United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
Russ Walker 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 Timothy Ronald Dorsey on September 7, 2016.
BACKGROUND AND PROCEDURAL HISTORY
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.
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and sentence by unpublished memorandum opinion.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.
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.
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. Doc. 19-16.
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.
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.  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.
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