Jewell v. Dunn

          MEMORANDUM OPINION

          R. DAVID PROCTOR UNITED STATES DISTRICT JUDGE

         This 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.

         I. Background

         On June 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 625).

         On 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).

         On June 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. (Doc. 4-15).

         II. Analysis

         On 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).

         Jewell 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).

         A. Jewell Has Failed to Establish Ineffective Assistance of Counsel

         The 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)).

         Jewell 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).

         Second, 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).

         Third, 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 ...