United States District Court, N.D. Alabama, Middle Division
Scott Coogler United States District Judge.
David Jacobs Barrow filed this action for a writ of habeas
corpus, through counsel, on or about March 23, 2018. (Doc.
1). Therein, Barrow challenges his guilty plea to two counts
of production of obscene matter containing a visual
representation of a person under seventeen years old, and the
resulting 30 year sentence. (Id. at 1). On January
2, 2019, the magistrate judge to whom the case was referred
filed a report recommending the petition be dismissed with
prejudice. (Doc. 11). Barrow was notified of his right to
file objections to the report and recommendation, and on
January 25, 2019, the court received Barrow's objections.
objections essentially reiterate his habeas petition claims.
He claims his guilty plea was not voluntary and knowing
because counsel told him he would be eligible for parole or
work release and counsel told him the backlash to his family
from a trial would be “unbearable.” Barrow
further asserts counsel was ineffective for failing to file a
motion to withdraw his guilty plea. Finally, Barrow claims
his counsel on collateral review was ineffective for failing
to raise these claims.
demonstrate constitutionally ineffective assistance of
counsel, a petitioner “must show that counsel's
representation ‘fell below an objective standard of
reasonableness' and that he was prejudiced as a
result.” Lee v. United States, __U.S.__, 137
S.Ct. 1958, 1964 (2017) (quoting Strickland v.
Washington, 466 U.S. 668, 688, 692 (1984)). To
demonstrate counsel's ineffectiveness for either
counseling him to accept the plea bargain offered or failing
to file a motion to withdraw the guilty plea, the petitioner
must show “that a decision to reject the plea bargain
would have been rational under the circumstances.”
Padilla v. Kentucky, 559 U.S. 356, 372 (2010)
(citing Roe v. Flores-Ortega, 528 U.S. 470, 480, 486
(2000)); see also Diveroli v. United States, 803
F.3d 1258, 1263 (11th Cir. 2015).
standard for determining the validity of a guilty plea asks
“whether the plea represents a voluntary intelligent
choice among the alternative courses open to the
defendant.” North Carolina v. Alford, 400 U.S.
25, 31 (1970). Here, in exchange for his pleas of guilty to
two counts, 25 additional counts were dismissed. The
state's factual proffer during the plea colloquy
demonstrated an overwhelming amount of evidence against the
petitioner. Glaringly absent from Barrow's argument that
his counsel coerced him into pleading guilty is any semblance
of a claim that “but for counsel's errors, he would
not have pleaded guilty and would have insisted on going to
trial” on all 27 counts of production of obscene matter
containing a visual representation of a person under
seventeen years old, in violation of § 13A-12-197,
Code of Alabama 1975, as amended. See Hill v.
Lockhart, 474 U.S. 52, 59 (1985); Diveroli, 803
F.3d at 1264 (holding the correct legal standard to
demonstrate the prejudice prong of ineffective assistance of
counsel claim requires a court to determine whether
petitioner “would not have pleaded guilty and would
have insisted on going to trial”).
assertions that counsel told him his family would suffer
backlash if he proceeded to trial was, as the Alabama Court
of Criminal Appeals stated, no more than “the realities
of his case if he went to trial.” (Doc. 4-6 at 11).
Barrow's failure to demonstrate, or even assert, that but
for counsel's coercion, he would have insisted on going
to trial on all 27 counts, is fatal to his claim that his
plea was not knowing and voluntary. See e.g., Orange v.
United States, 2017 WL 5714719, *3 (11th Cir. 2017)
(finding that the record undermines claim that plea was
unknowing and involuntary because petitioner did not
understand how long his sentence might be); Sierra v.
Florida Dep't of Corr., 657 Fed.Appx. 849, 852 (11th
Cir. 2016) (“[w]ith a video recording of the crime and
no valid defenses, it would not have been rational for Sierra
to have rejected the plea agreement and proceeded to
claim that trial counsel misinformed him about his
eligibility for parole or work release fares no better. Even
though the magistrate judge noted the claim is procedurally
barred, he further considered whether counsels' failure
to inform Barrow he would not be eligible for parole or work
release, considered on its merits, provided a basis for
habeas relief. (Doc. 11 at 27). During his plea, the court
asked if the 30 year sentence was in fact a
“day-for-day sentence” to which the prosecutor
replied “Yes …. It's a day-for-day sentence
and 10 years post-release supervision if he were to get out
of prison in 30 years, with SORNA compliance.” (Doc.
4-2 at 35).
on the same date, Barrow also pleaded guilty to two counts of
Human Trafficking in Madison County, with the 30 year
sentence in the Marshall County cases to run concurrently
with the 30 year sentence in the Madison County cases.
See State v. David Jacobs Barrow,
47-CC-2015-000912.00 (Madison Co., Ala), at document 34. The
“Explanation of Rights and Pleas of Guilty” form
in the Madison County case, signed by Barrow and his counsel,
clearly reflects that “pursuant to § 15-22-27.3,
defendant not eligible for parole.” Hence, Barrow can
show no prejudice from the alleged error of counsel because
he knew in his concurrent 30 year sentence he would not be
parole eligible. His claim otherwise now is a
“contention that in the face of the record [is]
wholly incredible.” Blackledge v. Allison, 431
U.S. 63, 73-74 (1977).
Barrow again asserts that his collateral counsel was
ineffective for not raising this claim in his Rule 32
petition. (Doc. 14 at 10-11). However, because this claim is
addressed on its merits, and the court finds Barrow is not
due any relief on the underlying claim, his collateral
counsel could not be ineffective for failing to raise the
carefully reviewed and considered de novo all the
materials in the court file, including the report and
recommendation and the response thereto, the magistrate
judge's report is hereby ADOPTED and his
recommendation is ACCEPTED. Barrow's
objections are OVERRULED. Accordingly, the
petition for writ of habeas corpus is due to be
DENIED and DISMISSED WITH
PREJUDICE. Further, because the petition does not
present issues that are debatable among jurists of reason, a
certificate of appealability is also due to be
DENIED. See 28 U.S.C. §
2253(c); Slack v. McDaniel, 529 U.S. 473, 484-85
(2000); Rule 11(a), Rules Governing § 2254
Proceedings. A separate Final Order will be entered.
 Ala. Code § 15-22-27.3 states,
“Any person convicted of a sex offense involving a
child … which constitutes a Class A or B felony shall