United States District Court, N.D. Alabama, Northeastern Division
K. KALLON UNITED STATES DISTRICT JUDGE.
an action for a writ of habeas corpus action filed by
petitioner Wilbert James Smith, pro se. Doc. 1.
Smith challenges his 2013 conviction in Madison County
Circuit Court on three counts of capital murder. Id.
at 2. On November 16, 2018, the magistrate judge entered a
report and recommendation pursuant to 28 U.S.C. §
636(b), recommending that habeas relief be denied. Doc. 7.
Smith filed timely objections to the report and
recommendation. Doc. 10.
Smith's objections is based on his belief that he was
denied effective assistance of counsel. To establish
ineffective assistance of counsel, a petitioner must
demonstrate that his trial attorney's performance fell
below an objective standard of reasonableness, and that there
is a reasonable probability that the result of the trial
would have been different but for the deficiency.
Strickland v. Washington, 466 U.S. 668, 687-92
(1984). The Supreme Court observed
“Strickland's first prong sets a high bar.
A defense lawyer navigating a criminal proceeding faces any
number of choices about how best to make a client's case.
The lawyer has discharged his constitutional responsibility
so long as his decisions fall within the ‘wide range of
professionally competent assistance.' It is only when the
lawyer's errors were ‘so serious that counsel was
not functioning as the counsel guaranteed . . . by the Sixth
Amendment' that Strickland's first prong is
satisfied.” Buck v. Davis, 580 U.S. ___, 137
S.Ct. 759, 775 (2017) (internal citations omitted). Review of
claims of ineffective assistance of counsel under AEDPA are
“doubly deferential, ” Cullen v.
Pinholster, 563 U.S. 170, 190 (2011), because counsel is
“strongly presumed to have rendered adequate assistance
and made all significant decisions in the exercise of
reasonable professional judgment, ” Burt v.
Titlow, 571 U.S. 12, 22 (2013) (quoting
Strickland, 466 U.S. at 690; internal quotation marks
court must follow the two-step process in applying §
2254(d) set forth in Harrington v. Richter, 562 U.S.
86, 102 (2011). Ray v. Alabama Dep't of Corr.,
809 F.3d 1202, 1209 (11th Cir. 2016), cert. denied,
137 S.Ct. 417 (2016). First, the court must “determine
what arguments or theories support . . . the state
court's decision;” then the court must consider
“whether it is possible fairminded jurists could
disagree that those arguments or theories are inconsistent
with the holding in a prior decision of th[e] [Supreme]
Court.” Ray, 809 F.3d at 1209 (alterations in
original, citations omitted). When the last state court to
decide a prisoner's federal claim explains its decision
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). When that state court's decision does not
explicitly state those reasons, the federal court must
“look through” the unexplained decision to the
last related state court decision that does provide a
rationale and presume the unexplained decision adopted that
rationale. Id. Thus, this court considers the
petitioner's claims in light of the Alabama Court of
Criminal Appeals decision.
first objects to the report and recommendation on his claim
that trial counsel was ineffective for failing to object to
expert witness testimony about DNA population frequency
statistics. Doc. 10 at 4. Specifically, Smith claims his
attorney should have “objected to the testimony of
State witness Crystal Kissel, DNA expert, and asked her how
she had calculated and/or arrived at this enormous phantom
number [of one in fifty quadrillion]” because this
evidence was prejudicial to him. Id. at 5-6.
According to Smith, because “there has never existed
fifty quadrillion unrelated African Americans . . . [s]uch
theory is error and could never be reliable . . ., ”
id. at 6, and, therefore, his attorney erred by not
objecting to this testimony. At trial, Crystal Kissel, a
scientist with the Alabama Department of Forsensic Sciences,
testified that DNA testing from the crime scene yielded
results which did not match either of the victims. Those
unknown samples were run through a database to search for
matches. Doc. 5-7 at 71. That database search revealed the
petitioner as a match for the samples. Id., at 77.
Lily S. Harper, also a scientist with the Alabama Department
of Forensic Sciences, testified that she analyzed the known
sample of DNA taken from Smith, that DNA recovered from the
crime scene was a match to Smith, and that the combination of
genetic traits in the recovered DNA would occcur in
approximately 1.1 quadrillion random unrelated African
American individuals. Doc. 5-7 at 101, 103. Smith's argument
that because “there has never existed fifty quadrillion
unrelated African Americans . . . [s]uch theory is error and
could never be reliable, ” doc. 10 at 6 is based on a
misunderstanding of statistical probability. He does not
provide any basis to find the state court's decision was
based on an error of constitutional law so grave reasonable
minds could not agree that it was correct. See e.g,
Harrington, 562 U.S. at 103; Wilson v. Warden,
Georgia Diag. Prison, 898 F.3d 1314, 1321 (11th Cir.
next objects that counsel was ineffective for failing to
object to the prosecutor questioning a witness as to whether
Smith made a statement after his arrest. Doc. 10 at 7. The
record extablished that Smith's counsel did object to
questions by the prosecutor along this line, and that the
trial court gave a curative instruction. Doc. 5-8 at 79-83.
Relying on Greer v. Miller, 483 U.S. 756 (1987), the
magistrate judge reasoned that trial counsel's immediate
objection, combined with the trial court's curative
instruction, prevented any constitutional error from
occurring. Doc. 7 at 16. Therefore, the Alabama Court of
Criminal Appeals' determination that this claim was
“meritless” because no testimony concerning the
petitioner's post-arrest silence occurred, doc. 5-20 at
12, was not a ruling upon which fairminded jurists could
disagree. Smith's objection based on his disagreement
with the law does not alter this analysis.
third objection attacks the magistrate judge's finding
that trial counsel was not ineffective in failing to object
to the trial court's supplemental jury instruction on
accomplice liability. Doc. 10 at 9. At trial, the jury
returned twice to the courtroom with questions regarding the
jury instruction on accomplice liability. Doc. 5-9 at 59-67,
69-74. Relying on § 12-21-222, Alabama Code
1975, as amended, Smith argues that the trial court
deprived him of a correct statement of law, and therefore the
Alabama Court of Criminal Appeals erred in its determination
that his counsel was not deficient. Doc. 10 at 9-10. The
Alabama appellate court noted the jury instruction given on
accomplice liability mirrored that in the Alabama Pattern
Jury Instructions, doc. 5-20 at 14, and found that
“no evidence . . . support[ed] the assertion that Smith
procured or induced another into committing the offense . . .
. Consequently, trial ‘[c]ounsel is not ineffective for
failing to raise a baseless claim.'” Id.
(citations omitted). The petitioner fails to demonstrate this
state court decision applied law contrary to that established
by the Supreme Court, or applied the law in an objectively
unreasonable manner. See e.g., Williams v. Taylor,
529 U.S. 362, 412-13 (2000).
objects to the finding that trial counsel did not err in not
objecting to the trial court excusing a potential juror. Doc.
10 at 10. This objection challenges the trial court's
decision to excuse three potential jurors from the venire: a
juror who had a nephew who had been murdered recently, a
juror who suffered from anxiety, and a juror who failed to
return after a break. Id. at 11. While Smith
contends that his trial counsel acted ineffectively in
agreeing to the release of these venire members, Smith fails
to provide any evidence as to how this was error by counsel.
this claim on its merits, the Alabama Court of Criminal
Smith has not alleged any facts that, if true, would
establish that his counsel's performance was deficient or
could not have been justified as a strategic decision.
Strickland, 44 U.S. at 689. Further, Smith also
failed to plead any facts that, if true, would demonstrate
that there is a reasonable probability that, but for his
trial counsel's failure to object to the trial
court's excusal of prospective jurors P.H. and K.R., the
result of his trial would have been different. Id. See
also Boyd v. State, 913 So.2d 1113, 1133 (Ala.Crim.App.
2003) (holding that a bare assertion of the appellant's
subjective opinion that counsel should have performed
differently is insufficient to satisfy the pleading
requirements of Rule 32.6(b), Ala. R. Crim. P.).
Doc. 5-20 at 15. This decision was neither contrary to, nor
an unreasonable application of clearly established federal
law, and it was not based on an unreasonable determination of
the facts in light of the evidence presented. As noted by the
magistrate judge, strategic decisions by counsel in selecting
a jury only provide a basis for a claim of ineffective
assistance of counsel where “counsel's decision is
. . . so ill-chosen that it permeates the entire trial with
obvious unfairness.” Doc. 7 at 20 (quoting Hughes
v. United States, 258 F.3d 453, 457 (6th Cir. 2001).
Smith objects to the magistrate judge's finding that
trial counsel was not ineffective for not objecting to the
withholding of exculpatory evidence. Doc. 10 at 12. The
evidence in question is the fingerprints of other individuals
who were in the home where the murders occurred. According to
Smith, he could have used this evidence to demonstrate that
other individuals committed the murders. Id. at 13.
The Alabama Court of Criminal Appeals rejected this argument,
holding that Smith “failed to plead any facts
indicating how this evidence was exculpatory, favorable, or
material.” Doc. 5-20 at 19. The court finds nothing in
this statement “involved an unreasonable application of
. . . clearly established Federal law . . . .”
Nevada v. Jackson, 569 U.S. 505, 508 (2013)
(quoting 28 U.S.C. § 2254(d)(1)). It
certaininly does not reflect an error of existing law so well
understood that it is “beyond any possibility for
fairminded disagreement.” Harrington v.
Richter, 562 U.S. at 103.
carefully reviewed and considered de novo all the
materials in the court file, including the magistrate
judge's Report and Recommendation and Smith's
objections thereto, the magistrate judge's findings are
due to be and are hereby ADOPTED, and his
recommendation is ACCEPTED. Smith's
objections are OVERRULED. Accordingly, the
petition for writ of habeas corpus is due to be
DENIED and DISMISSED WITH
PREJUDICE. Further, because the petition does not
present issues that are debatable among jurists of reason, a
certificate of appealability is also due to be
DENIED. See 28 ...