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L.K.L. v. Ellington

United States District Court, M.D. Alabama, Northern Division

December 10, 2018

L.K.L., JR., Petitioner,
v.
EDWARD ELLINGTON, et al., Respondents.

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          GRAY M. BORDEN, UNITED STATES MAGISTRATE JUDGE

         Petitioner L.K.L., Jr. (“L.K.L.”), an inmate with the Alabama Department of Corrections, filed this petition for habeas corpus relief pursuant to 28 U.S.C. § 2254, challenging his conviction in the Circuit Court for Pike County, Alabama, for sexual abuse in the first degree. Doc. 1. For the following reasons, the court recommends that the petition be denied and the case dismissed.

         I. STATE-COURT PROCEEDINGS

         A jury convicted L.K.L. of first degree sexual abuse of his minor daughter, A.L., in violation of Alabama law in the case styled as L.K.L. v. State, No. 13-1294 (Ala. Ct. Crim. App. 2015). Doc. 7-6 at 1. He was sentenced to ten years in prison. Doc. 7-6 at 1.

         L.K.L. appealed, raising two issues. First, he argued that the circuit court erred in refusing to allow defense counsel to cross-examine the victim about out-of-court statements she made in a video recording at the Pike County Child Advocacy Center (“CAC”). Docs. 7-5 & 7-6 at 5. The Court of Criminal Appeals held that, under the circumstances before it, the circuit court's refusal to allow the defense to show the CAC video to the jury did not deprive L.K.L. of an opportunity to impeach the credibility of the victim. Doc. 7-6 at 14. Second, L.K.L. argued that the circuit court erred by reinstructing the jury on the use of common sense and by adding commentary to the pattern jury instructions, thereby modifying the Alabama Pattern Instructions and rendering the trial fundamentally unfair. Docs. 7-5 at 24 & 7-6 at 14. The Court of Criminal Appeals held that there was no indication of prejudice or abuse of discretion inherent in the trial judge's comments, and L.K.L. made only “a bare allegation that the instructions were error without arguing how these instructions prejudiced him in any way.” Doc. 7-6 at 16.

         The Court of Criminal Appeals denied L.K.L.'s application for rehearing. Docs. 7-7 & 7-8. The Alabama Supreme Court denied further review. A certificate of judgment issued on September 11, 2015. Docs. 7-9, 7-10 & 7-11.

         II. HABEAS PETITION AND RESPONDENTS' ARGUMENTS

         L.K.L. raises the same claims for § 2254 relief that he raised in his direct appeal. See Docs. 1, 7-5 & 7-9. First, he argues that the trial court erred in refusing to allow the defense to use the victim's statements during the CAC video to impeach her testimony. He argues that this decision violated his right under the Sixth Amendment to the United States Constitution to confront the witnesses against him. Doc. 1 at 17-21 & 28-34. He argues the state court's actions prejudiced his case to such a degree that he is entitled to a new trial. Doc. 1 at 19. Second, he argues “the trial court erred in re-instructing the jury and therein adding additional commentary to the pattern jury instructions.” Doc. 1 at 22. He argues that this prejudiced him and impaired his right to a fair and impartial trial. Doc. 1 at 22-24.

         Respondents admit that the petition is timely. Doc. 7 at 3. On L.K.L.'s first claim, they argue that his challenge to the exclusion of the videotaped CAC interview under the Alabama Rules of Evidence is not actually a federal claim but rather a challenge to application of state evidentiary rules cloaked as a federal constitutional claim. Doc. 7 at 6. They argue that state evidentiary rulings can be the basis of § 2254 relief only when “the error was of such magnitude as to deny the petitioner his right to a fair trial[.]” Doc. 7 at 6 (citing Alderman v. Zant, 22 F.3d 1541, 1555 (11th Cir. 1994)). They argue that the exclusion of the evidence did not render L.K.L.'s trial fundamentally unfair. Doc. 7 at 7. Respondents further argue that the Court of Criminal Appeals applied Alabama law in determining the circuit court did not err in excluding the evidence. Doc. 7 at 7-8. They argue L.K.L. does not show that the state-court decision was contrary to Supreme Court precedent or was an unreasonable determination of the facts under 28 U.S.C. § 2254(d)(1)- (2). Doc. 7 at 9.

         Second, they argue that L.K.L.'s claim challenging the jury instructions also is not a true federal claim but rather an issue of state law governing jury instructions. Doc. 7 at 10. They argue L.K.L. did not claim a federal constitutional violation when he objected to the jury instructions in state court and that simply citing a federal case or making passing reference to various amendments to the Constitution does not fairly present a federal issue to the state court. Doc. 7 at 11-12. Therefore, they argue, L.K.L. did not fairly present a federal issue in state court, which must be clear enough for a “reasonable reader [to] understand each claim's particular legal basis and specific factual foundation.” Doc. 7 at 12 (quoting Hunt v. Comm'r, Ala. Dep't of Corr., 666 F.3d 708, 730 (11th Cir. 2012)). As for the alleged jury instruction error, Respondents maintain that a due process error does not occur “unless an erroneous instruction, when viewed in light of the entire trial, was so misleading as to make the trial unfair.” Id. at 10 (quoting Agan v. Vaughn, 119 F.3d 1538, 1545 (11th Cir. 1997)).

         This court entered an order providing L.K.L. an opportunity to respond to the answer and advising L.K.L. 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. 8.

         L.K.L. responded. Doc. 11. He argues that the denial of his constitutional right to cross examine his accuser and impeach a witness prejudiced him “to such a degree as to cause a denial of his rights to due process and precluded [him] from receiving a fair and impartial trial.” Doc. 11 at 2. L.K.L. insists he is not “couching an evidentiary ruling under a constitutional right.” Doc. 11 at 5. He argues that the rules of evidence are “simply methods by which the defendant can protect and enforce his Sixth Amendment right to confrontation.” Doc. 11 at 6. He argues that if he procedurally defaulted on his claim, he can avoid the default based on a miscarriage of justice because “[n]othing could be more unjust and support a fundamental miscarriage of justice than the denial of a defendant's right to confront witness against him.” Doc. 11 at 6.

         After reviewing the § 2254 petition, Respondents' answer, L.K.L.'s response, the state-court record, and applicable federal law, the court concludes that no evidentiary hearing is required and that 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.

         III. APPLICABLE STANDARDS

         A. Exhaustion and Default Principles

         The 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).

         Federal habeas review also is 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). The court “presume[s] that there is no independent and adequate state ground for a state court decision when the decision ‘fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion.'” Coleman, 501 U.S. at 735 (quoting Michigan v. Long, 463 U.S. 1032, 1040-41 (1983)). In the rest of the cases, however, the court makes no such presumption. Coleman, 501 U.S. at 739.

         If the last reasoned opinion “fairly appear[s] to rest primarily upon federal law, ” then the court presumes the subsequent order relies on federal law. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) (citation omitted). Similarly, if the last reasoned order invoked procedural default, then the court “presume[s] that a later decision rejecting the claim did not silently disregard that bar and consider the merits.” Id. The court presumes a subsequent, unexplained state-court decision adopted the reasoning of the prior decision, but the State may rebut the presumption. Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018).

         If a state court plainly holds that a claim is barred under an adequate and independent state-law ground, then this federal court may not review the claim even if the state court alternatively rejected the federal claim on the merits. See Harris v. Reed, 489 U.S. 255, 264 n.10 (1989) (holding that “a state court need not fear reaching the merits of a federal claim in an alternative holding” when the adequate and independent state ground “is a sufficient basis for the state court's judgment”); see Ford v. Georgia, 498 U.S. 411, 423-24 (1991) (holding that state procedural default is not an “independent and adequate state ground” barring subsequent federal review unless the state rule was “‘firmly established and regularly followed'” at the time it was applied); Ward v. Hall, 592 F.3d 1144, 1156-57 (11th Cir. 2010) (holding that a state court's procedural bar can preclude federal review if three conditions are met).

         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, that petitioner “meets the technical requirements for exhaustion; there are no state remedies any longer ‘available' to him.” Coleman, 501 U.S. at 732. But the petitioner has “procedurally defaulted” the federal claim under an adequate and independent state rule such as the timely filing requirements. See Id. at 750; see also Gray v. Netherland, 518 U.S. 152, 161-62 (1996) (holding that 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).

         This 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. [72], 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 innocent. Id.

Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir. 2003); see also Coleman, 501 U.S. at 750.

         B. Review on the Merits

         For claims properly before a federal court, a writ of habeas corpus shall be granted only if the prior adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was 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). The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) “modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas ‘retrials' and to ensure that state-court convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693 (2002). A state-court decision is “contrary to” federal law under § 2254(d)(1) “if the state court applies a rule different from the governing law set forth in our cases, or if it decides a case differently than we have done on a set of materially indistinguishable facts.” Bell, 535 U.S. at 694. Under the “unreasonable application” standard, this court may grant a writ only if the state court identified the correct governing federal legal principle but applied that principle to the facts of a petitioner's case in an objectively unreasonable way. See Williams v. Taylor, 529 U.S. 362, 411-13 (2000) (O'Connor, J., delivering the opinion of the Court with respect to Part II). The applicable court is the United States Supreme Court, not lower courts. Renico v. Lett, 559 U.S. 766, 779 (2010). “Objectively unreasonable” means something more than an “erroneous” or “incorrect” application of clearly established law, and a reviewing federal court may not substitute its judgment for the state court's even if the federal court, in its own independent judgment, disagrees with the state court's decision. See Lockyer v. Andrade, 538 U.S. 63, 76 (2003). The reviewing court “must determine what arguments or theories supported or . . . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court.” Harrington v. Richter, 562 U.S. 86, 102 (2011). The Supreme Court recently reemphasized this deferential standard, holding that “[t]he state court decision must be ‘so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.'” Woods v. Etherton, 136 S.Ct. 1149, 1151 (2016) (citation omitted). “[R]eview under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 180 (2011).

         As for the unreasonable-determination-of-facts prong under § 2254(d)(2), the federal court “may not characterize these state-court factual determinations as unreasonable ‘merely because [we] would have reached a different conclusion in the first instance.'” Brumfield v. Cain, 135 S.Ct. 2269, 2277 (2015) (citation omitted). “If [r]easonable minds reviewing the record might disagree about the finding in question, on habeas review that does not suffice to supersede the trial court's . . . determination.” Id. (quotation marks and citations omitted). Factual issues made by a state court are presumed correct, and the petitioner has “the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). The Supreme Court has recognized there is a question about the relationship between § 2254(d)(2)'s “unreasonable determination of the facts” standard and § 2254(e)(1)'s presumption, but it has “not yet defined the precise relationship between [them.]” Brumfield, 135 S.Ct. at 2282 (quotation marks and citation omitted). If a petitioner failed to develop the factual basis of a claim in state court, the federal court cannot hold an evidentiary hearing unless the petitioner shows “the claim relies on . . . a new rule of constitutional law, made retroactive . . .; or . . . a factual predicate that could not have been previously discovered through the exercise of due diligence; and . . . the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2). “Section 2254(e)(2) continues to have force where § 2254(d)(1) does not bar federal habeas relief.” Cullen, 563 U.S. at 185.

         Except for certain kinds of error that require automatic reversal, even when a state petitioner's federal rights are violated “relief is appropriate only if the prosecution cannot demonstrate harmlessness.” Davis v. Ayala, 135 S.Ct. 2187, 2197 (2015); see also Glebe v. Frost, 135 S.Ct. 429, 430-31 (2014) (“Only the rare type of error-in general, one that infect[s] the entire trial process and necessarily render[s] [it] fundamentally unfair- requires automatic reversal.”) (quotation marks omitted and alterations in original). “Harmlessness” in the context of section 2254 means “the federal court has grave doubt about whether a trial error of federal law had substantial and injurious effect or influence in determining the jury's verdict.” Davis, 135 S.Ct. at 2197-98 (quotation marks omitted). These strict limitations reflect that habeas relief is granted sparingly, reserved for “extreme malfunctions in the state criminal justice systems” and “not as a means of error correction.” Greene v. Fisher, 565 U.S. 34, 38 (2011) (quotation marks omitted). Within this disciplined framework, the court now addresses L.K.L.'s claims.

         IV. DISCUSSION

         A. Right of Confrontation

         The Sixth Amendment, applied to the states by the Fourteenth Amendment, provides that “[i]n all prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI. Confrontation Clause cases generally fall into two broad categories-those involving out-of-court statements by a witness who a defendant cannot “confront, ” and those involving restrictions on cross-examination. See Kentucky v. Stincer, 482 U.S. 730, 737-38 (1987). L.K.L.'s claim falls into the second category.

         Cross-examination, including the opportunity to impeach testimony, “is the principal means by which the believability of a witness and the truth of his testimony are tested.” Davis v. Alaska, 415 U.S. 308, 316 (1974); Douglas v. Alabama, 380 U.S. 415, 418 (1965). “Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness' story to test the witness' perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness.” Davis, 415 U.S. at 316. Nevertheless, the Confrontation Clause guarantees only “an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Stincer, 482 U.S. at 739 (quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985)).

         In L.K.L.'s case, A.L.'s mother testified about out-of-court statements that A.L. made to her. Doc. 7-3 at 156-200 (under seal). A.L. also testified at trial. Doc. 7-6 at 2. During the cross-examination of A.L., defense counsel attempted to ask A.L. about statements A.L. made during the interview at the CAC. Doc. 7-6 at 5. Defense counsel argued that the prosecution, through the mother's testimony, introduced A.L.'s out-of-court statements. Doc. 7-6 at 10-11.

         The trial court ruled that because A.L.'s statements during the CAC interview were hearsay, and the prosecution had not introduced the interview, counsel could introduce only those portions of the interview where A.L. made an inconsistent statement, not the entire interview. Doc. 7-6 at 6-11. Because it is helpful for the review of the issue, this ...


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