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Slade v. Estes

United States District Court, N.D. Alabama, Northeastern Division

September 18, 2019

WILLIAM BARRETT SLADE, II, Petitioner,
v.
WARDEN ESTES, et al., Respondents.

          MEMORANDUM OPINION

          KARON OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE

         On July 16, 2019, the magistrate judge entered a report and a recommendation that the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by Petitioner William Barrett Slade (“Slade”) be dismissed as procedurally defaulted. (Doc. 16). Petitioner filed objections, (doc. 19), a motion for leave to submit supplementary material to his objections, (doc. 20), and a further supplement, (doc. 21). The court has considered the entire file in this action, together with the report and recommendation and the Petitioner’s post-report filings, and has reached an independent conclusion that the report and recommendation is due to be rejected in part and adopted and approved in part. Ultimately, the court agrees that the petition is due to be dismissed.

         A. Ineffective Assistance of Counsel Claim

         Slade’s first objection contends that the magistrate judge made a factual error in finding that Slade filed a pro se petition for a writ of certiorari in the Alabama Supreme Court regarding his Rule 32 petition. (Doc. 19 at 1-2) (citing doc. 16 at 4). The magistrate judge cited a document submitted “IN THE STATE OF ALABAMA SUPREME COURT” entitled “Petition for a Writ of Certiorari” on behalf of “Pro Se, WILLIAM BARRETT SLADE, II.” (Doc. 16 at 4) (citing doc. 9-20). Respondents also contended this document was Slade’s petition before the Alabama Supreme Court. (See doc. 9 at 5). The magistrate judge relied on this pro se petition as the basis for concluding Slade’s claim that his trial counsel rendered unconstitutionally ineffective assistance was unexhausted and procedurally defaulted, because the pro se petition failed to raise this claim. (Doc. 16 at 6-7) (citing doc. 9-20).

         However, according to Slade, his pro se petition was rejected by the Alabama Supreme Court on October 5, 2018, in favor of a petition filed by his counsel. (Doc. 19 at 4). In support of this contention, Slade points to a letter from the Alabama Supreme Court (included along with his traverse) indicating that “we cannot accept an appellate filing from someone who is represented by an attorney on appeal” and stating that Slade’s “defense attorney . . . filed a timely certiorari petition today on your behalf” which “will be submitted to the Court for decision.” (Doc. 13 at 29). Slade has also attached his counsel’s petition. (, which in fact includes an argument related to his trial counsel’s ineffective performance. (Id. at 30-38). This petition appears to be the one to which the Alabama Supreme Court’s no-opinion denial pertains. (Doc. 9-15 at 2). Accordingly, the magistrate judge’s report and recommendation is mistaken (along with the State) in concluding that Slade did not fully exhaust his ineffective assistance of counsel claim and that it is procedurally defaulted for that reason. Slade’s objection is SUSTAINED, and the report and recommendation is REJECTED as to that conclusion.

         But, the fact that Slade’s claim turns out to have been exhausted does not mean Slade has presented the court with a viable ineffective assistance of counsel claim. The magistrate judge alternatively found Slade’s ineffective assistance of counsel claim meritless. (Doc. 16 at 7 n.4). Slade’s contention, contained in his amended petition, asserts that his trial counsel rendered ineffective assistance “during the hearing on the new trial motion, respecting my newly discovered affidavit of the reliable testimony of the affiant of declaration of guilt by the state key witness, and co-defendant Jessie Greene.”[1] (Doc. 6 at 9). Specifically, Slade argues his trial counsel offered the witness’s affidavit as impeachment evidence only, rather than as substantive evidence that the key witness was guilty of the murder for which Slade was convicted. (Id.).

         The magistrate judge described the background behind this claim:

During the hearing on Slade’s motion for a new trial, witness Ashely Katina Bone testified to the alleged newly discovered evidence. (See doc. 9-9 at 197). Bone testified that she overheard Slade’s co-defendant (who was also the State’s primary witness at trial), Jessie Green, [2] say “[t]hat nigger is doing my time” and “those dumb-ass police . . . should have known that those were my things.” (Doc. 9-9 at 200 – doc. 9-10 at 1, 3). Bone further testified that on a separate occasion she overheard Green say, “they had to get rid of [the gun].” (Doc. 9-10 at 4-5). On cross-examination, Bone testified when she overheard these statements, she did not know the context in which the statements were made. (Id. at 8-11).

(Doc. 16 at 1-2). Slade raised this claim in his Rule 32 petition, but the Rule 32 trial court dismissed this claim in part because “[t]he Petition is lacking in specificity under Ala. R. Crim. P. 32.6.”[3] (Doc. 9-16 at 49). The Alabama Court of Criminal Appeals (“ACCA”) upheld this finding:

In Claim 2, Slade pleaded two instances of ineffective assistance of counsel. Neither satisfied the requirements of Rule 32.3 and Rule 32.6(b).
To prevail on a claim of ineffective assistance of counsel, the petitioner must ultimately prove that (1) counsel’s performance was deficient and (2) that the deficient performance actually prejudiced the defense. Strickland v Washington, 466 U.S. 668 (1984). Slade failed to plead the full factual basis for his claims of ineffective assistance of counsel. This Court in Hyde v. State, 950 So.2d 344, (Ala.Crim.App.2006), explained:
“The burden of pleading under Rule 32.3 and Rule 32.6(b) is a heavy one. Conclusions unsupported by specific facts will not satisfy the requirements of Rule 32.3 and Rule 32.6(b). The full factual basis for the claim must be included in the petition itself. If, assuming every factual allegation in a Rule 32 petition to be true, a court cannot determine whether the petitioner is entitled to relief, the petitioner has not satisfied the burden of pleading under Rule 32.3 and Rule 32.6(b). See Bracknell v. State, 883 So.2d 724 (Ala.Crim.App.2003). To sufficiently plead an allegation of ineffective assistance of counsel, a Rule 32 petitioner not only must ‘identify the [specific] acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment, ’ Strickland v. Washington, 466 U.S. 668 (1984), but also must plead specific facts indicating that he or she was prejudiced by the acts or omissions, i.e., facts indicating ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ 466 U.S. at 694. A bare allegation that prejudice occurred without specific facts indicating how the petitioner was prejudiced is not sufficient.”

950 So.2d at 356.

         To meet the specificity requirement contained in Rule 32.6(b), Ala. R. Crim. P., the petitioner must allege sufficient facts from which the circuit court, assuming those facts are true, can determine that the petitioner is entitled to relief. If the petitioner fails to allege any fact necessary to establish his entitlement to relief, then he has failed to meet his burden of full-fact pleading. Rule 32.7(d), Ala. R. Crim. P., provides for summary dismissal of a Rule 32 petition if, among other reasons, the petition “is not sufficiently specific, ” pursuant to Rule 32.6(b), Ala. R. Crim. P.

“‘Rule 32.6(b) requires that the petition itself disclose the facts relied upon in seeking relief.’ Boyd v. State, 746 So.2d 364, 406 (Ala.Crim.App.1999). In other words, it is not the pleading of a conclusion ‘which, if true, entitle[s] the petitioner to relief.’ Lancaster v. State, 638 So.2d 1370, 1373 (Ala.Crim.App.1993). It is the allegation of facts in pleading which, if true, entitle a petitioner to relief. After facts are pleaded, which, if true, entitle the petitioner to relief, the petitioner is ...

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