United States District Court, N.D. Alabama, Southern Division
OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE
a pro se petition for writ of habeas corpus filed
pursuant to 28 U.S.C. § 2254 by Carlos Hernandez, a
state prisoner. Hernandez challenges his state conviction for
cocaine trafficking. For the following reasons,
Hernandez's claims are due to be dismissed, either as
unexhausted or meritless.
22, 2012, a jury sitting in Jefferson County, Alabama,
convicted Hernandez of cocaine trafficking. On July 26, 2012,
the trial judge sentenced Hernandez to life without parole.
(Doc. 17-1 at 33, 38-39). Hernandez filed a direct appeal,
raising five issues:
1. whether the evidence was sufficient to prove the element
of knowledge, including knowing possession and knowledge of
the charged amount of cocaine;
2. whether the indictment should have been dismissed, or
whether in the alternative there should be a new trial, based
on the failure to inform the defense of the identity of the
most material potential witness and based on the
government's failure to provide information allowing the
defense to compel that person's appearance at trial;
3. whether the trial court erred in denying a motion to
4. whether the trial court erred by refusing to instruct the
jury that merely acting in conformity with another's
criminal conduct is insufficient to establish guilt; and
5. whether the trial court erred in concluding that it had no
discretion regarding the sentence.
(Doc. 17-14 at 14).
appellate court affirmed Hernandez's conviction by
memorandum opinion on April 26, 2013. (Doc. 12-1). Hernandez
sought further review, raising all but the jury instruction
claim in a petition for writ of certiorari. (Doc.
17-16 at 5-11). The Alabama Supreme Court denied the writ
without opinion on September 27, 2013, and entered a
certificate of judgment. (Doc. 12-2); Ex parte Carlos
Hernandez, No. 1120958, 141 So.3d 1029 (Ala. 2013)
(Moore, C.J. dissenting).
September 19, 2014, Hernandez filed a petition for relief
from conviction or sentence pursuant to Rule 32 of the
Alabama Rules of Criminal Procedure. (Docs. 17-17);
Carlos Hernandez v. State of Alabama, CC
2010-000904.60. This Rule 32 petition asserted four claims
for ineffective assistance of counsel: (1) trial counsel
failed to file a motion to suppress the audio recording of a
drug transaction; (2) trial counsel erred by failing to
challenge the chain of custody of the cocaine and stipulating
to the admission of the Certificate of Analysis; (3)
appellate counsel did not challenge the State's failure
to provide sufficient notice of its intent to introduce a
Certificate of Analysis identifying the cocaine at issue in
lieu of live testimony by the forensic scientist who
performed the analysis, as required by Alabama law; and (4)
trial counsel erred by stipulating to admitting the
Certificate of Analysis into evidence, depriving Hernandez of
his right to confront the forensic scientist. (Doc. 17-17 at
23-32). The State filed a motion to dismiss the petition on
January 12, 2015, arguing Hernandez's claims were
meritless and barred under Rule 32. (Doc. 17-19 at 16-20). On
January 16, 2015, the trial court denied the Rule 32 petition
as insufficiently pled. (Doc. 17-17 at 7-8).
appealed the denial of the Rule 32 petition on February 17,
2015, and moved for IFP on appeal. (Doc. 17-17 at 3, 9-11).
The trial court and Court of Criminal Appeals denied
Hernandez's IFP motions, and after Hernandez failed to
pay the $200 docket fee or show good cause for the failure,
the appellate court dismissed the appeal and issued a
Certificate of Judgment on May 29, 2015. (Doc. 17-20);
Carlos Hernandez v. State of Alabama, CR-14-0660
(Ala.Crim.App.2015); see also Hernandez,
CC-2010-904.60, Docs. 20, 25,  26, 28, 30, 33, 34; (Doc. 14 at
declares he "could not pay the filing fee to appeal the
judgment" and sought mandamus relief, requesting the
Alabama Supreme Court to require the appellate court to grant
IFP on appeal. (Doc. 20 at 2). Hernandez provides no other
details regarding the proceedings other than to declare the
Alabama Supreme Court denied the mandamus petition.
(Id.). Thus, it appears the Alabama Supreme Court
refused to issue an order directing the Alabama Court of
Criminal Appeals to grant his motion to proceed IFP on
appeal. Hernandez did not file an application for rehearing
and did not seek certiorari from the Alabama Supreme
Court. Accordingly, Hernandez never presented the claims
presented in his first Rule 32 petition to the Alabama
April 2015, while the appeal of the denial of his first Rule
32 petition was pending with the Court of Criminal Appeals,
Hernandez attempted to file a second Rule 32 petition with
the trial court. (See Doc. 17-21 at
The second Rule 32 petition presented only a double jeopardy
claim under the Fifth Amendment. (Id.). The
Jefferson County Clerk refused to file the petition and on
May 15, 2015, notified Hernandez he could not file a new Rule
32 petition while his first petition was on appeal.
(Id.); see also, Hernandez,
CC-2010-904.60, Doc. 32. After the Court of Criminal Appeals
issued the Certificate of Judgment on his first Rule 32
petition-and after initiating the instant federal habeas
petition-Hernandez continued to pursue the filing of his
second Rule 32 petition. Although he had to file two mandamus
petitions, Hernandez ultimately was successful in his
attempts to file the second Rule 32 petition. As explained
below, initially the record was unclear whether the second
Rule 32 petition revived claims from the first Rule 32
petition. This lack of clarity was exacerbated by the
haphazard filing of pleadings and orders related to the
second Rule 32 petition; these filings and entries appear
intermittently in the records of the underlying criminal
case,  the first Rule 32 petition, and the second
Rule 32 petition.
the same time, the trial court appointed counsel to represent
Hernandez in his first Rule 32 petition and ordered the state
to respond. Hernandez, CC-2010-904.60, Doc. 41. The
court also set the first Rule 32 petition for a hearing.
Id. at Doc. 45. In the record of his first Rule 32
petition, Hernandez filed a pro se motion to
consolidate his first and second Rule 32 petitions or
alternatively, to amend his second Rule 32 petition to
include the claims raised in the first petition.
Hernandez, CC-2010-904.60, Doc. 47. The State filed
a response to the motion in the records of the first and
second Rule 32 petitions on February 20, 2018. (Doc. 17-24).
8, 2018, Hernandez filed a reply which was docketed in the
record for the second Rule 32 petition; in the
pleading-styled as a motion to dismiss-Hernandez abandoned
his attempts to consolidate or amend his Rule 32 petitions.
(Doc. 19 at 9-11); Hernandez, CC-2010-904.61, Doc. 7
(same). The reply conceded the trial court lacked
jurisdiction to consolidate because the first Rule 32
petition had been long dismissed and because the trial court
could not grant IFP on appeal. (See Doc. 19 at 9).
The reply also reflected the double jeopardy claim was
Hernandez's only pending Rule 32 claim. (Id. at
15, 2018, the trial court granted Hernandez's motion to
dismiss and granted-without clarification-the state's
motion to dismiss the first Rule 32 petition.
Hernandez, CC-2010-904.60, Doc. 57. The court also
granted-again without clarification-Hernandez's motion to
consolidate and or amend his Rule 32 petition. (Doc. 20 at
5-7); Hernandez, CC-2010-904.60, Doc. 59. Hernandez
filed no further motions in, or otherwise challenged the May
15, 2018, dismissal of his first Rule 32 petition. No.
further orders have been entered in the record of the second
Rule 32 petition, which remains pending.
state court record, the undersigned has the following
understanding of Hernandez's post-conviction state court
claims: (1) the first Rule 32 petition's claims for
ineffective assistance of counsel were dismissed; (2) the
second Rule 32 petition's double jeopardy claim remains
pending in the trial court. None of Hernandez's Rule 32
claims have been presented to the Alabama Supreme Court.
Hernandez was pursuing his second Rule 32 petition, he filed
the instant petition seeking federal habeas relief in this
court on June 10, 2015. (Doc. 1 at 32). After this court
denied Hernandez's application to proceed IFP, he paid
the $5.00 filing fee. (Docs. 2, 3).
instant petition raises the following claims: (1) the trial
court erred by refusing to acquit him when the evidence was
insufficient to prove the element of knowledge, including
knowing possession and knowledge of the charged amount of
cocaine; (2) the trial court erred in refusing to compel the
state to produce confidential informant Mr. X as a witness,
and erred by failing to at least compel the state to provide
information to allow the defense to find him; (3) the trial
court erred in refusing to instruct the jury that merely
acting in conformity with another's criminal conduct is
insufficient to establish guilt; (4) the trial court erred in
concluding it had no discretion regarding the sentence; (5)
ineffective assistance of counsel for failure to file a
motion to suppress the audio recording of an alleged drug
transaction; (6) ineffective assistance of trial counsel for
stipulating to the admission of an unsworn Certificate of
Analysis in lieu of testimony regarding the chain of custody
and the validity of the forensic analysis and conclusions;
(7) ineffective assistance of counsel for failure to object
to the state's failure to provide the notice required in
order to utilize the Certificate of Analysis in lieu of
testimony; and (8) ineffective assistance of counsel for
failing to object and preserve for review his right to
confront and cross-examine Danny Kirkpatrick, the forensic
scientist responsible for testing the alleged cocaine. (Doc.
1 at 8-30). The first four claims in the instant petition are
substantially the same as claims presented on direct
appeal; claims five through eight are
substantially similar to claims presented in the first Rule
response to the court's second order to show cause,
Respondents argued for dismissal and denial of the petition
for lack of exhaustion due to Hernandez's pending
post-conviction collateral attacks in state court. (Doc. 17
at 3-4). The response also asserted that Hernandez was not
entitled to habeas relief on the claims he exhausted on
instant petition asserts three claims that were presented to
the Alabama Supreme Court on direct appeal; the remainder of
the claims were not presented to the Alabama Supreme Court,
either on direct appeal or via a post-conviction remedy.
Because Hernandez never presented his claim regarding the
jury instruction (Claim 3) or his claims for ineffective
assistance of counsel (Claims 5-8) to the Alabama Supreme
Court, these claims are due to be dismissed as unexhausted.
The remaining claims are due to be denied on the merits. Each
conclusion is addressed in turn.
Unexhausted Claims Regarding Jury Charge and Ineffective
prisoner is generally ineligible for federal habeas relief
unless he has first exhausted the remedies available in the
courts of the state of conviction. See 28 U.S.C.
§ 2254(b)(1)(A); Kelley v. Secretary for Dept. of
Corr., 377 F.3d 1317, 1343-44 (11th Cir. 2004). A state
prisoner must first present any federal constitutional or
statutory claim through one complete round of the state's
trial and appellate review process, either on direct appeal
or in state post-conviction proceedings. O'Sullivan
v. Boerckel, 526 U.S. 838, 845 (1999); Mauk v.
Lanier, 484 F.3d 1352, 1357 (11th Cir. 2007). Thus, an
Alabama state prisoner must attempt to present each of his
claims to the Alabama Supreme Court. Pruitt v.
Jones, 348 F.3d 1355, 1359 (11th Cir. 2003); Smith
v. Jones, 256 F.3d 1135, 1140-41 (11th Cir. 2001). Where
a claim has not been exhausted in the state courts and the
time in which to present the claim there has expired, the
claim is deemed procedurally defaulted, and review in the
federal courts is generally precluded. See Coleman v.
Thompson, 501 U.S. 722, 735 n.1 (1991); McNair v.
Campbell, 416 F.3d 1291, 1305 (11th Cir. 2005).
Hernandez's federal habeas claims for ineffective
assistance of counsel were presented to the sentencing court
in his first Rule 32 petition. But Hernandez did not pursue
his appeal regarding the first Rule 32 petition to the
Alabama Supreme Court. Instead, the Court of Criminal Appeals
denied his motion seeking IFP on appeal. While
Hernandez unsuccessfully sought mandamus relief regarding the
denial of IFP on appeal, he never actually presented to the
Alabama Supreme Court the substantive claims included in the
first Rule 32 petition. Accordingly, Hernandez has not
exhausted state court remedies regarding his federal habeas
claims alleging ineffective assistance of
while Hernandez initially raised the jury instruction claim
on direct appeal, he did not present it to the Alabama
Supreme Court in his petition for writ of
certiorari. So he also failed to exhaust his state
court remedies as to the jury instruction claim.
foregoing reasons, the claims asserting ineffective
assistance of counsel (Claims 5-8) and challenging the
sentencing court's jury charge (Claim 3) are due to be
dismissed as unexhausted.
Remaining Claims are Without Merit
noted previously, Hernandez's remaining claims were
exhausted on direct appeal. (Doc. 17 at 3-4). Where a claim
was adjudicated on the merits in state court, the
Anti-Terrorism and Effective Death Penalty Act
("AEDPA") ordinarily limits significantly the scope
of review. See 28 U.S.C. § 2254; Williams
v. Taylor, 529 U.S. 362, 402-03 (2000). Habeas relief
under § 2254 is precluded unless the state court's
adjudication of the claim resulted in a decision that was
either (1) "contrary to, or involved an unreasonable
application of, clearly established Federal law, as
determined by the Supreme Court of the United States,"
or (2) "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)-(2). Further,
the court must presume that factual determinations by state
courts are correct, subject to rebuttal only upon a showing
by clear and convincing evidence. 28 U.S.C. §
explained by the Supreme Court, a state court's decision
"is contrary to this Court's clearly established
precedents if it applies a rule that contradicts the
governing law set forth in our cases, or if it confronts a
set of facts that is materially indistinguishable from a
decision of this Court but reaches a different result."
Brown v. Payton, 544 U.S. 133, 141 (2005) (citing
Williams, 529 U.S. at 405; Early v. Packer,
537 U.S. 3, 8 (2002) (per curiam)). The Supreme Court has
likewise stated that a "state-court decision involves an
unreasonable application of this Court's clearly
established precedents if the state court applies this
Court's precedents to the facts in an objectively
unreasonable manner." Id. (citing
Williams, 529 U.S. at 405; Woodford v.
Visciotti, 537 U.S. 19, 24-25 (2002)).
phrase "clearly established Federal law" in §
2254(d)(1) refers to the holdings, as opposed to the
dicta, of the decisions of the United States Supreme
Court in precedent issued before the state court rendered its
decision. Carey v. Musladin, 549 U.S. 70, 74 (2006);
Yarborough v. Alvarado, 541 U.S. 652, 660-661
(2004); Lockyer v. Andrade, 538 U.S. 63, 71-72
(2003); see also Neelley v. Nagle, 138 F.3d 917, 923
(11th Cir. 1998) ("[A] district court evaluating a
habeas petition under § 2254(d) should survey the legal
landscape at the time the state court adjudicated the
petitioner's claim to determine the applicable Supreme
Court authority" (internal quotation marks and citation
omitted), overruled on other grounds by Williams, as
stated in Parker v. Head, 244 F.3d 813, 835 (11th
Cir. 2001)). But "clearly established Federal law"
does not include decisions of lower courts. Renico v.
Lett, 559 U.S. 766');">559 U.S. 766, 778-79 (2010).
Supreme Court explained, "AEDPA thus imposes a highly
deferential standard for evaluating state-court rulings, and
demands that state-court decisions be given the benefit of
the doubt." Renico, 559 U.S. at 773 (citations
and internal quotation marks omitted). For purposes of §
2254(d)(1), "an unreasonable application of
federal law is different from an incorrect
application of federal law." Harrington v.
Richter, 562 U.S. 86, 100 (2011) (quoting
Williams, 529 U.S. at 410). "Indeed, 'a
federal habeas court may not issue the writ simply because
that court concludes in its independent judgment that the
relevant state-court decision applied clearly established
federal law erroneously or incorrectly.'"
Renico, 559 U.S. at 773 (quoting Williams,
529 U.S. at 411).
[a] state court's determination that a claim lacks merit
precludes federal habeas relief so long as "fairminded
jurists could disagree" on the correctness of the state
court's decision. Yarborough v. Alvarado, 541
U.S. 652, 664 (2004). . . . "[E]valuating whether a rule
application was unreasonable requires considering the
rule's specificity. The more general the rule, the more
leeway courts have in reaching outcomes in case-by-case
determinations." Ibid. "[I]t is not an
unreasonable application of clearly established Federal law
for a state court to decline to apply a specific legal rule
that has not been squarely established by this Court."
Knowles v. Mirzayance, 556 U.S. 111, 122 (2009)
(internal quotation marks omitted).
Harrington, 562 U.S. at 101.
"a state-court factual determination is not unreasonable
[for purposes of § 2254(d)(2)] merely because the
federal habeas court would have reached a different
conclusion in the first instance." Wood v.
Allen, 558 U.S. 290, 301 (2010). "[E]ven if
'[r]easonable minds reviewing the record might
disagree' about the finding in question, 'on habeas
review that does not suffice to supersede the [state] trial
court's ... determination.'" Id.
(quoting Rice v. Collins, 546 U.S. 333, 341-342
set forth the applicable standard of review, the court
addresses Hernandez's exhausted claims in turn.
of Acquittal: Insufficient Evidence of Intent (Claim
contends the evidence at trial consisted of a telephone
conversation on the day of the incident in which Mr. X gave
him directions to a meeting. (Doc. 1 at 8). At the meeting,
Mr. X said the word "fifteen" and gave Hernandez
"a closed opaque piece of luggage." (Id.).
Hernandez's first claim in the instant petition is that
this evidence was insufficient to show he knew the luggage
contained cocaine, much less that it contained over ten
kilos. (Id.). So, Hernandez claims the trial
court's failure to order a judgment of acquittal based on
the evidentiary insufficiencies ran afoul of the Sixth and
Fourteenth Amendments. (Id.) (citing Jackson v.
Virginia, 443 U.S. 307 (1979)).
Process Clause of the Fourteenth Amendment, not the Sixth
Amendment, governs claims challenging sufficiency of the
evidence. Jackson, 443 U.S. at 316; Thompson v.
Nagle, 118 F.3d 1442, 1448 (11th Cir.1997). "[T]he
relevant question is whether, after viewing the evidence in
the light most favorable to the prosecution, any
rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt."
Id. at 319. Under Jackson, state law
determines a criminal offense's substantive elements,
"but the minimum amount of evidence that the Due Process
Clause requires to prove the offense is purely a matter of
federal law." Coleman v. Johnson, 566 U.S. 650,
the court begins with the Court of Criminal Appeals'
findings, which include the trial evidence and Alabama's
Trafficking in Cocaine statute, as well as the appellate
court's decision, which Hernandez contends is contrary to
or an unreasonable application of Jackson.
Court of Criminal Appeals found:
Special Agent Preston Rosenhan, of the Los Angeles,
California field division of the United States Drug
Enforcement Administration (DEA), testified that a
confidential source, who was a truck driver, had given
information that his division planned on conducting
surveillance of a planned buy of fifteen kilograms of cocaine
to be transferred to the confidential informant (C.I.) from
someone named "Julio." (R. 133.) The destination
for the cocaine was understood to be Atlanta; however, the
cocaine was initially intended to be transported to
Birmingham. Special Agent Rosenhan was in the parking lot
where the transaction occurred but was unable to observe the
offense. He testified that he and another agent were intended
to maintain surveillance of the C.I. until the cocaine was
retrieved following the transaction. The cocaine was
transported from California to Birmingham by a commercial
airplane. It was then turned over to an agent with the DEA in
Birmingham and the C.I. drove to Birmingham. Special Agent
Rosenhan testified that the C.I. received two payments for
his role in this case; one payment of $3, 500 and another of
$2, 000. On cross- examination, Special Agent Rosenhan
acknowledged that he did not know who "Julio" was,
nor did he know Hernandez or his accomplice, Derrick
Breeding. He testified that he believed that telephone calls
were recorded between the C.I. and Hernandez after the C.I.
had arrived in Birmingham.
Special Agent Donald Bennett of the DEA testified that he was
present in Birmingham at the Flying J Truck Stop to supply
technical support for the controlled buy and to record video
footage of the incident. He testified that, although he did
not make contact with the C.I. during the incident, Special
Agent Bennett knew who the C.I. was, what he was wearing, and
when he arrived. He stated that he had met with Special Agent
Rosenhan concerning the events that had transpired in Los
Angeles and what was then to transpire in Birmingham. He
testified: "Evidently information came in from L.A.
regarding a controlled delivery of fifteen kilograms of
cocaine. And at that particular time, the operation - given
the operation, we did a briefing regarding this controlled
delivery where I took the surveillance platform and went out
to the target location where the actual delivery would take
place." (R. 155.) Special Agent Bennett, who was
operating the camera at the scene, testified that the C.I.,
who was "outfitted" with a "communication
device," arrived first and that the target then arrived.
(R. 156.) Special Agent Bennett stated that he observed a
black Maxima vehicle arrive that was being driven by a black
male and carried a Hispanic male passenger. The vehicle
parked approximately two parking spaces from the surveillance
platform. [Special Agent Bennett testified that he recorded
the transaction from a vehicle.] The Hispanic man got out and
walked over to the C.I. and they talked for "a little
while." (R. 159.) Then, they walked to the Maxima
vehicle and opened the trunk ...