United States District Court, M.D. Alabama, Southern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
STEPHEN M. DOYLE UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
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. Doc. 8-6.
September 18, 2015, the Alabama Court of Criminal Appeals
affirmed Russaw's conviction and sentence by memorandum
opinion. 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
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
8. The State's photographic array was overly suggestive.
9. A material variance existed between the indictment and the
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
Doc. 8-14 at 5-55.
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.
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.
February 7, 2017, Russaw initiated this habeas action by
filing a § 2254 petition presenting the following
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
7. The testimony of the State's witnesses was
8. His sentence is illegal and his conviction wrongful,
because there was no medical ...