United States District Court, N.D. Alabama, Northeastern Division
LAMAR W. ANDERSON, Petitioner,
WARDEN JONES and ATTORNEY GENERAL OF THE STATE OF ALABAMA, Respondents.
OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE.
magistrate judge filed a report and recommendation on July 2,
2018, recommending that the court dismiss petitioner's 28
U.S.C. § 2254 petition for habeas corpus relief. (Doc.
9). Petitioner filed objections to the report and
recommendation on July 24, 2018. (Doc. 13).
petitioner reasserts his claim that his trial counsel was
ineffective for failing to move the court to disqualify
Limestone District Attorney Brian Jones. (Doc. 13 at 1). The
petitioner claims that Jones represented him in a criminal
proceeding in 2006 or 2007. (Id.). Petitioner states
that he and Jones “had problem[s]” that nearly
“turn[ed] into a fight, ” but an officer
intervened. (Id.). Petitioner claims that after the
argument, Jones “promise[d]” petitioner he would
be sent to prison. (Id.).
did not include these specific factual allegations in his
Rule 32 petition or in his appeal and the Alabama Court of
Criminal Appeals determined that he failed to cite any basis
for a conflict of interest concerning Jones or any specific
claim of prejudice. (Doc. 5-3 at 9-23; Doc. 5-4 at 1-14; Doc.
5-6 at 4-5). Neither did petitioner set forth these factual
allegations in the present petition and only vaguely alleged
the basis of such a claim well after filing the petition.
(Doc. 8). In his objections, the petitioner makes only a
conclusory allegation that his argument with Jones six years
earlier, in an unrelated matter, constituted a conflict of
interest and fails to show how he was prejudiced by it. (Doc.
13 at 1).
Court of Criminal Appeals' conclusion that petitioner
failed to sufficiently plead an ineffective assistance of
counsel claim on this ground was not “contrary
to” or an “unreasonable application of, clearly
established Federal law.” 28 U.S.C. § 2254(d).
Accordingly, petitioner is not entitled to relief on this
the petitioner argues that semen found on the victim's
vaginal swabs and panties did not belong to him and shows
that someone else murdered the victim. (Doc. 13 at 1-2). The
petitioner claims that his counsel “did not fight this
point.” (Id. at 2).
appears petitioner restates his claim that trial counsel was
ineffective for failing to discover the State withheld
exculpatory DNA evidence that someone else committed the
murder. The Court of Criminal Appeals held that petitioner
failed to plead or provide any indication of prejudice
concerning this claim. (Doc. 5-6 at 5). The court also found
that petitioner's trial counsel submitted an affidavit
that he received all of the DNA evidence in the case.
attached to his objections an exhibit which states that the
victim's vaginal swabs and panties were examined and
analyzed for the presence of semen “with positive
results.” (Doc. 13 at 3). However, this exhibit does
not establish that someone other than petitioner murdered the
petitioner has not shown either deficient performance or
prejudice concerning this claim under Strickland v.
Washington, 466 U.S. 668 (1984). So, the Court of
Criminal Appeals' conclusion that counsel was not
deficient on this ground was not “contrary to” or
an “unreasonable application of, clearly established
Federal law” or unreasonable in light of the evidence
presented in the state court. 28 U.S.C. § 2254(d).
Petitioner's claim is due to be denied.
petitioner appears to argue again that his trial attorneys
were ineffective because they failed to move for dismissal of
the burglary charge against him. (Doc. 13 at 6-9). However,
the Alabama Court of Criminal Appeals found that the
petitioner was not prejudiced on this ground because he was
convicted of murder rather than capital murder. (Doc. 5-6 at
5). Indeed, the petitioner does not dispute that on June 19,
2013, his trial counsel in fact moved to dismiss the capital
murder charge because the unoccupied school where the victim
was found was not a building within the meaning of the
burglary statute. See Mot. to Dismiss Count One of
the Indictment, Alabama v. Anderson,
44-CC-2012-000368.00 (Limestone County Circuit Court, June
19, 2013), Doc. 112. So, count one of the indictment was
amended from capital murder to murder removing the burglary
element and petitioner pleaded guilty to the amended charge.
(Doc. 5-2 at 13). Based on the foregoing, the Alabama Court
of Criminal Appeals' determination was not
“contrary to” or an “unreasonable
application of” Strickland or unreasonable in
light of the evidence presented in the state court
proceedings. Thus, petitioner is not entitled to relief on
carefully considered de novo all the materials in
the court file, including the report and recommendation and
the petitioner's objections, the court
ADOPTS the report and
ACCEPTS the recommendation. The court finds
that the petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254 in the above-styled cause is due to be
denied and dismissed with prejudice.
court may issue a certificate of appealability “only if
the applicant has made a substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2).
To make such a showing, a “petitioner must demonstrate
that reasonable jurists would find the district court's
assessment of the constitutional claims debatable or wrong,
” Slack v. McDaniel, 529 U.S. 473, 484 (2000),
or that “the issues presented were adequate to deserve
encouragement to proceed further.” Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003) (internal quotations
omitted). This court finds petitioner's claims do not
satisfy either standard. Accordingly, because the petition
does not present issues that are debatable among jurists of
reason, a certificate of appealability is also due to be
DENIED. See 28 U.S.C. §
2253(c); Slack, 529 U.S. at 484-85; Rule 11(a),
Rules Governing § 2254 Proceedings.
court will enter a ...