORDER

          W. HAROLD ALBRITTON SENIOR UNITED STATES DISTRICT JUDGE.

         This case is now before the court on the Recommendation of the Magistrate Judge entered on March 28, 2018 (Doc. #58) and the Petitioner's Objection filed on May 24, 2018 (Doc. #66). Through newly retained counsel, § 2254 petitioner Price has filed Objections to the Recommendation that Price's § 2254 petition be denied. The only specific claims argued by counsel in the Objections are (1) the claim that Price's trial counsel rendered ineffective assistance by failing to object to using Price's 1987 Georgia conviction for possession of cocaine to enhance his sentence under Alabama's HFOA on the ground that the conduct underlying the Georgia conviction would not constitute a felony under Alabama law; and (2) the claim that Price's trial counsel rendered ineffective assistance by failing to object to and preserve for appeal a challenge to the trial court's failure to hold a sentencing hearing.

         In his pro se objections (Doc. #66-2), Price challenges the Recommendation's findings and conclusions regarding all 6 claims in his habeas petition. Below, each of Price's claims is noted and is then followed by a summary of how each claim was addressed in the Recommendation.

         1. Price claims his trial counsel rendered ineffective assistance by withdrawing a request for a preliminary hearing without his consent.

         Although Price cites to case law containing general propositions about the possible value preliminary hearings may have for criminal defendants, he fails to explain what he intended a preliminary hearing to accomplish in his case, and he does not suggest how a preliminary hearing would have assisted in his defense.

         2. Price claims his trial counsel rendered ineffective assistance by failing to investigate and challenge the use of his out-of-state felony convictions from Georgia and Florida to enhance his sentence under Alabama's Habitual Felony Offender Act (“HFOA”). According to Price, the records from his Georgia and Florida convictions submitted by the State to support the HFOA enhancement failed to comply with the certification requirements under Alabama law for proving out-of-state convictions set forth in § 12-21-70, Ala. Code 1975, and Ala. R. Civ. P. 44(a)(1).

         Price's claim that his trial counsel was ineffective for failing to investigate and challenge the admission of the records from his out-of-state convictions is premised on the assertion that the documents submitted by the State were inadmissible under Alabama law. However, because the state appellate court upheld the admissibility of the evidence, see Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“federal habeas corpus relief does not lie for errors of state law”), Price cannot demonstrate that he was prejudiced by his trial counsel's failure to investigate his out-of-state convictions and interpose an objection to their use on the grounds argued by Price. See Debardelaben v. Price, 2015 WL 1474615, at *26 (M.D. Ala. Mar. 31, 2015) (denying habeas relief on ineffective assistance of counsel claims related to admissibility and use of petitioner's prior federal convictions for sentence enhancement under Alabama's HFOA, because the federal district court must defer to state law determinations made by the Alabama Court of Criminal Appeals finding that copies of the prior federal convictions were properly certified under Alabama law); see also Cook v. Alameida, 232 F.3d 893, at *1 (9th Cir. 2000) (Table, Text in WESTLAW) (because state appellate court upheld admissibility under state law of exhibit containing documents related to petitioner's prior conviction, petitioner could not show he was prejudiced by his counsel's failure to object to admissibility of prior conviction and was not entitled to habeas relief on claim that counsel rendered ineffective assistance).

         3. Price claims that his trial counsel rendered ineffective assistance by failing to object to and preserve for appeal a challenge to the trial court's failure to hold a sentencing hearing, which he says violated Ala. R. Crim. P. 26.6(b)(1).

         After the jury returned its guilty verdict, Price's trial counsel requested a sentencing hearing. The trial court, however, declined that request contingent upon the State's presentation of certified copies of Price's prior convictions, which the State then produced. The record reflects that the State gave Price written notice prior to trial that it intended to invoke Alabama's HFOA using these prior convictions if Price was convicted. Price was convicted of two counts of first-degree robbery in violation of § 13A-8-41(a)(1), Ala. Code 1975. First-degree robbery is a Class A felony. See § 13A-8-41(c), Ala. Code 1975. Price had three prior felony convictions, one of which was a 1996 Alabama conviction for the Class A felony of first-degree robbery. Under § 13A-5-9(c)(4) of Alabama's HFOA, a defendant previously convicted of any three felonies, where one or more of the prior convictions was a Class A felony, “must be punished by imprisonment for life without parole” upon conviction of a Class A felony. § 13A-5-9(c)(4), Ala. Code 1975. Upon Price's conviction, the trial court had no discretion to impose a sentence other than life imprisonment. Price does not demonstrate that he was entitled to a sentencing hearing under Ala. R. Crim. P. 26.6(b)(1).

         Moreover, Price presented no evidence establishing that he was prejudiced because of the trial court's failure to hold a sentencing hearing. A hearing regarding Price's prior Georgia and Florida felony convictions would only have established that those convictions could be used to enhance Price's sentence under Alabama's HFOA, and Price does not challenge the usability of his 1996 Alabama robbery conviction for the same purpose. For purposes of Strickland, Price fails to make a showing of how the lack of a sentencing hearing prejudiced him.

         4. Price claims his trial counsel rendered ineffective assistance by failing to object to using his 1987 Georgia conviction for possession of cocaine to enhance his sentence under Alabama's HFOA on the ground that the conduct underlying the Georgia conviction would not constitute a felony under Alabama law. According to Price, his 1987 Georgia conviction was for “possession of cocaine by consumption.” He argues that the consumption of a controlled substance, standing alone, is not felonious conduct under Alabama law and that his trial counsel should have objected on this ground to using his Georgia conviction to enhance his sentence under Alabama's HFOA.

         Price states his Georgia conviction was predicated entirely on a urinalysis test result showing the presence of cocaine in his urine sample. He argues that the conduct for which he was convicted in the Georgia court amounted solely to having been found to have consumed cocaine (as indicated by a urine test) and that, under Alabama law, there is no felony statute criminalizing the mere consumption of cocaine.

         The Georgia offense to which Price pleaded guilty was possession of cocaine. Price points to no Georgia statute addressed to “possession of cocaine by consumption, ” and he presents no evidence that the controlled substance possession criminalized under the Georgia Controlled Substances Act is defined differently than the controlled substance possession made a felony under Alabama law. While Georgia courts have held that the presence of cocaine in an individual's urine or other body fluids may constitute circumstantial or indirect evidence that the individual possessed cocaine, the Georgia courts view such evidence as bearing on the question whether the individual ingested cocaine some time in the immediate past before the urine sample was given “and had therefore possessed the cocaine he subsequently ingested.” Green v. State, 260 Ga. 625, 625-26, 398 S.E.2d 360, 361-62 (1990) (emphasis added); see also Aldridge v. State, 237 Ga.App. 209, 212, 515 S.E.2d 397, 401 (1999) (presence of drugs in defendant's system authorized jury to infer that defendant previously possessed the drugs ingested); West v. State, 288 Ga.App. 566, 567, 654 S.E.2d 463, 464-65 (2007) (presence of methamphetamine in urine was circumstantial evidence that defendant knowingly possessed the drug, which, in addition to defendant's admission to police that he had used methamphetamine, would support jury verdict finding that defendant possessed methamphetamine before ingesting it).

         Thus, whether or not the Georgia cocaine possession charge against Price was based in part on the test results of a urine sample indicating the presence of cocaine, any conviction for that offense-including Price's guilty plea conviction-is a conviction for having actually possessed cocaine (which, as in Price's case, may have been subsequently ingested). Price's conviction, then, was not for merely having cocaine detected in his urine sample; it was premised on his havingin fact possessed cocaine, which he may have then ingested and which may have then beendetected in his urine. This “drug possession before ingestion” criminalized under Georgia's controlled substance laws does not differ from the drug possession criminalized under ...


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