BERT W. MILLING, JR., United States Magistrate Judge.
This is an action under 28 U.S.C. § 2254 by an Alabama inmate which was referred for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B), Local Rule 72.2(c)(4), and Rule 8 of the Rules Governing Section 2254 Cases. This action is now ready for consideration. The state record is adequate to determine Petitioner's claims; no federal evidentiary hearing is required. It is recommended that the habeas petition be denied, that this action be dismissed, and that judgment be entered in favor of Respondent Billy Mitchem and against Petitioner James Brown on all claims.
Petitioner was convicted of burglary first degree in the Circuit Court of Mobile County on March 25, 1994 for which he received a life sentence without parole in the state penitentiary pursuant to the Alabama Habitual Offender Statute. Appeal was made to the Court of Criminal Appeals of Alabama which affirmed the conviction and sentence (Doc. 11, Exhibit D). Brown filed a complaint with this Court on December 7, 1998, raising the following claims: (1) The prosecutor used perjured testimony and unreliable evidence; and (2) Petitioner's appellate counsel rendered ineffective assistance (Docs. 1, 3).
Petirioner initially raised a third claim regarding newly discovered evidence (Doc. 1). However, Brown subsequently moved to amend his petition and delete the third claim from consideration (Doc. 3). The motion to amend was granted (Doc. 17).
Petitioner claims that the prosecutor used perjured testimony and unreliable evidence. Brown more specifically states that "the prosecutor and police officers devised a deceptive plan to fabricate fourth amendment requirement [sic] to a warrantless vehicle search" (Doc. 1, p. 4). Petitioner states that "[t]he issue under attack here is a warrantless vehicle search" (Doc. 3, p. 3).
The Court notes that "`[i]n order for perjury by a witness to constitute grounds for the grant of a habeas corpus writ it would have to be shown that the state knowingly used the perjured testimony.'" Braxton v. Estelle, 641 F.2d 392, 395 (5th Cir. Unit A April 1981) (quoting Skipper v. Wainwright, 598 F.2d 425, 427 (5th Cir.), cert. denied, 444 U.S. 974 (1979), citing Giglio v. United States, 405 U.S. 150 (1972)). The Court further notes, to the extent the claim raised herein relates to a fourth amendment claim, that in Stone v. Powell, 428 U.S. 465, 494 (1976), the Supreme Court held that "[w]here the state has provided an opportunity for a full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that the evidence obtained in an unconstitutional search or seizure was introduced at his trial." Because Petitioner's claim relates to an alleged fourth amendment violation, and because this claim was fully litigated in state courts, habeas corpus relief is not available. However, because Brown's claim is couched in terms of perjured witnesses, the Court will further explore it.
The Eleventh Circuit, in the en banc decision Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981.
Petitioner argues that there was conflicting evidence as to the color of the mustang that he was in at the time of arrest (cream) and the color of the car for which the police were looking (light brown). Brown further argues that the documents used by the Prosecutor to show that he owned the vehicle did not, in fact, prove that.
The Court has reviewed Brown's pleadings, viewed all of the evidence to which he points, and finds no merit in this claim (Doc. 1, pp. 4, 8-16, 20; Doc. 3, pp. 1-3, 6-7; Doc. 14, pp. 2-14). The Court notes first that reasonable minds could differ over whether a car was either light brown or cream-colored; it is further noted that although there was testimony that the police were looking for a light brown vehicle, one report indicated that they were looking for a "light brown/beige vehicle" (Doc. 1, Exhibit 4, p. 1). In any event, there was no dispute that the vehicle being sought was an old mustang. Furthermore, the Court has viewed the documents which Brown argues support his perjury claim and finds that they do, in fact, prove that the vehicle in question belonged to his wife at the time of his arrest; the fact that Mrs. Brown had not completely paid for the car at the time of his arrest, and had not yet applied for the title, does not detract from the fact that Petitioner was stopped — and later arrested — because he was driving a car with a stolen tag (see Doc. 1, Exhibits 1-3). Petitioner has not demonstrated that any perjury was committed at his trial; at most, he has shown that there was a conflict in the evidence. Brown has certainly not demonstrated that the prosecutor knew of any perjury and allowed that evidence to go the jury. This claim is of no merit.
Petitioner also claims that his appellate attorney rendered ineffective assistance of counsel. (Doc. 1, pp. 17-19; Doc. 3, pp. 4-6; Doc. 14, pp. 14-24). Brown alleges that his attorney did not confer with him concerning which issues needed to be raised on appeal.
In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court defined the showing a habeas petitioner must make to prevail on an ineffective assistance claim:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the sixth amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.
Id. at 687. In
Evitts v. Lucey, 469 U.S. 387 (1985), the United States Supreme Court extended
Strickland to the appellate level, stating that "[a] first appeal as of right therefore is not adjudicated in accord with due process of law if the appellant does not have the effective assistance of an attorney."
Id. at 396.
Petitioner claims that his appellate attorney was not prepared for the appeal in that he did not confer with him regarding which claims needed to be "raised. Brown has alleged twelve different particular issues which the attorney should have raised on appeal to support this claim (Doc. 1, pp. 17-18). The Court notes that every particular issue alleged relates to the perjured witnesses/illegal search claim previously discussed in this report. The Court found the allegations which related to the perjured witnesses to be without merit. The Court further noted that the fourth amendment claims would not be discussed. These particular claims gain no new life under the ineffective assistance of appellate counsel umbrella. Brown has not demonstrated that his attorney was deficient or that he has been prejudiced by his attorney's failure to raise the claims he alleges should have been raised. This claim is of no merit.
Petitioner has raised two different claims in bringing this action. Both are without merit. Therefore, it is recommended that this habeas petition be denied, that this action be dismissed, and that judgment be entered in favor of Respondent Billy Mitchem and against Petitioner James Brown on all claims.