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Lucas v. Estes

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

September 19, 2019

BRIAN FREDERICK LUCAS, Petitioner,
v.
DEWAYNE ESTES and the ATTORNEY GENERAL OF THE STATE OF ALABAMA, Respondents.

          MEMORANDUM OPINION

          L. Scott Coogler United States District Judge

         This is an action on a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by Brian Frederick Lucas, an Alabama state prisoner acting pro se. (Docs.[1] 1, 1-1, 1-2). Lucas challenges his convictions in the Circuit Court of Madison County, Alabama, for sexual abuse in the first degree and attempted sexual misconduct. The State has filed an answer in opposition to the petition (Doc. 8), and Lucas has filed a reply thereto. (Doc. 10). Upon consideration, the court find that the petition is due to be denied.

         I. BACKGROUND

         A. Trial Court Proceedings

         On September 26, 2014, a Madison County grand jury indicted Lucas for four sex offenses. (Doc. 8-1 at 82-85). Count 1 charged attempted sodomy in the first degree, alleging that Lucas attempted to engage in deviate sexual intercourse by forcible compulsion, see Ala. Code §§ 13A-6-63(a)(1) and 13A-4-2. (Id. at 83). Count 2 charged sexual abuse in the first degree, alleging that Lucas had subjected the victim to sexual contact while physically helpless or mentally incapacitated, in violation of Ala. Code § 13A-6-66(a)(2). (Id.) Both of those counts identified the victim as H.B.[2] (id.), whose older sister was formerly married to Lucas. When the incident underlying the charges occurred on the morning of December 31, 2013, H.B. was 15 years old. See Lucas v. State, 204 So.3d 929, 932, 937 (Ala.Crim.App.2106). Counts 3 and 4 of the indictment both also charged Lucas with sexual abuse in the first degree in violation of § 13A-6-66(a)(2), but against a different victim, M.C., also a minor female. (Id.)

         Lucas moved for separate trials, arguing that consolidating the offenses against both victims would result in the jury hearing evidence of collateral bad acts that Lucas posited would be inadmissible under Rule 404(b), Ala. R. Evid. (Doc. 8-1 at 52-54). The trial court granted the motion (id. at 72-73), and on February 9, 2015, Lucas, represented by retained counsel Richard D. Jensen, went to trial on just the first two counts of the indictment, involving his alleged offenses against H.B. The Alabama Court of Criminal Appeals (“ACCA”) summarized the State’s evidence at trial as showing the following facts related to Lucas and H.B., as follows:

S.B. has three daughters-A.B., K.B., and H.B. A.B., S.B.’s oldest daughter, married Lucas in 2007; they had one child, L.L., and later divorced. Lucas subsequently married a woman named Autumn. A.B. maintained primary physical custody of L.L. following her divorce from Lucas. L.L. stayed with S.B. several nights a week when A.B. worked third shift as a nurse at a Huntsville hospital. Lucas would sometimes visit L.L. while L.L. was spending the night at S.B.’s house.
On December 31, 2013, at approximately 3:30 a.m. S.B. received a telephone call from Lucas, who asked if he could come to S.B.’s house “to talk.” S.B. testified that she believed Lucas was intoxicated when he telephoned her. S.B. told Lucas he could come to the house; Lucas arrived less than 10 minutes later. S.B. listened to Lucas talk about problems he was having with his second wife at the time. S.B. believed it was in Lucas’s best interests not to drive home because he had been drinking, so she told Lucas that he could spend the night. Lucas got into bed, fully clothed, with his son, L.L., who was sleeping in S.B.’s bed. S.B. went to sleep in a guest bedroom.
H.B., who was 18 years old at the time of trial, testified that on the evening of December 30, 2013, she went to sleep in her bedroom around 10:30 p.m. H.B. testified that at approximately 6:00 a.m. on December 31, 2013, she “felt something agitating [her] face, rubbing it.” (R. 173.)[3] H.B. testified that she “could feel it the whole time” and that she felt it “around the base of [her] nose and [her] upper lip.” (R. 173.) H.B. testified that she slowly started to wake up and saw an erect penis in her face and the silhouette of a man holding it. H.B. immediately pulled back and covered her mouth with her hands. H.B. testified that it was dark in the room and that she could not see the man’s face but could see that he was bald and that he was wearing pants that had been pulled down to the top of his thighs and a belt that had been undone. After staring at each other for a few moments in silence, H.B. saw the man pull up his pants, walk out of her room, and then heard him walk into S.B.’s bedroom. H.B. followed the man into S.B.’s bedroom, turned on the bedroom light, and saw that it was Lucas. H.B. then returned to her bedroom and locked the bedroom door.
Shortly thereafter, H.B. told S.B. what had happened and then both H.B. and S.B. told A.B. about the incident after A.B. arrived home from work. S.B. telephoned the Huntsville Police Department, who then took a statement from H.B. and transported H.B. to Crisis Services of North Alabama for an interview. H.B. then went to the Madison County Children’s Advocacy Center for another interview. Lucas was subsequently arrested.
H.B. testified regarding two incidents that occurred with Lucas before December 2013. H.B. testified that when she was 13 or 14 years old, Lucas telephoned her at 2:00 a.m. when he was drunk and asked if he could come over. H.B. agreed and left the door unlocked for Lucas before returning to her bed. H.B. testified that when Lucas arrived he got in bed with her, put his arm around her and said “‘baby, you’re so hot’ about three times.” (R. 184.) H.B. pushed Lucas’s arm off of her and went to S.B.’s room to sleep. The second incident occurred when H.B. was 15 years old. H.B. testified that she went over to Lucas’s parents’ house to swim. After they swam for a couple of hours, Lucas and H.B. went inside and sat down in the living room, where Lucas searched for a pornography Web site on his computer. H.B. testified that Lucas “clicked on a video of a girl and guy having anal sex and he said, wow, she’s taking it like a champ. Most girls are like, oh, it hurts too bad. And then he closed it.” (R. 186.)
Chad Smith, an investigator with the Huntsville Police Department, interviewed Lucas on January 27, 2014. An audio recording of the interview was played for the jury at trial. In his statement to police, Lucas told Smith that in the early morning hours of December 31, 2013, he woke up to find water spilled on him in the bed he was sharing with L.L. Lucas went into H.B.’s bedroom and tried to wake her up to help him clean up the water. Lucas told Smith that he shook H.B. and pinched her nose but H.B. would not wake up. Lucas then returned to S.B.’s room where he had been sleeping with L.L. According to Lucas, shortly thereafter H.B. came into the room for a moment before leaving to return to her own bedroom.

Lucas, 204 So.3d at 932-33.

         While Lucas was tried only on the two counts naming H.B. as the victim, the trial court ultimately decided to allow the State also to elicit testimony from the other victim named in the indictments, M.C., about sex-related incidents with Lucas. The ACCA summarized M.C.’s testimony as follows:

M.C., who was 19 years old at the time of trial, testified that when she was 17 and 18 years old she babysat for Lucas’s ex-wife Autumn’s child. On February 2, 2014, M.C. turned 18 years old. M.C., who was with her boyfriend, telephoned Lucas on her birthday and asked Lucas to obtain “some alcohol” for them. M.C. and her boyfriend drove to Lucas’s house to “hang out” and drink. (R. 306.) After drinking for a couple of hours, M.C. and her boyfriend fell asleep on Lucas’s couch. M.C., who was lying on the outside of the couch next to her boyfriend, was awakened when she felt fingers down the back of her pants and in her rectum. M.C. testified that her pants were pulled down. M.C. testified that she did not know whose fingers they were at the time but at first thought that her boyfriend was touching her. M.C. testified that she got up off the couch and went to the bathroom. When she got up, M.C. saw Lucas kneeling beside the couch with his head on an ottoman that was pushed up against the couch. M.C. stated that her boyfriend was “knocked out” during this time. (R. 310.)
After she returned from the bathroom, M.C. lay back down on the couch and went back to sleep. M.C. testified that shortly thereafter she woke up again when she felt fingers inside her vagina. M.C.’s pants were pulled down below her knees. M.C. testified that she then realized that it was not her boyfriend touching her because his arm was underneath her. M.C. testified that she opened her eyes and saw Lucas kneeling over her. M.C. tried to pull away but Lucas would not stop touching her. M.C. testified that she pretended like she had to go to the bathroom again and Lucas stopped touching her. M.C. then woke her boyfriend up and they left Lucas’s house.

Lucas, 204 So.3d at 33.

         The jury found Lucas guilty of both attempted forcible, first-degree sodomy and sexual abuse in the first degree, for subjecting H.B. to sexual contact while physically helpless. (Doc. 8-2 at 76, 78, 79-80). The jury was also instructed upon attempted sexual misconduct under Ala. Code § 13A-6-65(a)(3) as a lesser-included offense of the attempted first-degree sodomy charge. But having found Lucas guilty of the greater offense, the jury did not return a verdict on the lesser. (Id. at 77). The day after the court indicated that it would enter a judgment on the jury’s verdict, the trial court granted a motion by the State to nolle prosse the remaining two charges of the indictment, Counts 3 and 4, relating to Lucas’s alleged offenses against M.C. (Id. at 74, 89).

         On March 13, 2015, the trial court sentenced Lucas to a fifteen-year term of imprisonment on the attempted first-degree sodomy conviction, split to serve three years, the balance suspended, followed by three years of probation. (Doc. 8-2 at 109-110). In the same judgment, Lucas received a seven-year year sentence on the first-degree sexual abuse conviction, again split to serve three years, the balance suspended, followed by three years of probation. (Id.) The court ordered the sentences to run concurrently. (Id.)

         B. Direct Appeal

         Lucas appealed to the ACCA. Still represented by Jensen, with another attorney, William L. Pfiefer, Jr., acting as appellate co-counsel (Doc. 8-3 at 9), Lucas raised five claims:

1. The trial court erred in defining the mouth and nose as intimate parts as a matter of law under Ala. Code § 13-6-60(3) (1975), resulting in an erroneous denial of the motion for judgment of acquittal and erroneous jury instructions on the charge of sexual abuse in the first degree.
2. The trial court erred in denying the motion for judgment of acquittal on the charge of attempted sodomy in the first degree where there was no evidence presented of forcible compulsion and no evidence presented that Mr. Lucas attempted to engage in deviate sexual intercourse.
3. The jury returned mutually exclusive verdicts of guilt.
4. The State failed to lay a proper predicate for the admissibility of Mr. Lucas’s statement to law enforcement because they did not establish that it was knowing or voluntary and did not provide any evidence of what specific Miranda warnings were given to Mr. Lucas.
5. The trial court erred in admitting collateral-act evidence when it was not admissible under any of the permissible purposes under Rule 404(b) of the Alabama Rules of Evidence.

(Doc. 8-8 at 4).

         On April 29, 2016, the ACCA issued a published opinion that affirmed the judgment below in part, reversed it in part, and remanded the action to the trial court for further proceedings. Lucas, 204 So.3d at 943; (see also Doc. 8-13 at 10-42). Specifically, the court of appeals affirmed Lucas’s conviction for sexual abuse in the first degree, holding that the evidence supporting Lucas had rubbed his penis on H.B.’s upper lip area allowed the jury to find that he had subjected H.B. to “sexual contact” within the meaning of § 13A-6-66(a)(2). Id. at 936. The appellate court also declined to address, as not properly raised below, Lucas’s claim that he was entitled to a new trial on the theory that the jury’s verdict, effectively finding that his victim both was subjected to forcible compulsion and was physically helpless, involved mutually exclusive factual findings. Id. at 938. However, the ACCA agreed with Lucas that the State had not presented evidence of forcible compulsion, as required to sustain his conviction for attempted sodomy in the first degree under § 13A-6-63(a)(1). Id. at 937-38. Therefore, the court of appeals reversed that conviction. Nevertheless, the court held the evidence supported that Lucas had committed the lesser-included offense upon which the jury had been instructed, namely, attempted sexual misconduct, in violation of Ala. Code §§ 13A-6-65 and 13A-4-2. Id. Therefore, the court of appeals remanded the case with instructions to the trial court to enter a judgment finding Lucas guilty of that lesser-included offense and to resentence him accordingly. Id. at 938. On May 18, 2016, the ACCA issued a certificate of judgment pursuant to Rule 41, Ala. R. App. P. (Doc. 8-11).

         C. Resentencing and Motion to Modify Sentence on Remand

         On remand, the state trial court held a resentencing hearing on May 26, 2016. (Doc. 8-13 at 62-70). The judge there verbally adjudged Lucas, still represented by attorney Jensen, guilty of attempted sexual misconduct and sentenced him to six months imprisonment on that conviction. The judge further stated that sentence would run concurrently with Lucas’s previously-imposed sentence on the conviction for first-degree sexual abuse. (Id. at 66). Lucas’s counsel thereupon asked the court to modify Lucas’s sentence on that sexual-abuse charge, which, again, called for imprisonment of seven years, split to serve three and three years on probation. (Id. at 67). In support, counsel offered that Lucas, who had remained free on an appeal bond since being convicted, had been a “model prisoner, ” and that, as such, the court should suspend the remainder of the prison term and grant him probation. (Id.) The State objected to that proposal, and the trial judge did not definitively rule on it at the hearing. On May 31, 2016, however, the trial court entered a written order that both memorialized Lucas’s conviction and six-month sentence for attempted sexual misconduct and summarily denied his motion to modify the split sentence on the sexual-abuse conviction. (Doc. 8-12).

         On June 29, 2016, another attorney, Erin Atkins, filed a notice of appearance on behalf of Lucas. (Doc. 8-13 at 46). That same day, Atkins filed a “Motion to Alter, Amend or Vacate, ” again asking the court to modify Lucas’s split sentence on the sexual abuse conviction. (Doc. 8-13 at 47-49). In that motion, Lucas highlighted that on that sentence he was to serve three years in prison and three years on probation, in addition to having to having served nine months with the Department of Corrections as well as about twenty months on house arrest with ankle monitoring. (Id. ¶¶ 6, 7, 10). Lucas argued that “such an extensive period of confinement (which is a cumulative amount of over seven and a half years) is incommensurate with the offense …., is greater than … the original sentence, and … is longer than necessary to serve the interests of justice ….” (Id. ¶ 10). Therefore, Lucas requested that the court impose a shorter prison split on the seven-year sentence, remove the split altogether, or place him on “Community Corrections” with full or partial credit for the time he spent on ankle monitoring. (Id. at 48). On July 6, 2016, the trial court summarily denied Lucas’s motion to set aside or otherwise reconsider his split sentence. (Id. at 55).

         D. Appeal After Remand

         Meanwhile, on July 1, 2016, Lucas had filed a notice of appeal referencing the trial court’s resentencing order of May 31, 2016. (Doc. 8-13 at 50). On the ensuing appeal to the ACCA, Lucas, now represented only by Atkins, raised three claims, as follows:

1. The circuit court lacked jurisdiction to split a 7-year sentence for conviction of a Class C felony to a 3-year period of incarceration since the execution of the 3-year split is illegal under the 2005 Amendment of the Split Sentence Act.
2. The defendant is entitled to a reduction in sentence when the reversal of one conviction has the effect of increasing the amount of time served toward his total sentence.
3. The defendant is entitled to receive credit toward his final sentence for the time he spent on electronic monitoring and strict house arrest during pre-trial and post-trial phases.

(Doc. 8-17 at 4). On March 17, 2017, the ACCA disposed of Lucas’s appeal in an unpublished memorandum opinion. (Doc. 8-19); Brian Frederick Lucas v. State of Alabama, 242 So.3d 240 (Ala.Crim.App.2017) (table). The court of appeals prefaced its discussion by observing that Lucas could have raised his illegal-sentence claim regarding the sexual abuse conviction on his prior appeal but had failed to do so. (Doc. 8-19 at 4). The court did not rule that claim was procedurally barred on that basis, however. Rather, the ACCA dismissed Lucas’s appeal in its entirety on the ground that a defendant has no right under Alabama law to appeal a trial court’s refusal to amend its original sentencing order imposing a split sentence to suspend the remainder of the period of confinement. (Id. at 4-6). Lucas filed an application for rehearing, which was denied on April 21, 2017. Lucas v. State, 246 So.3d 981 (Ala.Crim.App.2017) (table). He then filed a petition for certiorari in the Alabama Supreme Court, which was denied on June 9, 2017. Ex parte Lucas, 251 So.3d 23 (Ala. 2017) (table). A certificate of judgment issued the same day. (Doc. 8-20).

         E. Rule 32 Proceedings and State Collateral Appeal

         Meanwhile, Lucas had also filed a pro se petition in the state trial court seeking postconviction relief pursuant to Ala. R. Crim. P. 32. (Docs. 8-22 & 8-23). On May 19, 2017, the clerk of that court docketed that 101-page, typed petition (Doc. 8-22 at 2), noting that Lucas had paid the filing fee. (Doc. 8-21 at 4-5; see also Doc. 1-2 at 17). Lucas signed and dated his Rule 32 petition on May 17, 2017 (Doc. 8-23 at 47), which he alleges he mailed that day. (Doc. 1-2 at 17). In his Rule 32 petition, Lucas raised the thirteen[4] claims:

1. Trial counsel rendered ineffective assistance by failing to rely on Brady v. Maryland, 313 U.S. 83 (1963) and its progeny to convince the trial court to grant discovery of an audiotaped statement of H.B. and by failing to object to the trial court’s denial of same (Doc. 8-22 at 13-19);
2. The trial court erred by allowing testimony by M.C. of alleged collateral bad acts, in violation of Rule 404(b), Ala. R. Evid. (Doc. 8-22 at 20-28).
3. Trial counsel rendered ineffective assistance by failing to timely and adequately argue for the exclusion of M.C.’s testimony of collateral bad acts. (Doc. 8-22 at 29-40).
4. Trial counsel rendered ineffective assistance by failing to timely and adequately argue Ala. Code § 13A-6-66 is unconstitutionally vague, in violation of the Fourteenth Amendment’s Due Process Clause. (Doc. 8-22 at 41-52).
5. Trial counsel rendered ineffective assistance by failing to timely and adequately object to impermissible bolstering of the victim’s credibility through her mother’s testimony as a violation of Rule 701, Ala. R. Evid. (Doc. 8-23 at 1-8).
6. Trial counsel rendered ineffective assistance by failing to timely and properly move for disclosure of the victim’s audiotaped statements for impeachment purposes. (Doc. 8-23 at 9-13).
7. Trial counsel rendered ineffective assistance by failing to object to the impermissible bolstering of the victim’s credibility through Investigator Chad Smith’s testimony as a violation of Rule 701, Ala. R. Evid. (Doc. 8-23 at 14-19).
8. Trial counsel rendered ineffective assistance by failing to timely and properly object to testimony by Investigator Chad Smith that created the false impression that Lucas had avoided prosecution and 23 at 19, 25). And a result, his tenth, eleventh, and twelfth “issues” in Ground #1 are similarly mislabeled as “Issue IX, ” “Issue X, ” and “Issue XI, ” respectively. may be a flight risk, thus inferring his consciousness of guilt. (Doc. 8-23 at 19-24).
9. Trial counsel rendered ineffective assistance by failing to timely and adequately argue for a judgment of acquittal based on insufficiency of the evidence to support the first-degree sodomy offense under Ala. Code §§ 13A-2-4(c) and 13A-6-60(8) because the overlap between the charges against him would have convinced the jury to acquit him of the first-degree sexual assault offense. (Doc. 8-23 at 25-30).
10. Trial counsel rendered ineffective assistance by failing to timely and adequately argue that his convictions for attempted sodomy in the first degree and sexual abuse in the first degree violated the Double Jeopardy Clause of the Fifth Amendment (Doc. 8-23 at 31-35).
11. Trial counsel rendered ineffective assistance by failing to request a jury instruction based on § 13A-4-2(c) in connection with the attempted first-degree sodomy offense. (Doc. 8-23 at 35-41).
12. Trial counsel rendered ineffective assistance by failing to request a written jury instruction on the definition of “mental incapacitation, ” as set out in Ala. Code §§ 13A-6-60(6) and 13A-6-66(a)(2), in the context of the first-degree sexual abuse offense. (Doc. 8-23 at 42-44).
13. The trial court was without jurisdiction and authority to convict and sentence him to imprisonment for both attempted sodomy in the first degree and sexual abuse in the first degree. (Doc. 8-23 at 45-47).

(Docs. 8-22 & 8-23).

         The State moved to dismiss the Rule 32 petition. (Doc. 8-24). The next day, July 18, 2017, the circuit court entered a one-page order denying the petition without a hearing, stating summarily that Lucas’s claims were procedurally precluded under Rule 32.2, Ala. R. Crim. P., or were without merit. (Doc. 8-25). On July 29, 2017, Lucas mailed a motion to vacate and set aside that order pursuant to Rule 59(e), Ala. R. Civ. P. (Doc. 8-26 at 43). On August 23, 2017, Lucas filed a motion to expedite a ruling on the Rule 59 motion. (Doc. 8-27 at 1-5). At the same time, he also filed in the trial court a notice of appeal (see Doc. 8-21 at 5) and an application to proceed in forma pauperis (“IFP”) on appeal (Doc. 8-28).

         Upon receiving a copy of Lucas’s notice of appeal, the ACCA issued a deficiency notice dated August 28, 2017, advising that, within 14 days, Lucas had to: (1) pay the $200 appellate docketing fee in full, or (2) provide the ACCA with proof that (a) the trial court had granted an application by him to proceed IFP on appeal or (b) he had an IFP application pending in the trial court. (Doc. 8-29). The next day, August 29, 2017, the trial judge entered an order advising Lucas that his application to proceed IFP on appeal would “not be considered until he has filed his Alabama Department of Corrections Average Inmate Deposit Balances for the past 12 months.” (Doc. 8-30).

         On September 6, 2017, the plaintiff filed another application to proceed IFP on appeal, this time directly in the ACCA. (Doc. 8-31). On September 21, 2017, that court issued an order notifying Lucas that his IFP application was deficient and requiring him to provide “a certificate of the warden or other appropriate officer of the institution in which [he] was confined, stating the amount of money or securities on deposit to [his] credit in any account in the institution for the previous twelve months.” (Doc. 8-32). That order further warned that Lucas’s appeal would be dismissed if such documentation was not received within 14 days from the date of the order, i.e., October 5, 2017. (Id.) Lucas claims that, in response, on September 28, 2017, he mailed to the ACCA “a copy of [his] P.M.O.D. [Prisoners’ Money on Deposit] account attached as ordered.” (Doc. 1-2 at 26). While Lucas has not provided this court with a copy of that document, he alleges that his prison “account printout showed that he had [only] $15.12 when he requested leave to proceed [IFP] on appeal ….” (Id.) Lucas has also acknowledged, however, that he had received $1, 224.00 in deposits to his prison account in the 12 months preceding his application to proceed IFP on appeal. (Doc. 10 at 117). On October 10, 2017, the ACCA issued an order summarily denying Lucas’s IFP application and requiring him to pay the $200 appellate docket fee by October 24, 2017. (Doc. 8-33).

         In response, on October 18, 2017, Lucas filed a petition for a writ of mandamus in the Alabama Supreme Court to compel the ACCA to allow him to proceed IFP on his state collateral appeal. (Doc. 10 at 101-124). He also moved in the Alabama Supreme Court for permission to proceed IFP on the mandamus petition. (Id. at 137). On October 26, 2017, however, the ACCA entered an order dismissing Lucas’s Rule 32 appeal for failure to pay the filing fee within the time allotted (Doc. 8-34); Lucas v. State, No. CR-16-1247, 268 So.3d 638 (Ala.Crim.App.2017) (table), accompanied by a certificate of judgment. (Doc. 10 at 127). On November 3, 2017, the Alabama Supreme Court granted Lucas’s application to proceed IFP in relation to his mandamus petition. (Id. at 139). Ultimately, though, the Alabama Supreme Court entered a one-page order on January 29, 2018, summarily denying his mandamus petition. (Id. at 143). On February 12, 2018, Lucas filed a lengthy “petition for reconsideration or rehearing” (id. at 145-173), but the Alabama Supreme Court summarily denied it on March 13, 2018. (Id. at 175).

         F. Federal Habeas Petition

         Lucas then filed his instant pro se federal habeas corpus petition pursuant to 28 U.S.C. § 2254. (Doc. 1). That filing was received and docketed by the clerk of this court on August 1, 2018 (id. at 1), but Lucas signed and dated it June 27, 2018 (id. at 6). In the petition and its accompanying supplement (Doc. 1-2)[5], which total a combined 182 pages, Lucas raises the same claims set forth above from his Rule 32 petition, plus five additional ones, namely, that (1) there was an absence of “available” and “effective” “State corrective process” to allow him to exhaust his claims, based on the Alabama courts’ refusal to allow Lucas to proceed IFP on his state collateral appeal (Doc. 1-2 at 20-40); (2) his convictions for attempted sodomy in the first degree and for sexual abuse in the first degree violated double jeopardy (id. at 132-141); (3) the jury returned mutually exclusive verdicts of guilt (id. at 142-154); (4) the evidence was constitutionally insufficient to support his conviction for sexual abuse in the first degree (id. at 155-162); (4) he is entitled to relief “in light of newly discovered scientific evidence” (id. at 163-167); and (5) he is “actually and factually innocent” so his incarceration violates due process (id. at 168-176).

         The State responded by filing a 73-page answer (Doc. 8), appending approximately 1, 759 pages of records from the state court trial, appellate, and collateral proceedings. (Doc. 8-1 through 8-34). In its answer, the State denies Lucas is entitled to habeas relief, arguing that his claims for federal habeas relief are time barred, procedurally defaulted, meritless, or some combination thereof. On October 1, 2018, Lucas filed a traverse, comprised of a 29-page brief and another 146 pages of exhibits. (Doc. 10).

         II. Statute of Limitations

         The undersigned first considers the State’s argument that Lucas’s habeas petition is untimely. Under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996), habeas applications filed by state prisoners pursuant to 28 U.S.C. § 2254 are subject to a one-year statute of limitations that begins to run from the latest of four dates:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1). However, 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 [§ 2244(d)(1)].” 28 U.S.C. § 2244(d)(2).

         The State argues Lucas’s habeas claims are governed by § 2244(d)(1)(A) and that the statute-of-limitations clock thus commenced when his conviction became final. The State posits that to have occurred on August 16, 2016, ninety days after the ACCA issued its certificate of judgment concluding Lucas’s initial direct appeal, on May 18, 2016. The State further asserts Lucas’s litigation of his “June 29, 2016 motion to modify his split sentence for first-degree sexual assault did not subsequently toll the running of the statute of limitations.” (Doc. 8 at 54, ¶ 58). The State acknowledges that Lucas’s filing his petition for post-conviction relief under Rule 32, Ala. R. Crim. P., could toll the limitations period under § 2244(d)(2) from the time he filed that petition until his appeal from the denial thereof was dismissed by the ACCA on October 26, 2017. (Id.) And the State insists that the statute of limitations expired before Lucas filed his federal habeas petition, which the State says happened on August 1, 2018. (Id.) The State’s calculation of the running of the limitations period under § 2244(d)(1)(A), however, is erroneous, as explained below.

         The Supreme Court has recognized that, for purposes of § 2244(d)(1)(A), the final judgment means the sentence. Burton v. Stewart, 549 U.S. 147, 156 (2007). As such, where a convicted defendant is successful in obtaining a resentencing, whether on direct appeal or in collateral proceedings, the entry of the new sentence constitutes a new judgment, and the statute of limitations under § 2244(d)(1)(A) does not begin to run on federal habeas claims attacking that judgment until it becomes final. See Id . at 156-57; Robbins v. Secretary for Dep’t of Corr., 483 F.3d 737, 738-39 (11th Cir. 2007); Hepburn v. Moore, 215 F.3d 1208, 1209 (11th Cir. 2000); cf. Magwood v. Patterson, 561 U.S. 320, 342 (2010) (holding that a petitioner’s § 2254 habeas application was not a “second or successive” application under 28 U.S.C. § 2244(b) because it was the first to challenge the new judgment arising from his resentencing). Indeed, that rule applies in this circuit even if the petitioner’s habeas claims challenge only the underlying conviction and not any aspect of his resentencing. Ferreira v. Secretary, Dep’t of Corr., 494 F.3d 1286, 1292-93 (11th Cir. 2007); Thompson v. Florida Dep’t of Corr., 606 Fed.Appx. 495, 505 (11th Cir. 2015); cf. Insignares v. Secretary, Fla. Dep’t of Corr., 755 F.3d 1273, 1281 (11th Cir. 2014) (“When a habeas petition is the first to challenge a new judgment [following a resentencing], it is not ‘second or successive’ [under § 2244(b)], regardless of whether its claims challenge the sentence or the underlying conviction.”). Likewise, where a defendant is initially convicted and sentenced on multiple counts in a single judgment, if his conviction or prison sentence is later invalidated as to one or more counts, his resentencing creates a new judgment resetting the limitations period of § 2244(d)(1)(A) as to the convictions and sentences on all counts. See Everett v. Secretary, Fla. Dep’t of Corr., 2019 WL 118016, *3-4 (M.D. Fla. Jan. 7, 2019); see also Fritts v. Jones, 2015 WL 4873646, *2 (N.D. Fla. Aug. 13, 2005) (holding that, where state appellate court vacated one of two convictions and instructed trial court to enter a conviction and resentencing on a lesser-included offense, the conviction became final after he was resentenced on remand); Maharaj v. Sec’y for Dep’t of Corr., 304 F.3d 1345, 1348 (11th Cir. 2002) (where petitioner was originally convicted on multiple counts but was still awaiting resentencing on one of them, the judgment was not yet final for habeas purposes, so his § 2254 petition challenging all convictions and sentences was not ripe for review); cf. Rocha v. Secretary, Fla. Dep’t of Corr., 692 Fed.Appx. 576, 578 (11th Cir. 2017) (holding that where petitioner was convicted on two counts in one judgment, subsequent resentencing on one count gave rise to a new judgment for purposes of habeas claims related to both counts, defeating argument that petition was second or successive under § 2244(b) to the extent it included claims attacking “undisturbed” conviction and sentence); McCloud v. Hooks, 560 F.3d 1223, 1229-30 (11th Cir. 2009) (holding that limitations period of § 2254(d)(1)(A) was triggered separately for claims challenging guilty-plea burglary conviction and those challenging later conviction at trial for capital murder; while both counts were originally in same indictment, the trial court sentenced the defendant at separate times and had entered separate judgments).

         Lucas was initially convicted at trial and sentenced on two counts: attempted sodomy in the first degree and sexual abuse in the first degree. On direct appeal, the conviction and sentence for the latter offense were affirmed, but the conviction and sentence on the former were reversed for insufficient evidence, with the ACCA remanding the case to the trial court with instructions to enter a conviction on a lesser-included offense, attempted sexual misconduct, and to resentence Lucas accordingly. The trial court then carried out that mandate on remand. Under the legal principles set forth above, the state trial court’s act resentencing of Lucas following his initial direct appeal created as a new judgment for purposes of establishing the finality of both of his convictions and sentences under § 2244(d)(1)(A). The State is therefore wrong that the commencement of the federal limitations period might be tied to the Alabama Court of Criminal Appeals’ opinion or the certificate of judgment on Lucas’s initial direct appeal or the 90-day period in which he might have thereafter sought to file a petition for certiorari in the Supreme Court of the United States.[6]

         Because Lucas’s resentencing created a new judgment, the next question is: “When did that judgment become final?” Under § 2244(d)(1)(A), the limitations period begins to run on the date the petitioner’s conviction becomes “final by the conclusion of direct review or the expiration of the time for seeking such review.” Assuming a petitioner timely pursues all available state and federal relief, his conviction becomes final for purposes of the limitations period when the Supreme Court denies or rules on the merits of his certiorari petition. See Phillips v. Warden, 908 F.3d 667, 670 (11th Cir. 2018) (citing Gonzalez v. Thaler, 565 U.S. 134, 149-50 (2012)). If the petitioner timely pursues all available state relief on direct review but does not file a petition for certiorari to the United States Supreme Court, his conviction becomes final at the expiration of the period for filing such a petition. See Id . But if the petitioner fails to timely pursue all available state relief on direct review, his conviction becomes final when the time for seeking review in the relevant state court expires. See id.

         The state trial court held a hearing on May 26, 2016, at which it verbally resentenced Lucas to six months imprisonment for the attempted sexual misconduct conviction, to run concurrently with the previously-imposed split sentence on the first-degree sexual abuse count. On May 31, 2016, the court issued a written resentencing order formally recognizing those terms. After being resentenced, Lucas had 42 days in which to file another direct appeal. Rule 4(b)(1), Ala. R. App. P.; Miller v. Alabama, 2018 WL 7503907, *2 (11th Cir. Aug. 3, 2018). On July 1, 2016, Lucas filed a notice of appeal referencing the trial court’s resentencing order of May 31st. So even assuming Lucas might be deemed to have been resentenced at the hearing on May 26th, his notice of appeal was filed within the 42-day deadline.

         Ultimately, the Alabama Court of Criminal Appeals dismissed Lucas’s appeal on March 17, 2017, concluding it lacked statutory authority to hear the particular type of claims he raised, which the appellate court interpreted as challenging the trial court’s refusal to modify his earlier split sentence. However, where an appellate court involuntarily dismisses a defendant’s timely direct appeal, the Eleventh Circuit has recognized that the conviction is not final for habeas purposes until at least the time of the dismissal. See Stewart v. United States, 646 F.3d 856, 857 (11th Cir. 2011) (for purposes of analogous one-year limitations period of 28 U.S.C. § 2255(f)(1), federal conviction was final 90 days after direct appeal dismissed based on appeal-waiver provision in plea agreement); Roberts v. Secretary, Dep’t of Corr., 2018 WL 4352792, at *1 (11th Cir. Aug. 29, 2018) (conviction became final 90 days after state appellate court denied motion to reinstate direct appeal that had been previously dismissed for failure to pay appellate docketing fee); King v. Secretary, Fla. Dep’t of Corr., 2017 WL 6760186, at *2 (11th Cir. Jan. 5, 2017) (indicating conviction became final 90 days after state appellate court dismissed direct appeal for failure to timely file appellate brief). Following the ACCA’s dismissal opinion, Lucas filed an application for rehearing in that court, and then, when it was denied, a petition for certiorari in the Alabama Supreme Court. There is no claim by the State, nor does it otherwise appear from the record, that either filing was untimely. See generally Rule 40(c), Ala. R. App. P. (requiring an application for rehearing to be filed within 14 days of the appellate decision); Rule 39(c)(2), Ala. R. App. P. (requiring a petition for certiorari in a criminal case to be filed within 14 days of the denial of rehearing by the ACCA). The Alabama Supreme Court denied certiorari and a certificate of judgment issued on June 9, 2017. Therefore, the judgment that Lucas attacks in this habeas action did not become final until 90 days later, on September 7, 2017, upon the expiration of the period in which Lucas could have filed a timely certiorari petition in the United States Supreme Court. See Bond v. Moore, 309 F.3d 770, 774 (11th Cir. 2002). By that measure, the federal habeas limitations period expired one year later, on September 7, 2018. However, under the “prison mailbox rule, ” see Houston v. Lack, 487 U.S. 266 (1988), Lucas’s pro se § 2254 habeas petition would be deemed filed as of July 27, 2018, the date he signed and dated it. See McCloud, 560 F.3d at 1227. But even using the date the clerk formally docketed the petition, August 1, 2018, Lucas’s petition is timely, even with no tolling.[7]

         III. Review Standards

         A district court is authorized to grant federal habeas relief to a state prisoner who establishes that he is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). However, such relief is not available for errors of state law unless such error also gives rise to a violation of federal law. Swarthout v. Cooke, 562 U.S. 216, 219 (2011). Further, “federal courts will not review questions of federal law presented in a habeas petition when the state court’s decision rests upon a state-law ground that ‘is independent of the federal question and adequate to support the judgment.’” Cone v. Bell, 556 U.S. 449, 465 (2009) (quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991); Lee v. Kemna, 534 U.S. 362, 375 (2002)); Wainwright v. Sykes, 433 U.S. 72, 81-88 (1977).

         Also, a state prisoner is generally ineligible for habeas relief under § 2254 unless he has first exhausted the remedies available in the courts of the State of conviction. 28 U.S.C. § 2254(b)(1)(A); Kelley v. Secretary for Dept. of Corr., 377 F.3d 1317, 1343-44 (11th Cir. 2004). As a matter of comity, the rule requires the federal courts to allow the states the initial “opportunity to pass upon and correct errors of federal law in the state prisoner’s conviction.” Fay v. Noia, 372 U.S. 391, 438 (1963). “[C]onsistent with the longstanding requirement that habeas petitioners must exhaust available state remedies before seeking relief in federal court, ... when a petitioner fails to raise his federal claims in compliance with relevant state procedural rules, the state court’s refusal to adjudicate the claim ordinarily qualifies as an independent and adequate state ground for denying federal review.” Cone, 556 U.S. at 465 (citing Coleman, 501 U.S. at 731).

         The exhaustion requirement is not satisfied until the claim has been fully and fairly presented to the state courts for consideration. Picard v. Connor, 404 U.S. 270, 275-76 (1971); Heath v. Jones, 863 F.2d 815, 818 (11th Cir. 1989). To do so, a state prisoner must present any federal constitutional or statutory claim through one complete round of the State’s trial and appellate review process, either on direct appeal or in State post-conviction proceedings, O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999), which in Alabama includes presentation to the Alabama Supreme Court. See Pruitt v. Jones, 348 F.3d 1355, 1359 (11th Cir. 2003); Smith v. Jones, 256 F.3d 1135, 1140-41 (11th Cir. 2001). Where a claim has not been exhausted in the State courts and the time in which to present the claim there has expired, the claim is procedurally defaulted and habeas review in the federal courts is generally precluded. See Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991); McNair v. Campbell, 416 F.3d 1291, 1305 (11th Cir. 2005).

         Where a state prisoner has procedurally defaulted a federal claim in the state courts, either because of a state-law procedural bar or a want of exhaustion, a petitioner is entitled to federal habeas review on the merits of any such claim only upon a showing of either (1) “cause” for the default and resulting “prejudice, ” or (2) that failure to review the claim will result in a “fundamental miscarriage of justice.” See Spencer v. Secretary, Dep’t of Corr., 609 F.3d 1170, 1179-80 (11th Cir. 2010); In re Davis, 565 F.3d 810, 821 (11th Cir. 2009). “To establish ‘cause’ for procedural default, a petitioner must demonstrate that some objective factor external to the defense impeded the effort to raise the claim properly in the state court.” Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir. 2003) (quotation marks and citation omitted); see also Murray v. Carrier, 477 U.S. 478, 488 (1986). “To establish ‘prejudice, ’ a petitioner must show that there is at least a reasonable probability that the result of the proceeding would have been different.” Henderson, 353 F.3d at 892 (citation omitted). The “miscarriage of justice” exception applies “where a constitutional violation has resulted in the conviction of someone who is actually innocent.” House v. Bell, 547 U.S. 518, 536 (2006) (citation omitted). “[P]risoners asserting innocence as a gateway to defaulted claims must establish that, in light of new evidence, ‘it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.’” Id., 547 U.S. at 536-37 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)).

         Even where this court is authorized to review a federal claim on the merits, the scope of review may be limited significantly by AEDPA. See 28 U.S.C. § 2254; Williams v. Taylor, 529 U.S. 362, 402-03 (2000). Where a claim was adjudicated on the merits in state court, habeas relief under § 2254 is precluded unless the state court’s adjudication of the claim resulted in a decision that was either (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, ” 28 U.S.C. § 2254(d)(1), or (2) “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, ” 28 U.S.C. § 2254(d)(2). Further, factual determinations by state courts are presumed correct, subject to being rebutted only upon a showing by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

         The Supreme Court has explained that “[a] state-court decision is contrary to this Court’s clearly established precedents if it applies a rule that contradicts the governing law set forth in our cases, or if it confronts a set of facts that is materially indistinguishable from a decision of this Court but reaches a different result.” Brown v. Payton, 544 U.S. 133, 141 (2005) (citing Williams, 529 U.S. at 405; Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam)). The Supreme Court has likewise stated that “[a] state-court decision involves an unreasonable application of this Court’s clearly established precedents if the state court applies this Court’s precedents to the facts in an objectively unreasonable manner.” Id. (citing Williams, 529 U.S. at 405; Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002)). The phrase “clearly established Federal law” in § 2254(d)(1) refers to the holdings, as opposed to the dicta, of the decisions of the United States Supreme Court, in precedent issued at the time the state court rendered its decision. Carey v. Musladin, 549 U.S. 70, 74 (2006); Yarborough v. Alvarado, 541 U.S. 652, 660-661 (2004); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003); see also Neelley v. Nagle, 138 F.3d 917, 923 (11th Cir. 1998) (“[A] district court evaluating a habeas petition under § 2254(d) should survey the legal landscape at the time the state court adjudicated the petitioner’s claim to determine the applicable Supreme Court authority” (internal quotation marks and citation omitted), overruled on other grounds by Williams, as stated in Parker v. Head, 244 F.3d 813, 835 (11th Cir. 2001)). By contrast, “clearly established Federal law” does not include decisions of lower federal courts. Renico v. Lett, 559 U.S. 766, 778-79 (2010).

         “AEDPA thus imposes a highly deferential standard for evaluating state-court rulings, and demands that state-court decisions be given the benefit of the doubt.” Renico, 559 U.S. at 773 (citations and internal quotation marks omitted). For purposes of § 2254(d)(1), “an unreasonable application of federal law is different from an incorrect application of federal law.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Williams, 529 U.S. at 410 (emphasis original)). “Indeed, ‘a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.’” Renico, 559 U.S. at 773 (quoting Williams, 529 U.S. at 411). Rather,

[a] state court’s determination that a claim lacks merit precludes federal habeas relief so long as “fairminded jurists could disagree” on the correctness of the state court’s decision. Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). ... “[E]valuating whether a rule application was unreasonable requires considering the rule’s specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.” Ibid. “[I]t is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by this Court.” Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) (internal quotation marks omitted).

Harrington, 562 U.S. at 786. Likewise, “a state-court factual determination is not unreasonable [for purposes of § 2254(d)(2)] merely because the federal habeas court would have reached a different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). “[E]ven if ‘[r]easonable minds reviewing the record might disagree’ about the finding in question, ‘on habeas review that does not suffice to supersede the [state] trial ...


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