McLain v. Dunn

          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 ...