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Hernandez v. Price

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

September 25, 2018

CARLOS HERNANDEZ, Petitioner,
v.
WARDEN CHERYL PRICE, et al., Respondents.

          MEMORANDUM OPINION

          KARON OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE

         This is 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.

         I. BACKGROUND

         On June 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).[1] 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 suppress;
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).

         The 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).

         On 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.[2] 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).

         Hernandez 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, [3] 26, 28, 30, 33, 34; (Doc. 14 at 2, 20-26).

         Hernandez 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.).[4] 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 Supreme Court.

         In 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 3).[5] 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, [6] the first Rule 32 petition, and the second Rule 32 petition.

         Around 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).

         On May 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 10).

         On May 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.

         On this 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.

         While 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).[7] After this court denied Hernandez's application to proceed IFP, he paid the $5.00 filing fee. (Docs. 2[8], 3).

         The 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;[9] claims five through eight are substantially similar to claims presented in the first Rule 32 petition.

         In response to the court's second order to show cause, [10] 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 direct appeal.

         II. DISCUSSION

         The 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.

         A. Unexhausted Claims Regarding Jury Charge and Ineffective Assistance

         A state 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).

         Here, 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.[11] 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 counsel.[12]

         Additionally, 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.

         For the 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.

         B. Remaining Claims are Without Merit

         As 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. § 2254(e)(1).

         As 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)).

         The 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).

         As the 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).

         Rather,

[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.[13]

         Likewise, "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 (2006)).

         Having set forth the applicable standard of review, the court addresses Hernandez's exhausted claims in turn.

         1.Denial of Acquittal: Insufficient Evidence of Intent (Claim 1)

         Hernandez 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)).

         The Due 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, 655 (2012).

         Accordingly, 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.

         The 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 ...

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