United States District Court, S.D. Alabama, Southern Division
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 (11th 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 ...