Hotchkiss v. Billups

          REPORT AND RECOMMENDATION

          WILLIAM E. CASSADY UNITED STATES MAGISTRATE JUDGE

         Petitioner Leon Bud Hotchkiss, an Alabama prisoner who proceeds pro se, has filed a petition that seeks habeas corpus relief under 28 U.S.C. § 2254 (“2254 petition”). (Docs. 5, 7 & 18). The 2254 petition, which has been fully briefed and is ripe for adjudication, has been referred to the undersigned Magistrate Judge for issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(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 amended 2254 petition, the briefs and supporting materials, the undersigned finds an evidentiary hearing is not warranted^[1] and the amended 2254 petition is due to be denied. Accordingly, it is recommended Hotchkiss' 2254 petition be denied in its entirety and judgment be entered in favor of Respondent and against Petitioner, Leon Bud Hotchkiss, and if Hotchkiss seeks the issuance of a certificate of appealability, his request be denied, along with any request to appeal in forma pauperis.

         PROCEDURAL BACKGROUND

         Hotchkiss was indicted by the Baldwin County Grand Jury on February 10, 2012, for one count of trafficking in marijuana in violation of Section 13A-12-231 of the Code of Alabama and one count of unlawful use or possession with intent to use drug paraphernalia in violation of Section 13A-12-260(c) of the Code of Alabama. (Doc. 13-1, at 10-11). On October 26, 2012, Hotchkiss filed a Motion to Suppress with the trial court, in which he argued that he did not knowingly and voluntarily give his consent to a search of his residence and the consent obtained amounted to “mere submission” to authority. (Doc. 13-1, at 40-41). On November 13, 2012, at the hearing on Hotchkiss' Motion to Suppress, the trial court denied his motion. Subsequently, Hotchkiss plead guilty to trafficking in marijuana and use or possession with intent to use drug paraphernalia, and he reserved his right to appeal the issue raised in his Motion to Suppress. (Doc. 13-1, at 48-51, 59, & 77-150; Doc. 13-2, at 3). On January 22, 2013, the trial court sentenced Hotchkiss to concurrent terms of forty (40) years for his trafficking in marijuana conviction and one (1) year for his use or possession with intent to use drug paraphernalia conviction. (Doc. 13-1, at 60-65).

         On June 14, 2013, Hotchkiss filed an appeal of his sentences and convictions with the Alabama Court of Criminal Appeals, (Doc. 13-2, at 1-13), which affirmed the trial court's decision to deny his Motion to Suppress, (Doc. 13-4, at 1-6). On March 24, 2014, Hotchkiss filed his application for rehearing with the Alabama Court of Criminal Appeals, (Doc. 13-5, 1-16), which was overruled on September 2, 2016, (Doc. 13-6). Hotchkiss filed with the Alabama Supreme Court his writ of certiorari on April 16, 2014, (Doc. 13-7, 1-19), which was denied on June 6, 2014, and a certificate of judgment was issued on the same date, (Doc. 13-8).

         On January 23, 2015, Hotchkiss filed a habeas petition with the United States District Court for the Southern District of Alabama, (Doc. 13-9, 1-14), but then filed a motion to withdraw his habeas petition to pursue his unexhausted state remedies, (Doc. 13-11). The Southern District of Alabama dismissed without prejudice Hotchkiss' habeas petition on April 28, 2015. (Doc. 13-12).

         On May 18, 2015, Hotchkiss filed his Petition for Relief from Conviction or Sentence (Pursuant to Rule 32, Alabama Rules of Criminal Procedure) (“Rule 32 petition”), in which he argued his plea agreement was breached, his plea was involuntary, his arrest was illegal, the officers who searched his property violated his right to privacy, the officers who searched his property performed an illegal search and seizure, his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966), were violated, he received ineffective assistance of counsel, and his right to due process was violated. (Doc. 13-13, at 5-32). The State of Alabama filed its response to Hotchkiss' Rule 32 petition on August 12, 2015, in which it argued his claims that his plea agreement was breached, his plea was involuntary, and he received ineffective assistance of counsel were without merit and unsupported by the facts. (Doc. 13-13, at 38-44). The State, further, argued, Hotchkiss' remaining claims were precluded because they were raised at trial or on appeal, or could have been raised at trial and on appeal. (Doc. 13-13, at 38-44). On December 15, 2015, the trial court denied Hotchkiss' Rule 32 petition for those reasons that were argued by the State. (Doc. 13-14, at 24-25). On April 5, 2016, Hotchkiss filed with the Alabama Court of Criminal Appeals his appeal of the trial court's decision to deny his Rule 32 petition. (Doc. 13-15, at 1-41). The Alabama Court of Criminal Appeals affirmed the denial of Hotchkiss' Rule 32 petition on July 1, 2016, in an unpublished memorandum. (Doc. 13-17, at 1-8). The Alabama Court of Criminal Appeals found Hotchkiss' claims that his plea agreement was breached, his plea was involuntary, and he received ineffective assistance of counsel were insufficiently pleaded pursuant to Rules 32.3 and 32.6, Alabama Rules of Criminal Procedure (hereinafter “ARCP” followed by the Rule number); his claim that his arrest was illegal was precluded under ARCP 32.2(a)(2) because it was raised and addressed at trial; his claim that the officers who searched his property violated his right to privacy was precluded under ARCP 32.2(a)(3) because it could have been, but was not raised, at trial; his claim that the officers who searched his property performed an illegal search and seizure was precluded under ARCP 32.2(a)(2) and 32.2(a)(4) because it was raised and addressed at trial and on direct appeal; his claim that his rights pursuant to Miranda were violated was precluded under ARCP 32.2(a)(3) and 32.2(a)(5) because it could have been, but was not raised, at trial and on direct appeal; and his claim that his right to due process was violated was not cognizable in a ARCP 32 petition. (Doc. 13-17, at 1-8).

         On July 11, 2016, Hotchkiss filed with the Alabama Court of Criminal Appeals his Motion for a Rehearing in regard to its decision on his Rule 32 petition appeal. (Doc. 13-18, at 1-5). Additionally, on August 31, 2016, Hotchkiss filed his Motion to Request to File a Brief and an Amendment to a Rule 32. (Doc. 13-19, at 1-3). On September 2, 2016, the Alabama Court of Criminal Appeals overruled Hotchkiss' Motion for a Rehearing, (Doc. 13-20). After no petition for certiorari review was filed with the Alabama Supreme Court within fourteen days of September 2, 2016, the Alabama Court of Criminal Appeals issued its certificate of judgment on September 21, 2016. (Doc. 13-21).

         On February 13, 2017, Hotchkiss filed with the Alabama Court of Criminal Appeals his Appellant's Motion for Suspension of the Rules under Rule 2 Ala. R. App. P. for Good Cause Shown (“motion for suspension of the Rules”), in which he claimed he timely filed, on September 10, 2016, a petition for writ of certiorari when he placed a copy of the petition in the prison legal mail box. (Doc. 13-22, at 1-8). The Alabama Court of Criminal Appeals denied Hotchkiss' motion for suspension of the Rules on February 17, 2017. (Doc. 13-23). On February 22, 2017, Hotchkiss filed with the Alabama Supreme Court his Appellant's Motion for Suspension of the Rules under Rule 2, Ala. R. App. P., for good Cause Shown (“motion for suspension of the Rules under Rule 2”), in which he made the same claims from his motion for suspension of the Rules that was filed with the Alabama Court of Criminal Appeals. (Doc. 13-24, at 1-7). The Alabama Supreme Court entered a show cause order for Hotchkiss to submit evidentiary support and authority by which the Alabama Supreme Court could grant his request. (Doc. 13-25). The Alabama Supreme Court denied Hotchkiss' motion for suspension of the Rules on April 14, 2017, because it was not presented with proof that his petition for writ of certiorari was timely filed. (Doc. 13-26).

         On December 12, 2016, Hotchkiss filed an application for habeas corpus, pursuant to 28 U.S.C. § 2254, with the United States District Court for the Middle District of Alabama, in which he argued his plea was involuntary, the officers who searched his property performed an illegal search and seizure, his arrest was illegal, and he received ineffective assistance of counsel.^[2] (Doc. 5, at 1 & 3-14). The Middle District of Alabama transferred the application to the Southern District of Alabama on January 11, 2017, pursuant to 28 U.S.C. § 2241(d) since he challenged a conviction and sentence that were imposed by the Baldwin County Circuit Court. (Doc. 5, at 1-2 & 15-18).

         On January 25, 2017, Hotchkiss was ordered to refile his application for habeas corpus, pursuant to 28 U.S.C. § 2254, on this Court's form. (Doc. 6, at 1). Hotchkiss was informed that his new petition would supersede the original petition. (Doc. 6, at 1). Hotchkiss filed his instant 2254 petition on February 28, 2017, (Doc. 7-2, at 25), see Adams v. United States, 173 F.3d 1339, 1341 (11th Cir. 1999) (“A pro se prisoner's notice of appeal is considered to be filed on the date that the prisoner delivers the notice to the prison authorities for mailing.”), in which he argues (1) the officers who searched his property violated his right to privacy, (2) his rights pursuant to Miranda were violated, (3) his arrest was illegal, (4) his conviction was obtained by use of evidence gained pursuant to an illegal search and seizure, (5) his right to due process was violated, (6) his plea was involuntary, (7) his plea agreement was breached, (8) he received ineffective assistance of trial counsel, and (9) he received ineffective assistance of appellate counsel. (Doc. 7, at 1-23;; Doc. 7-1, at 1-57).

         In support of his ineffective assistance of counsel claims raised in the amended petition (Claims 8 & 9 above), Hotchkiss alleges that his first lawyer, Mr. Michael Pylant, failed to make a meaningful attempt to inform him of a written plea offer before it expired, failed to notify the court of his willingness to accept a plea offer to a 15-year sentence within the offer window and abandoned him during plea negotiations. (Doc. 7-1, at 47). James May was then retained by Hotchkiss to take over from Pylant but also failed to provide effective assistance. His failings are described as allowing a plea agreement to a 15-year sentence “get away” knowing that Hotchkiss was willing to enter into such an agreement, filing a motion to suppress without consulting his client, failing to notify the District Attorney or the Court that he would accept a plea agreement to a 15-year sentence before the plea offer was withdrawn, expired or was rejected by the court, and failing to enforce the agreement to which Hotchkiss was willing to accept during the guilty plea proceedings. (Id., at 47-49).

         Mr. James Piggot was appointed to represent Hotchkiss on appeal. Petitioner alleges that Piggot was ineffective on appeal because he failed to contact the Petitioner until after his appeal was resolved unfavorably and that he failed to raise on direct appeal claims of ineffective assistance of trial counsel. (Id., at 55-56).

         DISCUSSION

         A. Untimely Claims

         The Court must, first, determine whether all the claims in Hotchkiss' latest 2254 petition (Doc. 7), that he was ordered to file, were timely filed and not barred by the one-year statute of limitations. In this particular case, the undersigned required Hotchkiss to refile his petition on a form complaint utilized in this District and gave him that opportunity during a period of time that exceeded one year from the time his conviction became final. (See Doc. 6, “Petitioner, therefore, is ORDERED by March 1, 2017, to complete and file this Court's form for a petition under 28 U.S.C. § 2254, see S.D. Ala. CivLR 9(b); Rule 2(c) of the Federal Rules Governing Section 2254 Cases, and for a motion to proceed without prepayment of fees, see S.D. Ala. CivLR 9(b).”). As ordered, Hotchkiss filed a second petition on this Court's form on February 28, 2017, a date that was timely pursuant to the Court's order. However, because this filing date is outside the one-year period allowed for filing the habeas petition and because Hotchkiss added new claims to his amended petition, it is necessary to determine which claims in the amended petition have been timely filed.

         Hotchkiss' direct appeal of his conviction and sentence by the Baldwin County Circuit Court became final when the Alabama Supreme Court issued on June 6, 2014, its certificate of judgment. (Doc. 13-8). From that date, Hotchkiss had 90 days to file a petition for writ of certiorari with the United States Supreme Court, see Sup. Ct. R. 13 (“Unless otherwise provided by law, a petition for a writ of certiorari to review a judgment in any case, civil or criminal, entered by a state court of last resort . . . is timely when it is filed with the Clerk of this Court within 90 days after entry of judgment.”). He did not file a petition for certiorari in the Supreme Court of the United States, so he had one year from the expiration of the ninety-day (90) period to file with the Supreme Court his writ of certiorari, see Jackson v. Sec'y for Dep't of Corr., 292 F.3d 1347, 1348 (11th Cir. 2002) (“[A] federal prisoner's direct appeal does not become final until the expiration of the extra 90 days in which he could have filed for a writ of certiorari to the Supreme Court of the United States.”) to file in this Court a petition for habeas relief, which would have been September 4, 2015.

         Prior to September 4, 2015 Hotchkiss tolled the running of the one-year limitations period imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) when he filed in the trial court his Rule 32 petition, see 28 U.S.C. § 2244(d)(2) (“The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.”), on May 18, 2015, which was 256 days after September 4, 2014, (Doc. 13-13, at 5-32), and that period did not continue to run until September 21, 2016, when the Alabama Court of Criminal Appeals issued its certificate of judgment affirming the trial court's denial of Hotchkiss' Rule 32 petition, (Doc. 13-21), leaving him with 109 days to file his federal petition by January 8, 2017. Thus, the first filing of the petition in the Middle District of Alabama on December 12, 2016 was within that one-year period but the amended petition, filed February 28, 2017 in the Southern District of Alabama was not.

         It does not appear to be disputed that the same claims raised in both petitions will be timely since they were originally filed on December 12, 2016 in the United States District Court for the Middle District of Alabama. If any of the additional claims raised by Hotchkiss in the amended 2254 petition do not relate back to the original petition, however, Respondent argues that they have been filed outside AEDPA's one-year limitation period, see 28 U.S.C. § 2244(d)(1).

         Under these circumstances, the Court determines Hotchkiss' instant 2254 petition is an amended petition, since he was ordered to refile his habeas petition on this Court's form in order to have him, a pro se litigant, answer all of the questions that this Court has determined to be important pursuant to the Local Rules. Even so, any new claims raised in the amended petition that do not relate back under Rule 15(c), Federal Rules of Civil Procedure (“FRCP”) are barred as untimely filed.

         FRCP 15(c) provides “[a]n amendment of a pleading relates back to the date of the original pleading when . . . the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.” As recognized by the Supreme Court, the keys words to be interpreted in this Rule are “conduct, transaction, or occurrence.” Mayle v. Felix, 125 S.Ct. 2562, 2570, 545 U.S. 644, 656 (U.S., 2005). After considering these terms and the nature of habeas proceedings, the Supreme Court concluded that “[s]o long as the original and amended petitions state claims that are tied to a common core of operative facts, relation back will be in order.” Id. at 125 S.Ct. 2574, 545 U.S. 664 (footnote omitted). Accordingly, in order for any new claims presented by Hotchkiss' in his amended 2254 petition to relate back, and be considered timely, they must be tied to a common core of operative facts. See also Davenport v. U.S., 217 F.3d 1341, 1344 (11^th Cir. 2000) (“[I]n order to relate back, the untimely claim must have arisen from the same set of facts as the timely filed claim, not from separate conduct or a separate occurrence in both time and type.”) (Internal quotation marks and citations omitted.).

         In Hotchkiss' original habeas petition, he presented four distinct claims: (a) his plea was involuntary, (b) the officers who searched his property performed an illegal search and seizure, (c) his arrest was illegal, and (d) he received ineffective assistance of trial and appellate counsel. (Doc. 5, at 1 & 3-14).^[3] In Hotchkiss' amended petition, Hotchkiss identifies nine claims: (1) the officers who searched his property violated his right to privacy, (2) his rights pursuant to Miranda were violated, (3) his arrest was illegal, (4) evidence used to convict him was obtained through an illegal search and seizure, (5) his right to due process was violated, (6) his plea was involuntary, (7) his plea agreement ...