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Russaw v. Jones

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

February 13, 2019

FITZGERALD RUSSAW, # 202886, Petitioner,
v.
KARLA JONES, et al., Respondents.

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          STEPHEN M. DOYLE UNITED STATES MAGISTRATE JUDGE

         This case is before the court on a pro se petition for writ of habeas corpus under 28 U.S.C. § 2254 filed by Alabama inmate Fitzgerald Russaw on February 7, 2017. Doc. 1.[1]

         I. BACKGROUND

         In May 2014, a Houston County grand jury indicted Russaw for attempted murder, in violation of §§ 13A-6-2 & 13A-4-2, Ala. Code 1975. Russaw's case came to trial in October 2014. The Alabama Court of Criminal Appeals briefly summarized the evidence adduced at trial:

The evidence at trial revealed that on May 7, 2014, Russaw, along with Isaac Lockhart and several other individuals, attended a gathering at the home of Iris Threat. Russaw, Lockhart, and two other men were playing a card game in the front yard when Russaw and Lockhart got into a verbal altercation. Lockhart testified that he decided to go home and began walking toward his bicycle when he heard two gunshots behind him. According to Lockhart, he turned around to find Russaw pointing a gun at his head. Lockhart stated that he attempted to knock the gun out of Russaw's hand but that Russaw fired the gun before he could be disarmed. Further testimony indicated that the bullet grazed Lockhart's head fracturing his cheek bone.

Doc. 8-10 at 2-3.

         On October 8, 2014, the jury found Russaw guilty of the attempted-murder charge in the indictment. On November 13, 2014, the trial court sentenced Russaw as a habitual felony offender to 99 years' imprisonment.

         Russaw appealed, arguing that (1) he was denied effective assistance of trial counsel; (2) the indictment was void; (3) the State introduced evidence without proving a proper chain of custody and through a flawed photographic lineup; (4) the State failed to disclose exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963); (5) the State submitted false and inconsistent testimony; (6) his Sixth Amendment right to confront witnesses against him was violated because the State did not present medical evidence documenting the victim's injuries; and (7) the trial court erred in admitting a recording from the interrogation room at the police department made while he was awaiting interrogation.[2] Doc. 8-6.

         On September 18, 2015, the Alabama Court of Criminal Appeals affirmed Russaw's conviction and sentence by memorandum opinion.[3] Doc. 8-10. Russaw applied for rehearing, which was overruled. Docs. 8-9 & 8-10. Russaw filed no petition for writ of certiorari with the Alabama Supreme Court.

         On March 19, 2016, Russaw filed a pro se petition in the trial court seeking relief under Rule 32 of the Alabama Rules of Criminal Procedure. Doc. 8-14 at 5-55. Russaw's Rule 32 petition asserted the following claims:

1. Trial counsel was ineffective for failing to (a) adequately investigate the case to discover that there was no evidence of serious physical injury to the victim and then asking the trial court to sentence Russaw based on a serious physical injury; (b) adequately investigate the case to find evidence to attack the victim's credibility; (c) present evidence to impeach the victim; (d) review discovery provided by the State; and (e) sufficiently meet with Russaw to prepare for trial.
2. Trial counsel was ineffective for failing to challenge a material variance between the indictment and the proof at trial and the sufficiency of the State's proof.
3. Trial counsel was ineffective for failing to challenge the legality of Russaw's arrest on grounds there was an insufficient affidavit to support the arrest warrant.
4. Trial counsel was ineffective for failing to move to dismiss the indictment as void.
5. Trial counsel was ineffective for failing to move to exclude the gun allegedly used in the crime.
6. Trial counsel was ineffective for failing to challenge the admission of Russaw's confession.
7. The State's evidence was insufficient to support the conviction, and the trial court erred by admitting evidence of Russaw's mugshot and by not instructing the jury regarding intoxication.
8. The State's photographic array was overly suggestive.
9. A material variance existed between the indictment and the State's evidence.
10. The indictment was flawed because it did not accurately recite the provisions of §§ 13A-4-2 and 13A-6-2.
11. Russaw's conviction arose from the State's acts of malicious prosecution, including its use of coerced confessions, introduction of unlawful evidence in violation of Miranda, and withholding of evidence in violation of Brady.

Doc. 8-14 at 5-55.

         On April 27, 2016, the State filed a response and motion for summary disposition, arguing that Russaw's claims either were raised at trial or on appeal or could have been, but were not, raised at trial or on appeal, and that Russaw had failed to satisfy his burden of proof to obtain Rule 32 relief. Doc. 8-14 at 56-57. On April 29, 2016, the trial court entered an order granting the State's motion for summary disposition and denying Russaw's Rule 32 petition. Doc. 8-14 at 58.

         Russaw appealed, and on September 2, 2016, the Alabama Court of Criminal Appeals issued a memorandum opinion affirming the trial court's judgment. Doc. 8-17. Russaw applied for rehearing, which was overruled. Docs. 8-18 & 8-19. He then filed a petition for writ of certiorari with the Alabama Supreme Court, which that court denied on November 10, 2016. Docs. 8-20 & 8-21.

         On February 7, 2017, Russaw initiated this habeas action by filing a § 2254 petition presenting the following claims:

1. His trial counsel rendered ineffective assistance by failing to adequately investigate his case to discover that there was no evidence of serious physical injury to the victim and then asking the trial court to sentence him based on a serious physical injury.” 2. The State maliciously prosecuted him by charging him for a “false crime . . . where no one was shot.” 3. The trial court lacked subject matter jurisdiction because the State's evidence was insufficient to prove attempted murder.
4. The indictment was void because it charged him with attempted murder after he was originally charged with the lesser offense of attempted assault in the first degree.
5. Evidence regarding a handgun was admitted without a proper chain of custody.
6. The State solicited and introduced perjured testimony at his trial.
7. The testimony of the State's witnesses was inconsistent.
8. His sentence is illegal and his conviction wrongful, because there was no medical ...

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