United States District Court, N.D. Alabama, Southern Division
DAVID PROCTOR UNITED STATES DISTRICT JUDGE
case is before the court on Mark Anthony Jewell's
(“Jewell”) petition for writ of habeas corpus,
filed on August 8, 2018 (see Doc. 1), and the
Magistrate Judge's Report and Recommendation that the
petition be denied. After careful review, the court
concludes, over Petitioner's objections, that the
Magistrate Judge's report is due to be adopted.
19, 2015, Jewell was convicted in Pickens County Circuit
Court of (1) first degree sodomy of a child under 12 years of
age, (2) first degree rape of a child under 12 years of age,
(3) enticing a child for immoral purposes, and (4) two counts
of sexual abuse of a child less than 12 years of age. (Doc.
4-1 at 46; Doc. 4-2 at 152-57). On August 7, 2015, Jewell was
sentenced to 50 years for the first degree sodomy, life
without parole for first degree rape, five years for enticing
a child for immoral purposes, 15 years as to the first count
of sexual abuse of a child under 12 years of age, and 10
years for the second count of sexual abuse of a child under
12 years of age. (See Doc. 4-3 at 207-09). The
sentences were ordered to run consecutively. (Doc. 4-6 at
November 12, 2015, Jewell appealed his convictions
(see Doc. 4-6 at 55), arguing that the trial court
(1) violated his rights to be present during the giving of
additional jury instructions, (2) erred in denying his motion
for judgment of acquittal, (3) abused its discretion
regarding the examination of the State's witnesses, and
(4) failed to properly instruct the jury concerning the
admission of out-of-court statements and the assessment of
child witnesses. (See Doc. 4-7). On May 27, 2016,
the Alabama Court of Criminal Appeals affirmed Jewell's
convictions. (Doc. 1 at 3; Doc. 4-6 at 51-53). On September
16, 2016, the Alabama Supreme Court denied Jewell's
Petition for Writ of Certiorari without opinion and a
certificate of judgment was issued. (Doc. 4-10).
8, 2017, Jewell filed a petition under Rule 32 of the Alabama
Rules of Criminal Procedure. (Doc. 4-11 at 4-9). Jewell
alleged that newly discovered evidence required his
convictions to be vacated. He also asserted that he received
ineffective assistance of counsel because his counsel failed
to present expert testimony, failed to adequately present a
defense, and failed to adequately prepare for trial.
(Id.). On August 21, 2017, the Pickens County
Circuit Court issued an order dismissing Jewell's
petition. (Doc. 4-11 at 25-26). Jewell appealed this
decision, and on February 2, 2018, the Alabama Court of
Criminal Appeals denied the petition. (Doc. 4-14). On June 8,
2018, the Alabama Supreme Court denied Jewell's petition.
August 8, 2018, Jewell filed this habeas action, largely
presenting the same arguments regarding newly discovered
evidence and ineffective assistance of counsel. (Doc. 1). On
November 1, 2019, the Magistrate Judge filed a report
recommending the petition be dismissed with prejudice. (Doc.
7). Jewell filed timely objections. (Doc. 8).
argues the Magistrate Judge disregarded his ineffective
assistance of counsel claims and failed to acknowledge new
evidence that implicated constitutional violations.
(Id. at 1, 4). The court analyzes each of these
claims, in turn. Because the Alabama Court of Criminal
Appeals addressed these claims on the merits in a reasoned
opinion, “a federal habeas court simply reviews the
specific reasons given by the state court and defers to those
reasons if they are reasonable.” Wilson v.
Sellers, __ U.S. __, 138 S.Ct. 1188, 1192 (2018).
Jewell Has Failed to Establish Ineffective Assistance of
Supreme Court has recognized a two-part test for determining
whether a defendant has presented a valid claim for
ineffective assistance of counsel: (1) whether the defendant
can show that counsel's representation fell below an
objective standard of reasonableness; and (2) whether the
defendant can show that there is a reasonable probability
that, but for counsel's unprofessional errors, the result
of the proceeding would have been different. Hill v.
Lockhart, 474 U.S. 52, 57 (1985) (citing Strickland
v. Washington, 466 U.S. 668, 687-88, 694 (1984)).
claims his counsel was ineffective in three respects. First,
Jewell contends that his state trial counsel failed to ask
his son, Mark Jr., “about the specific date of the
alleged misconduct.” (Doc. 8 at 6). This failure,
Jewell claims, amounts to deficient representation. Jewell
asserts that if Mark Jr. would have been effectively
questioned, he would have testified that Jewell was not at
home on one of the days the inappropriate sexual conduct
occurred. (Id. at 2). Jewell also states that on
another occasion, Mark Jr. would have testified that he did
not see “any inappropriate contact.” (Doc. 1 at
7-8; Doc. 8 at 2).
Jewell contends that trial counsel should have subpoenaed
Jewell's work records, which allegedly would show that
Jewell was at work every day the inappropriate conduct
occurred. (Doc. 8 at 2).
Jewell contends that his trial counsel should have called a
forensic expert to testify that the victims' hymens were
still intact, and this “evidence” would have
“discredited and disregarded the ...