Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Dorsey v. Myers

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

September 21, 2018

TIMOTHY RONALD DORSEY, # 187732, Petitioner,
v.
WALTER MYERS, et al., Respondents.

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          Susan Russ Walker 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 Timothy Ronald Dorsey on September 7, 2016. Doc. 1.[1]

         I. BACKGROUND AND PROCEDURAL HISTORY

         On January 28, 2015, a Montgomery County jury found Dorsey guilty of domestic violence in the first degree, in violation of § 13A-6-130, Ala. Code 1975. Doc. 19-1 at 49; Doc. No. 19-3 at 105. The State's evidence showed that Dorsey choked his girlfriend and severely beat her with, among other things, a long metal rod used as a door stopper, resulting in her hospitalization for four days. See Doc. 19-1 at 9; Doc. 19-3 at 24-37 & 59-64. On March 10, 2015, the trial court sentenced Dorsey as a habitual offender with three prior felony convictions to life imprisonment. Doc. 19-3 at 108-13.

         Dorsey appealed, arguing there was insufficient evidence to support his conviction. Doc. 19-5. On August 7, 2015, the Alabama Court of Criminal Appeals affirmed Dorsey's conviction and sentence by unpublished memorandum opinion. Doc. 19-7. Dorsey applied for rehearing, which was overruled. Docs. 19-8 & 19-9. On October 16, 2015, the Alabama Supreme Court denied Dorsey's petition for writ of certiorari. Docs. 19-10 & 19-11.

         On December 31, 2015, Dorsey filed a pro se petition in the trial court seeking post-conviction relief under Rule 32 of the Alabama Rules of Criminal Procedure. Doc. 19-12. Dorsey raised claims of ineffective assistance of counsel, alleging that his trial counsel was ineffective for failing to object to (1) the trial court's failure to swear the jury venire before voir dire; (2) the State's use of alleged hearsay evidence offered through forensic scientist Teryn Bostick; and (3) the State's failure to prove beyond a reasonable doubt the prior convictions used to enhance his sentence as a habitual felony offender. Id.

         After receiving the State's response, the trial court summarily denied Dorsey's Rule 32 petition on May 11, 2016, finding that Dorsey failed to meet his burden of showing ineffective assistance of counsel. Docs. 19-14 & 19-15. Dorsey did not appeal from the trial court's judgment. A copy of the trial court's order was mailed to Dorsey at the Easterling Correctional Facility but was returned to the circuit clerk as undeliverable. [2]Doc. 19-16.

         On September 7, 2016, Dorsey initiated this habeas action by filing a § 2254 petition reasserting his claims, raised in his December 31, 2015 Rule 32 petition, that his trial counsel was ineffective for failing to object to:

(1) the trial court's failure to swear the jury venire before voir dire;
(2) the State's use of alleged hearsay evidence offered through forensic scientist Teryn Bostick; and
(3) the State's failure to prove beyond a reasonable doubt the prior convictions used to enhance his sentence as a habitual felony offender.

Doc. 1 at 16-24.

         The Respondents argue that Dorsey's claims are procedurally defaulted because he failed to exhaust them in the state courts by litigating them through a complete round of Alabama's appellate review process. [3] Doc. No. 19 at 6-13. Dorsey appears to assert as cause” excusing his procedural default the state circuit clerk's failure to provide him with timely notice of the trial court's judgment denying his December 31, 2015 Rule 32 petition. Doc. 23 at 5-6. He appears also to argue, as additional cause excusing his procedural default, that the trial court improperly prevented him from litigating his Rule 32 claims when it denied the IFP application he filed with his November 1, 2016 Rule 32 petition seeking an out-of-time appeal from the denial of his December 31, 2015 Rule 32 petition. Id. at 6.

         This court finds it is unnecessary to address the issue of the procedural bar here, because even assuming Dorsey's claims are preserved, the trial court's merits ruling denying the ineffective assistance of counsel claims was not contrary to, or an unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254(d)(1). Therefore, Dorsey is not entitled to habeas relief.

         II. DISCUSSION

         A. AEDPA ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.