United States District Court, N.D. Alabama, Northeastern Division
Scott Coogler United States District Judge
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, 1-2). 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.
Trial Court Proceedings
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. (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.
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
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.) 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.
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, 204 So.3d at 33.
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).
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
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
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
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).
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).
Resentencing and Motion to Modify Sentence on Remand
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).
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
Appeal After Remand
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
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
(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).
Rule 32 Proceedings and State Collateral Appeal
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
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
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
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
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).
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).
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).
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).
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).
Federal Habeas Petition
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), 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).
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).
Statute of Limitations
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).
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.
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
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.
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.
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
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
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).
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).
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.
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)).
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).
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).
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 ...