United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
WALLACE CAPEL, JR.CHIEF UNITED STATES MAGISTRATE JUDGE
Karvis Lamar Dennis (“Dennis”), an inmate of the
Alabama Department of Corrections, petitions the court for
habeas corpus relief pursuant to 28 U.S.C. § 2254. He
challenges his conviction for murder in the Circuit Court for
Montgomery County, Alabama. Doc. 1. For the following
reasons, the court recommends that the petition be denied and
the case dismissed.
STATE COURT PROCEEDINGS
admitted he shot and killed the victim. He argued he acted in
self-defense. State v. Dennis, CR-13-0591 (Ct. Crim.
App. Aug. 22, 2014), Doc. 8-6 at 11. The jury found Dennis
guilty of murder. The circuit court sentenced him to
twenty-two years in prison. Id. at 1.
appealed, raising two issues. First, he argued the circuit
court erred in denying his motion for mistrial after an
emotional outburst during testimony by the victim's
mother. Id. at 2. He argued the outburst denied him
a fair trial before an impartial jury. Id. Second,
he argued the circuit court erred in denying his motion for
new trial because a juror failed to disclose during voir dire
her familiarity with the area of the shooting and her alleged
medical condition. Id. at 6. The Alabama Court of
Criminal Appeals rejected both grounds and affirmed the
judgment. Id. at 11. It denied Dennis's
application for rehearing. Docs. 8-7, 8-8. The Alabama
Supreme Court denied Dennis's petition for writ of
certiorari, and a certificate of judgment issued on October
10, 2014. Doc. 8-9.
Rule 32 Proceedings
sought postconviction relief under Alabama Rule of Criminal
Procedure 32. Doc. 8-10 at 4. The circuit court summarily
dismissed Dennis's claims because two of them were the
same ones he raised on direct appeal, and the third alleging
ineffective assistance of counsel was “not pleaded with
the requisite specificity.” Doc. 8-11 at 9.
appealed, raising two issues. First, he reasserted his claim
regarding the emotional outburst at trial. Doc. 8-14 at 2.
Second, he argued he was denied due process because he was
not served with a copy of the State's response to his
petition. Id. at 3. The Court of Criminal Appeals
affirmed. It held his claim regarding the emotional outburst
was barred under Alabama procedural law because it already
was raised and addressed on appeal. Id. It further
held Dennis was, in fact served properly, and the circuit
court followed proper procedure in dismissing the petition.
Id. It deemed abandoned the claims Dennis did not
reassert. Id. at 2. It denied his application for
rehearing. Doc. 8-16. A certificate of judgment issued on
December 31, 2015. Doc. 8-17.
HABEAS PETITION AND THE PARTIES' ARGUMENTS
raises three claims for § 2254 relief. First, he argues
his Sixth and Fourteenth Amendment rights to a fair trial
before an impartial jury were violated when the circuit court
refused to grant a mistrial after the emotional outburst in
the gallery. Doc. 1 at 16-18. Second, Dennis argues his Sixth
and Fourteenth Amendment rights were violated when the
circuit court refused to grant a new trial after learning a
juror failed to disclose during voir dire that she was
familiar with the area and people where the crime occurred,
and that she was biased based on a connection she felt with
the deceased. Id. at 19-20. Finally, Dennis argues
his equal protection rights were violated because the court
records do not include a transcript of the outburst.
Id. at 21- 22.
answered, arguing the court should deny relief on
Dennis's claims regarding (1) the emotional outburst and
(2) the juror's answers during voir dire because the
state court rulings were not contrary to or an unreasonable
application of United States Supreme Court precedent. Doc. 8
at 5, 10. Respondents further argue this court cannot review
Dennis's third claim regarding the transcript of the
outburst because he did not raise it in state court, and it
is procedurally defaulted under state law. Id. at
court entered an order giving Dennis an opportunity to
respond to the answer, and advising Dennis of the constraints
that 28 U.S.C. § 2254(d) places on federal courts to
grant relief, including procedural default of federal claims,
as well as the ways to overcome default. Doc. 9.
responded. Doc. 10. He asserts the trial court's personal
observations used to resolve the outburst were
“contrary to the facts of what actually
occurred.” Id. at 3. Dennis maintains the
court's failure to provide any curative charge, the lack
of a record for a reviewing court, and the admission of a
juror's influence from the outburst demonstrate that he
did not receive a fair and impartial trial. Id.
Dennis argues the state court adjudication of his
“claims was based on an unreasonable determination of
the facts in light of the evidence presented in the state
courts proceeding. Clearly prejudice is obvious that failure
to consider the claims would result in a fundamental
miscarriage of justice.” Id. at 4. Dennis
asserts he “is innocent of intentionally/intentional
murder, given the facts of the case.” Id. He
asserts he challenged the lack of record in Doc. 8-8 at 3,
but the state court did not address it. Id. at
7. He argues “[f]ailure to consider the claims will
result in a fundamental miscarriage of justice in [his]
case”; the failure to record the incident undermines
the appellate process; and Respondents waived his equal
protection claim by not addressing it. Id. at 8-9.
Throughout his response, Dennis reiterates his arguments on
the merits of his claims regarding the outburst in the
gallery and the juror's disqualification.
court has reviewed the § 2254 petition, the state court
record, the parties' arguments, and applicable federal
law. The court concludes that no evidentiary hearing is
required, and the petition is due to be denied in accordance
with the provisions of Rule 8(a), Rules Governing Section
2254 Cases in United States District Courts.
Claim Regarding the Incomplete Record Cannot Be
claims his constitutional rights were violated by the trial
court's failure to ensure the record included a
transcript of the outburst in the gallery. The court
determines that Dennis did not adequately exhaust his state
remedies on the claim. The claim is now defaulted under an
adequate and independent state ground, and he demonstrates no
excuse allowing the court to consider it. Consequently, this
court cannot review the claim.
procedural default doctrine is closely related to the
exhaustion requirement in § 2254 cases. To preserve a
federal claim for habeas review, principles of exhaustion
require a petitioner to present the federal claim and facts
supporting it to the state's highest court, either on
direct appeal or on collateral appeal through postconviction
proceedings. See Pruitt v. Jones, 348 F.3d 1355,
1358-59 (11th Cir. 2003) (holding exhaustion principles apply
to state postconviction proceedings as well as direct
appeal). A petitioner “must give the state courts one
full opportunity to resolve any constitutional issues by
invoking one complete round of the State's established
appellate review process, ” including review by the
state's court of last resort, even if review in that
court is discretionary. O'Sullivan v. Boerckel,
526 U.S. 838, 845 (1999); Pruitt, 348 F.3d at 1359.
In Alabama, this requires filing an appeal to the Court of
Criminal Appeals, an application for rehearing, and a
petition for discretionary review with the Alabama Supreme
Court. See Pruitt, 348 F.3d at 1359 (describing
Alabama procedures for discretionary review); Smith v.
Jones, 256 F.3d 1135, 1140 (11th Cir. 2001)
(“Alabama's discretionary direct review procedures
bring Alabama prisoner habeas petitions within the scope of
the Boerckel rule.”). Doing so gives the state
courts the first opportunity to apply controlling law to
their case and petitioner's claim. See Duncan v.
Walker, 533 U.S. 167, 179 (2001) (“The exhaustion
rule promotes comity in that ‘it would be unseemly in
our dual system of government for a federal district court to
upset a state court conviction without an opportunity to the
state courts to correct a constitutional
violation.'” (further quotation marks and citations
habeas review is also unavailable if the state court decision
was made on a state law ground that is independent of the
federal question and adequate to support the judgment.
Coleman v. Thompson, 501 U.S. 722, 729 (1991). If a
petitioner did not present a claim to the highest state court
but would now be unable to present the claim in state court
because of a state procedural rule, such a petitioner
“meets the technical requirements for exhaustion; there
are no state remedies any longer ‘available' to
him.” Id. at 732. But the petitioner has
“procedurally defaulted” the federal claim under
an adequate and independent state rule. See Id. at
750. Federal claims which have never been presented to a
state court or claims which were not exhausted properly in
the state courts are procedurally defaulted if presentation
of the claims in state court would be barred by firmly
established and regularly followed state procedural rules.
Gray v. Netherland, 518 U.S. 152, 161-62 (1996)
(where state court remedies are no longer available because
petitioner failed to present claim on direct appeal or in
state postconviction action, petitioner has procedurally
defaulted claims and is generally barred from asserting
claims in a federal habeas proceeding); Coleman, 501
U.S. at 735 n.1 (“[I]f the petitioner failed to exhaust
state remedies and the court to which the petitioner would be
required to present his claims in order to meet the
exhaustion requirement would now find the claims procedurally
barred[, ] . . . there is a procedural default for purposes
of federal habeas.”) (citations omitted).
asserts he raised the argument in his petition for writ of
certiorari before the Alabama Supreme Court. Doc. 10 at 7.
Dennis did not raise the issue until he filed his petition
for writ of certiorari. Docs. 8-4, 8-7, 8-8. When the Alabama
Supreme Court denied the petition, its ruling was not a
decision on the merits. See Waldrop v. Commissioner, Ala.
Dep't Corr., 711 Fed.Appx. 900, 918 (11th Cir. 2017)
(citing Ex parte McDaniel, 418 So.2d 934, 935 (Ala.
1982)). Presenting a claim for the first and only time to the
Alabama Supreme Court on discretionary review, where review
on the merits is granted “only when there are special
and important reasons, ” does not satisfy the
exhaustion requirement to fairly present a claim to the state
court, especially where the state court exercises its
discretion to decline to review the mertis of the claim.
Id. (relying on Castille v. Peoples, 489
U.S. 346, 351 (1989) (holding petitioner did not fairly
present claims “where the claim has been presented for
the first and only time in a procedural context in which its
merits will not be considered unless ‘there are special
and important reasons therefor'”) (citing state
procedural rule)); see also Ala. R. App. P. 39(a)
(Alabama Supreme Court's discretionary review is
granted). State procedural rules preclude Dennis from
returning to state court to raise his claim in Rule 32
proceedings. Alabama Rule of Criminal Procedure 32.2(a)
precludes Dennis from raising most claims that were or could
have been raised in previous proceedings. Rule 32.2(b)
precludes successive petitions. And Rule 32.2(c) sets a
one-year deadline for most Rule 32 claims. See Ala.
R. Crim. P. 32.2(a), (b), (c). These independent and adequate
state procedural grounds are firmly established and regularly
followed by Alabama appellate courts. E.g., Tucker v.
State, 956 So.2d 1170, 1171-73 (Ala.Crim.App.2006)
(Rules 32.2(a)(3), 32.2(a)(5), and 32.2(c)); Horsley v.
State, 675 So.2d 908, 909 (Ala.Crim.App.1996) (Rules
32.2(a)(3), 32.2(a)(5), 32.2(b), and 32.2(c)); Siebert v.
Allen, 455 F.3d 1269, 1271 (11th Cir. 2006) (Rule
32.2(c)); see Boyd v. Comm'r, Alabama Dep't of
Corr., 697 F.3d 1320, 1335 (11th Cir. 2012) (holding
claims barred under Ala. R. Crim. P. 32.2(a)(3) and
32.2(a)(5), requiring claims to be raised at trial and on
direct appeal, are procedurally defaulted from federal habeas
review). Consequently, Dennis's claim regarding the
record in state court is procedurally defaulted for purposes
of federal habeas review.
court may reach the merits of procedurally defaulted claims
in two instances:
First, a petitioner may obtain federal review of a
procedurally defaulted claim if he can show both
“cause” for the default and actual
“prejudice” resulting from the default. See
Murray v. Carrier, 477 U.S. 478, 485 (1986);
[Wainwright v.] Sykes, 433 U.S. , 87 [(1977)].
“To establish ‘cause' for procedural default,
a petitioner must demonstrate that some objective factor
external to the defense impeded the effort to raise the claim
properly in the state court.” Wright v.
Hopper, 169 F.3d 695, 703 (11th Cir. 1999). To establish
“prejudice, ” a petitioner must show that there
is at least a reasonable probability that the result of the
proceeding would have been different. Id.;
Crawford v. Head, 311 F.3d 1288, 1327-28 (11th Cir.
2002). Second, a federal court may also grant a habeas
petition on a procedurally defaulted claim, without a showing
of cause or prejudice, to correct a fundamental miscarriage
of justice. Murray, 477 U.S. at 495-96. A
“fundamental miscarriage of justice” occurs in an
extraordinary case, where a constitutional violation has
resulted in the conviction of someone who is actually
Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir.
2003); see also Coleman, 501 U.S. at 750. The
miscarriage of justice standard is directly linked to
innocence. Schlup v. Delo, 513 U.S. 298, 321 (1995).
Innocence is not an independent claim; instead, it is the
“gateway” through which a petitioner must pass
before a court may consider constitutional claims which are
defaulted. Id. at 315. This exception applies where
a petitioner establishes that “a constitutional
violation has probably resulted in the conviction of one who
is actually innocent.” Murray, 477 U.S. at
496; Schlup, 513 U.S. at 321. “[T]he
Schlup standard is demanding and permits review only
in the ‘extraordinary' case.” House v.
Bell,547 U.S. 518, 538 (2006) (citations omitted).
Thus, “[i]n the usual case the presumed guilt of a
prisoner convicted in state court counsels against federal
review of defaulted claims.” Id. at 537.
“To establish actual innocence, [a habeas petitioner]
must demonstrate that . . . ‘it is more likely than not
that no reasonable juror would have convicted
him.'” Bousley v. United States, 523 U.S.
614, 623 (1998) (quoting Schlup, 513 U.S. at
327-28); House, 547 U.S. at 538. In this context, a
petitioner must show constitutional error coupled with newly
discovered, reliable evidence that was not presented at trial
that would establish factual innocence ...