United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
WILLIAM E. CASSADY, UNITED STATES MAGISTRATE JUDGE.
Petitioner
Tommy Sturdivant, an Alabama prisoner who proceeds pro
se, has filed a petition that seeks habeas corpus relief
under 28 U.S.C. § 2254 (“2254 Petition”).
(Doc. 7). The 2254 Petition, which has been fully briefed and
is ripe for adjudication, was referred to the undersigned
Magistrate Judge for issuance of a report and recommendation,
pursuant to 28 U.S.C. § 636(b)(1)(B); Rule 72, Federal
Rules of Civil Procedure (hereinafter, “FRCP”
followed by the Rule number); and S.D. Ala. Gen. L.R.
72(a)(2)(R). Based upon a thorough review of the 2254
Petition, (Doc. 7), the briefs and supporting materials,
(Docs. 13, 16, 18 & 21), the undersigned finds an
evidentiary hearing is not warranted[1] and the 2254 Petition is due
to be denied. Accordingly, it is recommended Sturdivant'
2254 Petition be denied in its entirety and judgment be
entered in favor of Respondent and against Petitioner, Tommy
Sturdivant, and if Sturdivant seeks the issuance of a
certificate of appealability, his request be denied, along
with any request to appeal in forma pauperis.
I.
Procedural Background
Sturdivant
was indicted by the Grand Jury of Choctaw County on February
27, 2007 and charged with six (6) counts that included three
(3) counts of rape, first degree, of a child, who was less
than twelve (12) years of age, and three (3) counts of sexual
abuse of a child, who was less than twelve (12) years of age.
(Doc. 13-2, at 1-3). On May 16, 2011, before the Honorable
Gaines C. McCorquodale and while represented by James E.
Deshler, III, Esquire, Sturdivant pleaded guilty to Counts
Four and Five of his indictment, both of which were counts of
sexual abuse of a child, who was less than twelve (12) years
of age and were Class B felonies. (Doc. 13-1, at 28-29; Doc.
13-3, at 1 & 14). Sturdivant was sentenced to two,
concurrent, fifteen-year sentences in prison, and the
remaining counts of his indictment were dismissed. (Doc.
13-1, at 30-32; Doc. 13-3, at 17-20).
Sturdivant
made no attempt to appeal his convictions until April 20,
2012, when he filed with the Alabama Court of Criminal
Appeals his Motion for an Appeal, (Doc. 13-4, at 1-7), after
which the Court of Criminal Appeals entered a show cause
order for Sturdivant to respond why his appeal should not be
dismissed as untimely, (Doc. 13-4, at 10). On May 22, 2012,
the Court of Criminal Appeals denied Sturdivant's appeal
as untimely, (Doc. 13-4, at 11), and a certificate of
judgment was entered, (Doc. 13-4, at 12).
On May
29, 2012, Sturdivant filed his pro se Petition for
Relief from Conviction or Sentence (Pursuant to Rule 32,
Alabama Rules of Criminal Procedure) (“Rule 32
Petition”). (Doc. 13-5, at 7-24). On the form Rule 32
Petition, Sturdivant marked the grounds for his petition as
follows: the Constitution of the United States or of the
State of Alabama requires a new trial, a new sentence
proceeding, or other relief because his conviction was
obtained by a guilty plea that was unlawfully induced or not
made voluntarily in that (1) his conviction was obtained by
the use of evidence that was obtained pursuant to an unlawful
arrest, (2) his conviction was obtained by the
unconstitutional failure of the prosecution to disclose
favorable evidence to him, and (3) his conviction was
obtained by a violation of the protection against double
jeopardy. Sturdivant also claims that he was denied effective
assistance of counsel; the court was without jurisdiction to
render the judgment or to impose the sentence; newly
discovered material facts exist that require his conviction
or sentence to be vacated by the court; and he failed to
appeal within the prescribed time and that failure was not
his fault. (Doc. 13-5, at 10-12).
Attached
to Sturdivant's Rule 32 Petition, he included
explanations for certain grounds for his relief. (Doc. 13-5,
at 16-18). As to Sturdivant's ground for relief that he
was denied effective assistance of counsel, he claimed his
trial counsel failed to object when Sturdivant was brought
into the courtroom for his trial in prison attire, his trial
counsel failed to object when a mental competency evaluation
was not performed on Sturdivant, his trial counsel failed to
disclose that he discussed Sturdivant's case with the
nephew of the district attorney, his trial counsel failed to
disclose the victim was his neighbor, and his trial counsel
failed to disclose to the trial court Sturdivant was
“taken off of his medicine of mental medication”
and was “not in his right state of mind.” (Doc.
13-5, at 16-17). As to Sturdivant's ground for relief
that his conviction was obtained by a violation of the
protection against double jeopardy, he claimed he
“could not have been convicted of two counts [that
were] contain[ed] in the same statute” and
“sexual abuse in the first degree was a lesser included
offense of rape in the first degree.” (Doc. 13-5, at
17). As to Sturdivant's ground for relief that his
conviction was obtained by the unconstitutional failure of
the prosecution to disclose favorable evidence to him, he
claimed a DNA, or rape, kit was not submitted as evidence at
his trial. (Doc. 13-5, at 17). As to Sturdivant's ground
for relief that his conviction was obtained by the use of
evidence that was obtained pursuant to an unlawful arrest, he
claimed he was arrested without a warrant. (Doc. 13-5, at
18).
On
August 9, 2012, Sturdivant filed his Amendment to Rule 32
Post-Conviction Petition, in which he included an additional
ground for relief, pursuant to Rule 32, Alabama Rules of
Criminal Procedure, (hereinafter, ARCrP followed by the Rule
number) based on his claim that his sentence exceeded the
maximum authorized by law because his prior conviction was
not properly proved to enhance his sentence. (Doc. 13-5, at
25-26; see also Doc. 13-5, at 27-28). On August 7,
2013, the State of Alabama filed its Response to Rule 32
Petition. (Doc. 13-5, at 29-55).
Sturdivant
filed a second motion to amend his Rule 32 petition, his
Motion to Amend Pursuant to A.R.Cr.P., Rule 32.7(b), on June
17, 2014. Therein he included additional grounds for relief,
pursuant to ARCrP 32, based on his claims that the indictment
did not include the number of grand jurors that returned it
or concurred with it; the name given on the indictment was
incorrect; the sentence was against Tommy Sturdivant, and not
Thomas Eugene Sturdivant, the Petitioner, as indicated in his
recaptioned 2254 Petition, (compare Doc. 1 at 1
with Doc. 7, at 1); he was denied his right to a
speedy trial; he was denied effective assistance of counsel;
his attorney and/or the prosecutor was prejudiced against
him; Circuit Court Judge Stuart C. Dubose did not have a
right to order Sturdivant to “hand over his legal work,
court papers, document[s], and letters from [the] allege[d]
victim et al. to ex-Sheriff James Lovett;” his trial
attorney, despite an affidavit to the contrary, did not show
Sturdivant copies of medical examinations of the alleged
victim; the trial court was without jurisdiction to sentence
him; and he was brought into the courtroom for his trial in
prison attire. (Doc. 13-5, at 63-79).
Sturdivant
filed a third motion to amend his Rule 32 Petition, his
Motion to Amend Pursuant to A.R.Cr.P., Rule 32.7(b), on July
9, 2014, in which he included an additional ground for
relief, pursuant to ARCrP 32, based on his claim that his
indictment was fatally defective because Tommy Sturdivant was
the named Defendant and not Thomas Eugene Sturdivant, the
Petitioner, as indicated in his recaptioned 2254 Petition,
(compare Doc. 1 at 1 with Doc. 7, at 1).
(Doc. 13-5, at 56-62).
Sturdivant
filed a fourth motion to amend his Rule 32 Petition, his
Motion to Amend Pursuant to A.R.Cr.P., Rule 32.7(b), on
August 27, 2014, in which he included additional grounds for
relief, pursuant to ARCrP 32, based on his claims that the
prosecution failed to prove his prior felony convictions and
ineffective assistance of counsel. (Doc. 13-5, at 80-88).
On
December 31, 2014, the trial court denied Sturdivant's
Rule 32 Petition. (Doc. 13-5, at 89-93). No. appeal of this
decision was timely filed but Sturdivant did file a
“Motion to Reconsider and Grant Relief on the
Merits”, on January 8, 2015. (Doc. 13-6, at 1-4).
On
January 12, 2015, Sturdivant filed his Motion for Default
Judgement, in which he motioned the trial court to rule on
his “Rule 32 post conviction and Rule 32.7(b) Default
Judgement on a evidentiary hearing.” (Doc. 13-6, at
1-4). Sturdivant claimed the trial court ruled on his Rule 32
Petition and motions to amend his Rule 32 Petition, on
October 3, 2013, but did not notify him until December 31,
2014, which he claims was an attempt by the trial court to
deny him the opportunity to appeal his Rule 32 Petition.
(Doc. 13-6, at 2).
On May
28, 2015, Sturdivant filed a Motion to Compel with the Court
of Criminal Appeals, in which he motioned the court to compel
the trial court to process his appeal, docketing statement,
and transcript order. (Doc. 13-7, at 1-5). Sturdivant claimed
the trial court conducted an evidentiary hearing for his Rule
32 Petition, on October 1, 2014; denied it, on October 31,
2014; and he did not receive notice of the denial until
December 31, 2014. (Doc. 13-7, at 1). Sturdivant claimed he
filed with the trial court, on or about February 2014, his
notice of appeal, docketing statement, and transcript order,
and the trial court clerk refused to respond and/or process
those filings. (Doc. 13-7 at 2). The Court of Criminal
Appeals elected to treat Sturdivant's Motion to Compel as
a petition for writ of mandamus, (Doc. 13-7, at 6), and,
transferred the petition to the Presiding Judge of the
Choctaw County Circuit Court because Sturdivant's
petition was a request for the Clerk of the Choctaw County
Circuit Court to process Sturdivant's filings and the
Presiding Judge of the Choctaw County Circuit Court has
direct supervisory authority over “‘clerks . . .
and other court employees of the circuit and district courts
within the circuit, '” (Doc. 13-7, at 7 (quoting
Ala. Code § 12-17-24)).
On
October 1, 2015, Sturdivant filed his Motion to Impose
Penalties for Non-Compliance with Rules with the Court of
Criminal Appeals, in which he motioned the court to hold the
Clerk and Presiding Judge of the Choctaw County Circuit Court
in contempt because they refused to respond or process his
notice of appeal, docketing statement, and transcript order.
(Doc. 13-8, at 1-4). The Court of Criminal Appeals elected to
treat Sturdivant's Motion to Impose Penalties for
Non-Compliance with Rules as a petition for writ of mandamus.
(13-9, at 1). On November 6, 2015, Sturdivant filed his
Petition for Writ of Prohibition with the Court of Criminal
Appeals, in which he requested oral argument on his Rule 32
Petition if the transcript from his Rule 32 Petition hearing
was not produced. (Doc. 13-10, at 1-4). Sturdivant filed the
same Petition for Writ of Prohibition with the trial court,
(Doc. 13-10, at 5-7), the clerk of the trial court, (Doc.
13-10, at 8-11), and the district attorney for the trial
court circuit, (Doc. 13-10, at 11-13). The Court of Criminal
Appeals ordered the State of Alabama to respond to the
petition for writ of mandamus. (Doc. 13-11, at 1). The State
filed its Answer to Petition for Writ of Mandamus, on
December 4, 2015, (Doc. 13-12, at 1-45), and Sturdivant filed
his reply, on December 23, 2015, (Doc. 13-13, at 1-6). The
Court of Criminal Appeals denied Sturdivant's petition
for writ of mandamus, on March 10, 2016, and reasoned the
Clerk of the Choctaw County Circuit Court did not receive a
notice of appeal, docketing statement, and reporter's
transcript order because Sturdivant did not attach a copy of
those filings to prove he filed them. (Doc. 13-14, at 1-2).
On
March 29, 2016, Sturdivant filed his second Rule 32 Petition
in the Choctaw County Circuit Court. (Doc. 13-15, at 1-17).
On the form Rule 32 Petition, Sturdivant marked the grounds
for his petition as follows: the Constitution of the United
States or of the State of Alabama requires a new trial, a new
sentence proceeding, or other relief; the court was without
jurisdiction to render the judgment or to impose the
sentence; newly discovered material facts exist that require
his conviction or sentence to be vacated by the court; and
Sturdivant failed to appeal within the prescribed time and
that failure was not his fault. (Doc. 13-15, at 7-9).
Attached to Sturdivant's second Rule 32 Petition, he
included explanations for certain grounds for his relief.
(Doc. 13-15, at 15). As to Sturdivant's ground for relief
that the Constitution of the United States or of the State of
Alabama requires a new trial, a new sentence proceeding, or
other relief, he claimed the trial court did not have
jurisdiction to render the judgment or impose the sentence in
his case because the indictment did not include the number of
grand jurors that returned it or concurred with it. (Doc.
13-15, at 15).
On June
27, 2016, Sturdivant filed his third Rule 32 Petition in the
Choctaw County Circuit Court. (Doc. 13-16, at 6-25). On the
form Rule 32 Petition, Sturdivant marked the grounds for his
petition as follows: the Constitution of the United States or
of the State of Alabama requires a new trial, a new sentence
proceeding, or other relief because (1) his conviction that
was obtained by a guilty plea was unlawfully induced or not
made voluntarily, (2) his conviction was obtained by the use
of evidence that was obtained pursuant to an unlawful arrest,
and (3) s conviction was obtained by the unconstitutional
failure of the prosecution to disclose favorable evidence to
him. He also claims that he was denied effective assistance
of counsel; the court was without jurisdiction to render the
judgment or to impose the sentence; and newly discovered
material facts exist that require his conviction or sentence
to be vacated by the court. (Doc. 13-16, at 12-14).
Attached
to Sturdivant's third Rule 32 Petition, he included
explanations for certain grounds for his relief. (Doc. 13-16,
at 20-22). As to Sturdivant's ground for relief that the
Constitution of the United States or of the State of Alabama
requires a new trial, a new sentence proceeding, or other
relief, he claimed the trial court did not have jurisdiction
to render the judgment or impose the sentence in his case
because the indictment did not include the number of grand
jurors that returned it or concurred with it. (Doc. 13-15, at
20-22). On November 10, 2016, the State of Alabama filed its
Response to Rule 32 ...