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Lucy v. Cooks

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

December 3, 2018

WILLIAM N. LUCY, AIS 204880, Petitioner,
v.
WARDEN MARY COOKS, Respondent.

          REPORT AND RECOMMENDATION

          P. BRADLEY MURRAY UNITED STATES MAGISTRATE JUDGE

         William N. Lucy, a state prisoner presently in the custody of the respondent, has petitioned this Court for federal habeas corpus relief pursuant to 28 U.S.C. § 2254. Petitioner challenges the validity of his January 6, 2015 conviction in the Circuit Court of Mobile County, Alabama for offering a false instrument for recording against a public servant in violation of Alabama Code § 13A-9-12(c). On January 26, 2015, Lucy was sentenced to a thirty-year term of imprisonment in accordance with Alabama's Habitual Felony Offender Statute, Ala.Code § 13A-5-9. The Alabama Court of Criminal Appeals affirmed Lucy's conviction and sentence by unpublished memorandum opinion issued on February 5, 2016. See Lucy v. State, 225 So.3d 129 (Ala.Crim.App. 2016) (table). Lucy's application for rehearing was denied on March 11, 2016, id., and his petition to the Alabama Supreme Court for writ of certiorari was ultimately stricken due to Petitioner's failure to comply with Rule 39(c)(2) of the Alabama Rules of Appellate Procedure. Lucy filed a Rule 32 petition in the Circuit Court of Mobile County, Alabama collaterally attacking his conviction and sentence on October 26, 2016. (Compare Doc. 20, Exhibit J, March 21, 2017 ORDER with id., Exhibit M, at 2). The trial court summarily denied Lucy's collateral petition without an evidentiary hearing. (See id., Exhibit J, March 21, 2017 ORDER). The Alabama Court of Criminal Appeals affirmed the trial court's judgment by unpublished memorandum decision issued on October 6, 2017. (Id., Exhibit M). Petitioner's application for rehearing was overruled on October 27, 2017 (id., Exhibit O) and the certificate of final judgment issued on November 15, 2017 (id., Exhibit P), Lucy filing no petition for writ of certiorari (compare Id. with Id. at Exhibit O).

         In his petition before this Court, filed May 30, 2018 (see Doc. 12, at 12), [1] Lucy raises the following issues which he claims entitle him to federal habeas corpus relief: (1) the trial judge should have recused himself because of a disqualifying conflict of interest;[2] (2) he was never arraigned by the trial court on the underlying charge; (3) he was denied his right to call witnesses on his behalf;[3] and (4) he was not allowed to submit evidence on his behalf.[4] (Doc. 12, at 6-8).[5] Respondent contends that this Court is procedurally barred from reaching the merits of each of Lucy's four asserted claims and that, besides, his second, third and fourth claims were denied on the merits and Lucy cannot show that the state court's decision was contrary to established federal law as set forth by the Supreme Court or that such decision constitutes an unreasonable application of the law to the facts. (See Doc. 20, at 2-3 & 11-19.)

         This cause is before the Court on the petition (Doc. 12), Respondent's answer with attachments (see Doc. 20), Petitioner's response (Doc. 27) to the undersigned's August 29, 2018 show cause order (Doc. 21), and Lucy's rebuttal to the State's answer (Doc. 28). A full, thorough review of the record has been completed and it is determined that it contains sufficient facts upon which the issues under consideration may be properly resolved. Therefore, no evidentiary hearing is required. Compare Means v. Secretary, Dep't of Corrections, 433 Fed.Appx. 852, 855 (11th Cir. July 12, 2011) (“[W]here ‘the record refutes [a petitioner's] factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing.'”) (citation omitted)), cert. denied, 565 U.S. 1217, 132 S.Ct. 1580, 182 L.Ed.2d 198 (2012) with Allen v. Secretary, Florida Dep't of Corrections, 611 F.3d 740, 745 (11th Cir. 2010) (“A district court is not required to hold an evidentiary hearing if the claims ‘are merely conclusory allegations unsupported by specifics,' . . . or ‘if the record refutes the applicant's factual allegations or otherwise precludes habeas relief[.]'”), cert. denied, 563 U.S. 976, 131 S.Ct. 2898, 179 L.Ed.2d 1192 (2011). It is now herein RECOMMENDED that the Court find that it is procedurally barred from reaching the merits of the claims raised by Lucy (Doc. 12).

         FACTUAL BACKGROUND

         On June 21, 2013, Lucy was charged by indictment with offering a false instrument for recording against a public servant in violation of Alabama Code § 13A-9-12(c). (Doc. 20, Exhibit A, Part I, at 35 (“The GRAND JURY of said County charge, that, before the finding of this indictment William N. Lucy whose name is to the Grand Jury otherwise unknown than as stated, did on or about December 19, 2012 offer a false instrument for recording in the Office of the Judge of Probate of Mobile County against a public servant, to wit: a written instrument and associated attachments recorded in Book 6968, page 1138 and Book 6968, page 1143, in the office of the Judge of Probate of Mobile County, which instrument and attachments falsely purport to represent a lien, writ of seizure and writ of execution on non-existent judgment in the amount of $42, 000, 000, against Jojo Schwarzauer, Clerk of the Circuit Court of Mobile County who is a public servant, knowing that said instrument relating to or affecting real or personal property, or an interest therein, or directly affecting contractual relationships of said public servant contains a material false statement or materially false information, to wit, the existence of a judgment or instrument evidencing an indebtedness against said public servant in the amount of $42, 000, 000, and with the intent to defraud, intimidate or harass the said public servant, or to impede the public servant in the performance of her duties, presented or offered said instrument to a public office or public employee, to wit, the Office of the Judge of Probate of Mobile County, with the knowledge that it will be registered, filed or recorded or become part of the records of that public office or public employee, in violation of 13A-9-12(c) of the Code of Alabama, against the peace and dignity of the State of Alabama[.]”)).

         The trial record is undisputed that the written instrument(s) offered for recording in the Mobile County Probate Court against Mobile County Circuit Clerk Jo Jo Schwarzauer consisted of a Notice of First and Final Warning (see Doc. 20, Exhibit A, Part 2, T.T. 138 & State's Exhibit 1) and a Commercial Lien (see Id. at 138-29 & State's Exhibit 2). Both of these instruments were recorded in the Mobile County Probate Court on December 19, 2012. (T.T. 139; see also Id. at 141 (testimony that Exhibit 1 was recorded in Probate Book 6968, Page 1138, consisting of 5 pages and Exhibit 2 was recorded in Book 6968 beginning at page 1143, consisting of 6 pages, in the Mobile County Probate Court)). The face of Exhibit 1, the Notice of First and Final Warning, references that it is a Commercial Lien addressed to Jo Jo Schwarzauer from William N. Lucy regarding a breach of contract and breach of oath of office (id.), and reads as follows:

Ms. Schwarzauer, please be advised since you have refused to uphold the laws of the State pf Alabama and its Constitution as well as the Constitution of these United States of America at Amendments 5 and 14 dealing with due process of law guaranteed to all citizens, you, Ms. Schwarzauer, has failed to uphold the oath you took when you entered the office of circuit clerk[, “] to uphold and defend the Constitution and laws of the State of Alabama[.”] This was a contract with the people, Ms. Schwarzauer. I am one of those peoples. [] Ms. Schwarzauer, you breached this contract to uphold the law when you refused to enter judgment in favor of William N. Lucy, counter plaintiff in civil action CV11-0852 as prescribed by Alabama law at rule number 55(b)(1) Alabama Rules of Civil Procedure. Pursuant to this law at Rule 55(b)(1) you, Ms. Schwarzauer, is required to enter judgment in favor [of] counter plaintiff William N. Lucy in civil action CV11-0852 for the sum of forty-two million dollars demanded in counter plaintiff's complaint. Ms. Schwarzauer, unless you enter judgment in favor of counter plaintiff William N. Lucy in civil action CV11-0852 or show cause why you cannot in objection to counter plaintiff's affidavit hereto attached[, ] Ms. Schwarzauer, you have thirty days from the date of this notice to enter judgment in favor of the counter plaintiff or show legal reasons why you cannot or I will enter a commercial lien on all of your property. This include[s] []real estate, cars, bank accounts, stocks, bonds, et[c.] and anything of value to recover the forty-two million dollars I'm due but refuses to uphold the law and enter judgment in favor of counter plaintiff in civil action number CV11-0852. Your immediate attention to this matter will be to your benefit.

(T.T. 141-43). This First and Final Warning was dated and signed by Lucy on October 22, 2012 (id. at 143), as was the attached Statement of Truth Affidavit (id. at 144), [6] and sent to Jo Jo Schwarzauer by certified mail, along with a copy of Schwarzauer's Oath of Office (id. at 144).[7]

         The primary documents comprising State's Exhibit 1 were executed by Lucy and sent to Schwarzauer on October 22, 2012, but were not recorded in the Mobile County Probate Court, along with the documents making up State's Exhibit 2, until December 19, 2012 (see Id. at 139), almost sixty (60) days later.[8] State's Exhibit 2 was the Commercial Lien recorded by Lucy in the Probate Court of Mobile County on December 19, 2012 and consisted of four attachments, namely, a Notice of Default [and] Affidavit of Notice of Amount Due, a Notice of Amount Due and Right to Cure, a Writ of Execution, and a Writ of Seizure, all of which were executed by Lucy on December 17, 2012. (See T.T. 145-48). The Notice of Default advised Schwarzauer that she was “in default of an opportunity to respond to the commercial affidavit” sent to her “on October 23, 2012 by certified mail[, ]” same giving her the opportunity “to rebut the claims” made against her, and, therefore, since she “failed to answer or give any defense to said affidavit[, a] default judgment” was “being recorded” against her. (See T.T. 145). The Notice of Amount Due and Right to Cure advised Schwarzauer that the damages caused by her injury to Lucy “by defalcation, dereliction of duty, default and unauthorized [‘]refusal to record[']” was the “sizeable amount [of] forty-two million dollars” but that the Mobile County Circuit Court Clerk had the “right to cure this by entering judgment in favor of affiant, William N. Lucy, in the amount of forty-two million dollars ($42, 000, 000.00) upon receipt of this notice.” (Id. at 147).[9] The Writ of Execution reads, as follows: “This writ is to inform you, Ms. Schwarzauer, that upon notice of this judgment[, ] execution of same is hereby granted and any and all means available can be used by affiant, William N. Lucy, to collect the same.” (Id. at 147-48.) And finally, the Writ of Seizure notified Schwarzauer that Lucy had the right (and could use any means at his disposal) to collect the $42, 000, 000.00 “judgment due him in cross complaint CV 11-0852[, ]” including the seizure of any and all things of value held by or owned by Schwarzauer-whether, community or non-community property, or real or personal property (including, all bank accounts, automobiles, jewelry, furnishings, certificates of deposit, stocks, bonds, etc.). (See Id. at 148.)

         It is clear based on a reading of all of the foregoing documents that Lucy believed on December 19, 2012, long before then, and to this day that though Schwarzauer entered default against all counter-defendants in CV-2011-000852 on December 7, 2011 (compare T.T. 164 with State's Exhibits 3-6), she was required by the provisions of Rule 55(b)(1) to enter a default judgment against those counter-defendants in the amount of $42, 000, 000.00 as set forth in his counterclaim (see, e.g., T.T. 147) and that her failure to enter this default judgment allowed him to assert default against the Circuit Clerk in that same amount and recover any of her assets “to collect the judgment due him in cross complaint CV11-0852 of forty-two million dollars[.]” (Id. at 148). This remained Lucy's position at trial (see, e.g., T.T. 206-07), despite the October 15, 2012 Order of Circuit Judge Robert H. Smith setting aside the entries of default and holding them for naught and dismissing Lucy's counterclaim against Steven J. Cox with prejudice by granting Cox's motion for summary judgment on the basis that the matter sought to be litigated by Lucy in his counterclaim filed in the ejectment action, CV 11-0852, that is, the piece of property at 413 Chin Street in Mobile, Alabama (and, as well, another piece of property at 2061 Tucker Street), had already been adjudicated in the Circuit Court of Mobile County, Alabama and the Alabama Court of Civil Appeals. (Compare, e.g., T.T. 166-71 with State's Exhibit 7).[10]

         So, despite the sum and substance of Judge Smith's October 15, 2012 Order, Lucy admitted during the hearing conducted in Probate Court on January 17, 2013, on the Petition to Nullify and Expunge a Recorded Instrument filed by Jo Jo Schwarzauer, that he recorded/filed the lien on December 19, 2012 with knowledge of Judge Smith's Order and despite there being no default judgment against the Circuit Clerk. (Compare T.T. 179-82 with State's Exhibit 8). On January 18, 2013, Probate Judge Don Davis entered an Order which, in relevant measure, granted Schwarzauer's Petition to Nullify and Expunge a Recorded Instrument, declared all such documents recorded by Lucy to be null and void, and instructed the Clerk of the Probate Court to redact, nullify and expunge and otherwise remove all those documents from the public records maintained by the Probate Court. (Compare Id. with T.T. 154-55.) Judge Davis' Order otherwise reads, in relevant measure, as follows:

Lucy acknowledged that he prepared and executed the documents [recorded in Probate Court on December 19, 2012 in Book 6968, page 1138 and Book 6968, page 1143].
Lucy's explanation for the recording of the documents is[:] (1) [] the Petitioner is an elected official and as such has a contractual relationship with the general public which includes Lucy, (2) the Petitioner failed to comply with Lucy's request that a judgment be entered against Stephen J. Cox in the Circuit Court lawsuit, (3) the Petitioner's failure to act upon Lucy's judgment request violates Rule 55 of the Alabama Rules of Civil Procedure, (4) Lucy gave notice to the Petitioner that Lucy asserted a claim against the Petitioner for the sums that Lucy believes Stephen J. Cox owes Lucy in the Circuit Court Lawsuit, (5) the Petitioner failed to respond to Lucy's notice of claim, (6) the Petitioner breached the Petitioner's contract with the general public and Lucy specifically, thus Lucy has a commercial lien against the [P]etitioner, and (7) as a result of the Petitioner's failure to respond to Lucy's claim, Lucy was entitled to recover from the Petitioner the amount that Lucy believes Lucy is due to receive from Stephen J. Cox, forty-two million dollars. Lucy's explanation is not grounded in the law.
The documents contain materially false information and were filed by Lucy with knowledge of their falsity and knowing that the documents would be recorded and registered in the public record maintained by this Court. More specifically[:] (1) Lucy has not filed an action against the Petitioner, (2) no judgment was ever entered by any court in favor of Lucy against the [P]etitioner, (3) there is no basis in Alabama law for the [“]Commercial Lien, [”] [“]Notice of Default-Affidavit of Amount Due, [”] [“]Notice of Amount Due and Right to Cure, [”] [“]Writ of Execution, [”] and/or [“]Writ of Seizure[”] recorded by Lucy and adverse to the Petitioner, and (4) no judgment or any other instrument exists that evidences any indebtedness of the Petitioner to Lucy. The documents recorded by Lucy involve and detrimentally affect the Petitioner's interest and possibly future interest in real and personal property as well as the Petitioner's ability to enter into contractual relationships with others.
On December 27, 2012 the Court served upon Lucy by United States Certified Mail and United States First Class Mail[] the Court's [“]Notice of Petition to Nullify a [R]ecorded [D]ocument[”] [(“Notice”)]. In the Notice Lucy was advised of[:] (1) the petition filed by the [P]etitioner, (2) the hearing to be conducted January 17, 2013, (3) Lucy's ability to file with this Court any evidence or proof to support the legitimate and legal filing of the documents within fourteen days of the issuance of the [N]otice, (4) failure on the part of Lucy to respond to the [N]otice within fourteen days could result in the documents being declared null and void, (5) Act of Alabama 2012-209 makes it a crime with penalties for offering a document to a public office or employee for recording, registration, filing, etcetera, that contains material false statements or information with intent to defraud, and (6) Lucy obtaining legal advice and/or counsel. Lucy failed or refused to take any action with regard to the documents after said notice was given by the Court, except to request the issuance of several subpoenas for the January 17, 2013 hearing.
Upon consideration of all the evidence and argument presented, the Court is of the opinion and therefore concludes that: (1) the documents filed by Lucy with this Court's recording division are materially false, (2) Lucy knew that the documents were false at the time Lucy recorded the documents in this Court's recording division, (3) the Petitioner's Petition to Nullify and Expunge a [R]ecorded [I]nstrument is due to be granted, and (4) the relief sought by the Petitioner is due to be granted.

(Compare T.T. 151-54 with State's Exhibit 8, at 1-2.) Schwarzauer testified during Lucy's criminal trial that she had to file the Petition in Mobile County Probate Court because Lucy's recorded lien could have caused her serious problems in the event she tried to get a loan, refinance her house, buy another home, etc. (T.T. 184.) The Mobile County Circuit Court stated she had never before been attacked in this manner and she has been made to deal with this matter since 2012 simply because Lucy did not get a judgment he thought he should get and decided to take his frustration out by personally blaming her. (See id.)

         Lucy, who represented himself during the trial of this cause, testified that he was a “small real estate investor[]” who had several properties taken from him “systematically by a couple of guys.” (T.T. 204-05.) Petitioner then testified under oath that he filed suit against those unidentified individuals, then filed for a default judgment against them, which was granted and entered by the Clerk on December 7, 2011. (See Id. at 205-06.) The remainder of Lucy's testimony, however, reflects that no such judgment was entered and, instead, only entries of default were entered. (Id. at 206-07.)

[The judgment] was for a sum of forty-two million dollars which the case I had sued the other people for, that's for the amount that I sued the other parties for because of the real estate. Well, see, according to Rule 55(b)(1) of the Alabama Rules of Civil Procedure it states in pertinent part that if you have a sum certain or the sum could be made certain by computation, which means if you can compute it and come up with a certain sum, the clerk shall enter the judgment. You don't have to go through the Court. The clerk has this power. So once that was brought to their attention I submitted my documents and she entered the default. But she didn't enter the judgment. The rules state that she shall enter a default judgment because of the amount certain and she refused to do that. So then I notified her and I notified her several times. Even in the documents that was submitted by the State I gave her a right to cure. This was not an intent to harass her. Otherwise, you would have just filed documents and not said anything.

(Id. at 206-07 (emphasis supplied)). After Lucy began making comments about the trial court's quashing of subpoenas, being thrown in jail without bond, and filing suit in federal court for false imprisonment, the court cut off any further opportunity for Petitioner to give testimony. (See Id. at 207-09.) In addition, while the Court allowed certain of Lucy's exhibits (1-6) to be marked for identification, they were not admitted into evidence because Lucy had lost his right to testify. (Id. at 211-12; see also Id. At 209-10).[11]

         The trial court charged the jury on the elements of offering a false instrument for recording against a public servant in the following manner:

A person commits the crime of offering a false instrument for recording against a public servant if a person offers for recording a written instrument which relates to or affects the real or personal property . . . or an interest therein or a contractual relationship of a public servant, knowing that the written instrument contains a material false statement or [] material false information with the intent to defraud, intimidate or harass the public servant or to impede the public servant in the performance of his or her duties. To convict, the State of Alabama must prove beyond a reasonable doubt each of the following elements of the offense of offering a false instrument for recording against a public servant. One, that the Defendant offered a written instrument for recording in a public office against a public servant. Two, that the written instrument relates to or affects the real or personal property or an interest therein or a contractual relationship of the public servant. Three, that the Defendant filed the instrument knowing that it contained a material false statement or material false information. Four, the Defendant did so with the intent [to] defraud, intimidate or harass the public servant or to impede the public servant in the performance of her duties, Five, the Defendant acted intentionally.
A public servant is any officer or employee of government including legislators and judges and any person or agency participating as an advisor, consultant or otherwise performing a public function.
A person acts intentionally with respect to a result or to conduct when it is his or her purpose to cause that result or to engage in that conduct.
Now, I have used the word intent in my charge. I charge you that a person acts intentionally with respect to conduct described by statute defining an offense when it is his or her purpose to cause that result or to engage in that conduct. Intent is a state of mind. Intent can be formed in an instant. There is no requirement in the law that intent to commit a crime be formed well in advance of committing a crime or that intent be premeditated. There's generally no way to prove intent by positive direct evidence. So you, a jury, have a right to take into consideration all of the evidence of all of the surrounding facts to determine what a person's intent was at a given time.

(T.T. at 242-43, 243-44 & 245-46).

         On January 6, 2015, a jury of Lucy's peers found him guilty of the offense of offering a false instrument for recording against a public servant as charged in the indictment under Alabama Code § 13A-9-12(c). (T.T. 263; see also Id. at 264-65 (polling of the individual jurors)). On January 26, 2015, Lucy was sentenced to a 30-year term of imprisonment under Alabama's Habitual Felony Offender Statute. (T.T. 317.) Thereafter, Lucy entered oral notice of appeal. (Id.).

         On appeal, Lucy raised two issues, namely, that the trial court committed reversible error when it afforded him the right to represent himself and when it admitted into evidence his three prior felony convictions. (See Doc. 20, Exhibit B, at 4-5 (Lucy's appellate brief)). The Alabama Court of Criminal Appeals rejected Lucy's two appellate claims and affirmed his conviction and sentence in a 10-page unpublished memorandum opinion. (Doc. 20, Exhibit D) Lucy's application for rehearing (Doc. 20, Exhibit E) was overruled on March 11, 2016 (Doc. 20, Exhibit F). And though Lucy did file a petition for writ of certiorari (Doc. 20, Exhibit G), the Alabama Supreme Court, on April 14, 2016, instructed Lucy to show cause why the petition should be considered timely filed (Doc. 20, Exhibit H) and then, by subsequent order entered on April 29, 2016, Alabama's High Court struck the petition for writ of certiorari for failure to comply with Ala.R.App.P. 39(c)(2) (Doc. 20, Exhibit H-1).

         Lucy filed a Rule 32 petition in the Circuit Court of Mobile County, Alabama collaterally attacking his conviction and sentence on October 26, 2016. (See Doc. 20, Exhibit J, March 21, 2017 ORDER, at 2.) In his Rule 32 petition, Lucy raised numerous claims but among them the same claims he raises in the instant habeas corpus petition. (Compare Doc. 20, Exhibit J, PETITION FOR RELIEF FROM CONVICTION OR SENTENCE, at 9, 10 & 14 (“The 6th Amendment to the United States Constitution states ‘in all criminal prosecutions the accused shall enjoy the right to have a compulsory process for obtaining witnesses in his favor' [and] Petitioner was denied this right as the trial judge quashed the subpoenas of all the witnesses subpoenaed by Petitioner to testify on his behalf. . . . The 14th Amendment to the United States Constitution states ‘no State shall deny any person within its jurisdiction the equal protection of [the] laws' [and] Petitioner was denied this right as the trial judge (Judge Joseph Johnston) was the defendant in a civil action brought by this Petitioner in the United States District Court that was pending during the time Petitioner was on trial in the Mobile County Circuit Court (Jan. 6, 2015) and also reviewed on the same day again by the U.S. District Court as the day trial Judge (Judge Johnston) sentenced Petitioner to prison (Jan. 26, 2015). ‘Clear Conflict of Interest'. [] The 14th Amendment to the United States Constitution states ‘no state shall deprive any person of life, liberty or property without due process of law' [and] Petitioner was denied this right, as the trial judge ordered all evidence submitted by Petitioner to prove his innocence labeled as ‘exhibits' and withheld from [the] jury during their deliberation[s][12]. . . . Petitioner was ‘NOT ARRAIGNED' so the trial court lacked the authority and abused its discretion by trying petitioner and sentencing him to prison without first formally charging him with a crime and making sure he understood the charge against him.”) with Doc. 12 (asserting that his trial judge had a conflict of interest and should have recused himself, that he has never been arraigned, that he was denied the right to call witnesses on his behalf, and that he was not allowed to submit evidence on his behalf)). By order dated March 21, 2017, Mobile County Circuit Judge Jay York summarily denied Lucy's Rule 32 petition without holding an evidentiary hearing (Doc. 20, Exhibit J, ORDER). The trial court determined that Petitioner's claim that he was never arraigned lacked merit and was precluded under Ala.R.Crim.P. 32.2(a)(2) & (5) (id. at 2 & 7); his Sixth Amendment compulsory process claim was precluded under Rule 32.2(a)(2) of the Alabama Rules of Criminal Procedure (id. at 3-4); his Equal Protection claim was precluded under Ala.R.Crim.P. 32.2(a)(2) & (4) (id. at 4-5); and his claim that he was not allowed to admit all of his evidence at trial was precluded because it was raised and addressed at trial (id. at 5).

         Lucy appealed and at various portions in his appellate brief, Petitioner asserted the foregoing claims, three of those claims being best encapsulated by his argument that he was denied due process and a fundamentally fair trial on account of the trial judge's conflict of interest, as well as the trial judge's failure to allow him to call witnesses or present evidence on his behalf. (See Doc. 20, Exhibit K, at 20; see also id. at 13 & 15-16.) The Alabama Court of Criminal Appeals affirmed the trial court's summary dismissal of the Rule 32 petition by unpublished memorandum decision entered on October 6, 2017. (Doc. 20, Exhibit M).

The instant petition was deemed filed on October 26, 2016. In the petition, Lucy argued that: (1) he was not arraigned; . . . (4) he was denied the right to subpoena witnesses on his behalf; . . . (8) he was not allowed to introduce all of his evidence at trial . . . .
On February 23, 2017, the State filed a response and motion to dismiss arguing that Lucy's petition was time-barred under Rule 32.2(c), Ala.R.Crim.P., precluded under Rules 32.2(a) and 32.2(b), and lacked specificity. On March 6, 2017, Lucy filed a reply to the State's response wherein he argued: (17) he was denied due process because, he said, the trial judge had a conflict of interest. On March 21, 2017, the circuit court issued an order dismissing Lucy's petition.
. . .
On appeal, Lucy appears to reassert claims (1), (4), (8), (13), [and] (14). Lucy, however, does not appear to raise in his brief on appeal claims (2), (3), (5)-(7), (9)-(11), (12), and (15)-(17), and thus, those claims are deemed abandoned. Brownlee v. State, 666 So.2d 91, 93 (Ala.Crim.App. 1995).
Claim (1), as noted above, alleges that Lucy was never arraigned. Lucy's claim is refuted by the record and is, therefore, without merit. Indeed, the record shows that Lucy was initially arraigned on February 13, 2014, before Judge Michael Youngpeter and that after Judge Youngpeter recused, Lucy was rearraigned before Judge Joseph Johnston on April 23, 2014. Accordingly, Lucy is not entitled to relief on this claim.
Claim (4), as noted above, alleges that Lucy was denied the right to subpoena witnesses on his behalf. In its sentencing order after trial, the circuit court held:
The witness subpoenas you filed with the Court were going to command, under the seal of this Court, dozens of citizens (sic) who had no knowledge of the facts of this case to appear at the trial on January 5, 2015. Subpoenas for witnesses, such as television reporters and anchormen were filed who had no firsthand knowledge of the facts of this case. Some witness subpoenas were filed in the week prior to the trial. This was discourteous, as all of these witnesses appear to have jobs and, even if they had possessed material evidence, should have been afforded more time than a few days' notice that they needed to appear.
Based on that, Lucy failed to provide any relevant information regarding the witnesses' testimony. Accordingly, Lucy is not ...

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