United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
M. BORDEN, UNITED STATES MAGISTRATE JUDGE
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.
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.
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
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.
HABEAS PETITION AND RESPONDENTS' ARGUMENTS
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.
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.
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)).
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.
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.
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.
Exhaustion and Default Principles
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).
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.
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).
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).
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).
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.
Review on the Merits
claims properly before a federal court, a writ of habeas
corpus shall be granted only if the prior adjudication of the
(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;
(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).
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
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.
Right of Confrontation
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.
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)).
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
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