Sturdivant v. Jones

          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 ...