United States District Court, N.D. Alabama, Northeastern Division
JOHN H. McLAIN, V, Petitioner,
v.
JEFFERSON S. DUNN, COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS, Respondent.
MEMORANDUM OPINION
This is
an action on a petition for a writ of habeas corpus,
filed pursuant to 28 U.S.C. § 2254 by John H. McLain, V,
a former Alabama state prisoner acting pro
se.[1]McLain challenges his 2009 Alabama
state-court convictions for enticement of a child for immoral
purposes, second-degree sexual abuse, and second-degree
unlawful imprisonment. McLain raises two claims: (1) that his
trial attorneys were constitutionally ineffective because
they failed to inform him of his right to testify at trial
and otherwise affirmatively prevented him from testifying;
and (2) that his convictions on two counts of child
enticement violate double jeopardy. The Magistrate Judge to
whom the case was referred entered a report and
recommendation pursuant to 28 U.S.C. § 636(b),
recommending that the court deny habeas
relief.[2]McLain filed objections to the report and
recommendation, and those objections now are before the
court.[3]
I.
The
facts and procedural history of the case are set forth in
detail in the Magistrate Judge's 61-page report and
recommendation, and will not be repeated here. McLain's
objections include a footnote in which he requests generally
that the court consider all arguments raised in his §
2254 habeas petition itself and his reply to the
State's Supplemental Answer to his petition,
[4]
even though those arguments are not otherwise discussed in
his Objections.[5]
Under
28 U.S.C. § 636(b)(1), a district judge must review and
determine de novo those portions of the report and
recommendation to which a party has raised a specific
objection. Furcron v. Mail Centers Plus, LLC, 843
F.3d 1295, 1308 (11th Cir. 2016). While the court has
discretion to address findings and conclusions to which no
party has raised a specific objection, the statute does not
require the court to do so. See Thomas v. Arn, 474
U.S. 140, 149-50 (1985); Garvey v. Vaughn, 993 F.2d
776, 779 & n.9 (11th Cir. 1993).[6] Moreover, a “specific
objection must ‘identify the portions of the proposed
findings and recommendation to which objection is made and
the specific basis for objection.'” Kohser v.
Protective Life Corp., 649 Fed.Appx. 774, 777 (11th Cir.
2016) (quoting Heath v. Jones, 863 F.2d 815, 822
(11th Cir. 1989)). McLain was expressly advised of his
obligation to make specific objections in the Magistrate
Judge's report and recommendation, [7] and his footnote
alluding to otherwise unspecified arguments in his petition
and earlier briefing does not qualify as a “specific
objection.” Accordingly, this court declines to further
discuss such potential objections, including ones to the
Magistrate Judge's recommended rejection of McLain's
double jeopardy claim. See United States v. Wihbey,
75 F.3d 761, 767 (1st Cir. 1996); Hammonds v.
Jackson, No. 1:13-cv-711-MHS, 2015 WL 12866453, at *6 n.
2 (N.D.Ga. May 18, 2015); Biscayne Towing & Salvage,
Inc. v. M/Y Backstage, No. 13-20041-CV-Lenard/Goodman,
2014 WL 12631851, at *3 (S.D. Fla. Dec. 3, 2014); cf.
Anderson v. Secretary for DOC, 462 F.3d 1319, 1331 (11th
Cir. 2006) (holding that a habeas petitioner was not
entitled to a certificate of appealability when he merely
incorporated by reference arguments made to the district
court); Four Seasons Hotels & Resorts, B.V. v.
Consorcio Barr S.A., 377 F.3d 1164, 1167 n. 4 (11th Cir.
2004) (holding that a party had not properly presented issues
on appeal by virtue of a footnote that summarily purported to
incorporate by reference all arguments made to the district
court).
II.
McLain
has raised two specific objections to the Magistrate
Judge's recommendation to reject his claim that his
attorneys provided him ineffective assistance of counsel by
preventing him from testifying at trial. First, he asserts
that the report and recommendation “incorrectly finds
that the Alabama Court of Criminal Appeals applied the
correct legal standard[s] from Strickland [v.
Washington, 466 U.S. 668 (1984)], and [Nix v.
Whiteside, 475 U.S. 157 (1986)], ” for
establishing prejudice on an ineffective assistance of
counsel claim.[8] Second, McLain contends that the report
and recommendation “incorrectly finds that [he] did not
suffer prejudice under Strickland when [his] lawyers
denied [him his] fundamental right to testify
….”[9] The following subsections consider those
arguments in turn.
A.
In
Strickland, the Supreme Court held that, to prevail
on an ineffective assistance of counsel claim, a defendant
generally must show actual prejudice, based upon a test that
asks whether, “but for counsel's unprofessional
errors, there is a reasonable probability that the
outcome of the proceeding would have been different.”
Strickland, 466 U.S. at 694 (emphasis supplied). The
Court defined the phrase “a reasonable
probability” as meaning “a probability sufficient
to undermine confidence in the outcome, ” id.,
but noted that it does not require a showing that
counsel's deficient conduct “more likely than not
altered the outcome of the case.” Id. at 693.
See also Holland v. Jackson, 542 U.S. 649, 654-55
(2004) (distinguishing between Strickland's
“reasonable probability” standard for prejudice
and a “preponderance of the evidence” standard).
The Court later recognized in Whiteside that a
defendant cannot establish prejudice under the
Strickland standard based upon counsel's act of
preventing a defendant from giving perjured testimony, even
if the jury might have been swayed by it, because a defendant
has no right to give perjured testimony in the first place.
Whiteside, 475 U.S. at 175-76. McLain contends that
the Alabama Court of Criminal Appeals failed to properly
apply both of these precedents when determining whether he
suffered prejudice as a result of his attorneys'
ineffective assistance.
First,
McLain complains that the Alabama Court of Criminal Appeals
improperly relied on Whiteside because that case is
factually dissimilar.[10] In particular, he asserts that no
evidence in this record reasonably supports: (1) that he
intended to give perjured testimony at trial; (2) that any
fear of perjury, rather than broader strategic
considerations, actually motivated his counsel to prevent him
from testifying; or (3) that, even if his attorneys might
have subjectively believed that he would give perjured
testimony, they never articulated any supporting basis for
that belief, making it objectively
unreasonable.[11]
Even if
McLain is correct about Whiteside being
distinguishable from his case, his argument is misguided. It
is true that the Alabama state courts relied in part on
Whiteside as a basis for denying relief on
McLain's ineffective assistance of counsel claim under
Rule 32. McLain is also correct that the State has argued
that this court might do likewise in denying federal
habeas relief under § 2254. Nevertheless, the
Magistrate Judge did not rely on Whiteside in his
Report and Recommendation. To the contrary, he bypassed the
issue of potential perjury under Whiteside,
reasoning as follows:
[I]f this court were to reject McLain's
Strickland claim on the basis that he suffered no
prejudice even if his proposed trial testimony is
considered, it would be unnecessary to address the state
courts' alternative theory based on Whiteside,
which effectively disregards the substance of a
defendant's would-be trial testimony because of its
ostensibly perjured nature. As such, the undersigned will
assume at this point that McLain is correct that the factual
finding of the Alabama state courts that he intended to give
perjured testimony is unreasonable for purposes of 28 U.S.C.
§ 2254(d)(2) and that he was constitutionally entitled
to testify. In that scenario, all that would matter is
whether McLain suffered actual prejudice under
Strickland considering his proposed trial testimony
in light of all the other evidence from trial.
Doc. no. 14 (Report & Recommendation), 37-38 (alteration
supplied, emphasis in original, footnote omitted). The
Magistrate Judge then explained why McLain's claim must
fail on the Strickland prejudice element even if his
proposed trial testimony, as articulated on the stand in the
Rule 32 proceeding, was considered in full.[12] The court
agrees with the Magistrate Judge that, if McLain's
ineffective assistance of counsel claim - based on a pure
Strickland prejudice analysis that assumes his
proposed testimony was not perjured - is rejected,
then it would be unnecessary to consider whether McLain's
counsel might have been authorized under Whiteside
to prevent him from testifying. Accordingly, this objection
is without merit.
McLain
next purports to state an objection that the Magistrate Judge
“incorrectly [found] that the Alabama Court of
Criminal Appeals applied the correct legal standard [for
assessing prejudice] from Strickland and
Whiteside.”[13] This court notes, however,
that McLain's argument actually challenges the decision
of the Alabama trial court. First, McLain contends
that the state trial court's order denying
post-conviction relief was improper because it constituted a
wholesale adoption of the State's post-hearing
adversarial brief, a practice that McLain says the Alabama
Supreme Court criticized in Ex parte Scott, No.
1091275, 2011 WL 925761 (Ala. March 18, 2011). McLain further
complains that the Magistrate Judge misunderstood his
argument, insofar as the report and recommendation speaks in
terms of the state trial court having adopted a
“proposed order” submitted by the State, rather
than having adopted the State's “answer” or
“brief.”[14] McLain claims that the Alabama Court of
Criminal Appeals erroneously determined that the state trial
court had “used the correct …
Strickland standard for prejudice … based on
the language that the trial court copied and pasted from the
state's brief.”[15] Rather, he asserts that the
“one and only place [in the trial court's order]
the trial court indicated its own standard it used for
determining prejudice was in its conclusion, ” where
the trial court stated that McLain had failed to
“‘establish that the outcome would have been
different.'”[16]Accordingly, McLain insists
“that the trial court actually applied its own,
incorrect standard for Strickland
prejudice.”[17]
McLain's
arguments are unavailing. This court will assume, for the
sake of argument, that the state trial court's order
denying McLain's Rule 32 petition uncritically adopted
the state's post-hearing brief, and that the trial
court's action was improper under the Alabama Supreme
Court's decision in Ex parte Scott, supra. Even
so, the Scott case only held that a state trial
court's adoption of the state's answer in opposition
to a Rule 32 petition violated an implicit requirement in
Ala. R. Crim. P. 32 that a trial court's order denying
relief must actually “reflect the independent and
impartial findings and conclusions of the trial court.”
Ex parte Scott, 2011 WL 925761, at *7 (quoting
Ex parte Ingram, 51 So.3d 1119, 1124 (Ala. 2010)
(emphasis omitted)). Accordingly, even if the state trial
court's adoption here amounted to error (and McLain does
not appear to have raised such a claim in the Alabama Court
of Criminal Appeals), [18] it would only be an error of state
law arising in post-conviction proceedings, which cannot
itself support a viable claim for habeas relief in a
federal court. See Swarthout v. Cooke, 562 U.S. 216,
219 (2011) (“[F]ederal habeas corpus relief
does not lie for errors of state law.”) (alteration
supplied, internal quotation marks and citation omitted);
Carroll v. Secretary, DOC, 574 F.3d 1354, 1365 (11th
Cir. 2009) (“This Court has repeatedly held defects in
state collateral proceedings do not provide a basis for
habeas relief.”) (citing cases).
More to
the point, as the Magistrate Judge recognized, for purposes
of federal habeas review, the order of the state
trial court is not what matters. Where a state court
adjudicates a state prisoner's claim on the merits, as
undisputedly occurred here with respect to McLain's
ineffective assistance of counsel claim, federal courts
cannot grant habeas relief on the claim unless the
state-court adjudication
(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). In assessing the applicability of
such deference, a federal habeas court evaluates the
last reasoned state-court decision. Wilson v.
Sellers, 584 U.S.__, 138 S.Ct. 1188, 1192 (2018);
Meders v. Warden, Ga. Diagnostic Prison, 911 F.3d
1335 (11th Cir. 2019) (pagination not yet available). In
McLain's case, that is the opinion of the Alabama Court
of Criminal Appeals, not the trial court's order. The
Magistrate Judge addressed at length why the decision of the
Alabama Court of Criminal Appeals contained sufficient
indicia that it purported to apply the proper
Strickland prejudice standard, and why its decision
rejecting McLain's ineffective assistance of counsel
claim is ...