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 Charles Jones and against Petitioner Jimmy Lee Montgomery on all claims.
Petitioner was convicted of robbery first degree in the Circuit Court of Mobile County on March 18, 1992 for which he received a sentence of life without parole in the state penitentiary. Appeal was made to the Court of Criminal Appeals of Alabama which affirmed the conviction and sentence (Doc. 12, Exhibit D). Petitioner filed a complaint with this Court on January 29, 1997, raising the following claims: (1) Petitioner's trial attorney rendered ineffective assistance; (2) he was not properly identified as the perpetrator of the crime; (3) the evidence was insufficient to convict him; and (4) the trial judge improperly denied written jury requests (Doc. 1).
Respondent has claimed that Petitioner has procedurally defaulted on the second and third claims raised in this Court (Doc. 12, p. 2). However, a United States Supreme Court decision, Harris v. Reed, 489 U.S. 255 (1989), discussed procedural default and stated that "a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case `clearly and expressly' states that its judgment rests on a state procedural bar." Harris, 489 U.S. at 263, citing Caldwell v. Mississippi, 472 U.S. 320, 327 (1985), quoting Michigan v. Long, 463 U.S. 1032, 1041 (1983). However, in Teague v. Lane, 489 U.S. 288 (1989), the U.S. Supreme Court stated that the rule of Harris is inapplicable where a habeas petitioner did not raise a particular claim in state courts so that they never had the opportunity to address the claim.
The evidence of record demonstrates that Montgomery raised neither of these two issues on appeal (Doc. 12, Exhibit B, p. 2). Likewise, Petitioner did not raise the issues in his Rule 32 petition (see Doc. 12, Exhibit H, pp. 12-23) or on appeal of the denial of that petition ( see Doc. 12, Exhibit I). The record supports Respondent's assertions: these claims are procedurally defaulted under Teague.
However, where the state courts have found claims of a petitioner to be procedurally defaulted and those courts have refused to address the merit of those claims, as is the case here, all chance of federal review is not precluded. The Eleventh Circuit Court of Appeals, in addressing the review of these claims, has stated the following:
Under
Wainwright v. Sykes, 433 U.S. 72,
97 S.Ct. 2497,
53 L.Ed.2d 594 (1977) and its progeny, noncompliance with a state procedural rule generally precludes federal habeas corpus review of all claims as to which noncompliance with the procedural rule is an adequate ground under state law to deny review. If a petitioner can demonstrate both cause for his noncompliance and actual prejudice resulting therefrom, however, a federal court can review his claims.
Booker v. Wainwright, 764 F.2d 1371, 1376 (11th Cir.) (citations omitted),
cert. denied,
474 U.S. 975 (1985). A claimant can also avoid the procedural default bar if it can be shown that a failure to consider the claims will result in a fundamental miscarriage of justice.
Engle v. Isaac, 456 U.S. 107, 135 (1982);
see also Murray v. Carrier, 477 U.S. 478, 496 (1986).
In this action, Petitioner has demonstrated neither cause nor prejudice for failing to raise these two claims in a timely manner in the State courts. Furthermore, Montgomery has not shown that this Court's failure to discuss the merit of these two claims will result in a fundamental miscarriage of justice being visited upon him. Therefore, the Court considers the second and third claims in this Court to be procedurally defaulted and the Court will not address their merit.
Petitioner first claims that his trial attorney rendered ineffective assistance. More specifically, Montgomery asserts that his attorney failed to: "seek out and interview witnesses, prepare jury charges, investigate the victim's relationship with the Petitioner, or interview and subpoena officers" (Doc. 1, Brief p. 8). 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.
Before proceeding to the particularized claims, the Court will set out the specific circumstances surrounding this claim. Montgomery was represented by local attorney Domingo Soto and was scheduled to go to trial on February 6, 1991, but he escaped and the trial was not held until over a year later (Docs. 12, Exhibit A, R. 3). On March 17, 1992, Soto received a call from Circuit Court Judge McRae's office, summoning him to court; when he appeared, he was informed that Montgomery had been captured and that his trial was set for that date ( id. at R. 4-5). In spite of Soto's protests that he had had no notice of his client's recapture or that the trial had been reset and that he was not prepared to represent his client, he was ordered to proceed to trial ( id. at R. 4-8).
Montgomery claims that his trial attorney failed to seek out and interview witnesses or interview and subpoena officers. The Court notes that Petitioner has not specified who should have been called to testify or what their testimony would have been. As such, Montgomery has failed to prove that he has been prejudiced by this alleged deficient performance.
Court is not finding that trial counsel was deficient. Because of the Court's finding regarding prejudice, a determination as to the deficiency of the attorney is not necessary.
Petitioner claims that his attorney failed to investigate the victim's relationship with the Petitioner. Montgomery does not state, however, what he would have expected his attorney to have learned by such an investigation. It is also noted that Petitioner himself could have provided this information. Again, Montgomery has failed to prove that he has been prejudiced by this alleged deficient performance.
Petitioners 5 only other claim of ineffective assistance is that his attorney failed to prepare jury charges. The Court notes that Montgomery has also raised the claim that the trial judge improperly denied written jury requests on the issue of identity. Because of the interconnectedness of these two claims, they will be discussed together. The Court notes, however, that "improper jury instructions can never be the basis for federal habeas corpus relief unless the instruction rendered the whole trial so unfair as to amount to a denial of due process." Jones v. Dugger, 888 F.2d 1340, 1343 (11th Cir. 1989) (citing Carrizales v. Wainwright, 699 F.2d 1053, 1055 (11th Cir. 1983)).
The Court notes that these two claims appear to be mutually inconsistent with one another. Nevertheless, it will address them both.
The record shows that Montgomery's attorney had his office prepare "the usual jury charges" to present to the judge, but that they did not arrive at the court in time to be properly submitted (Doc. 1, Soto Affidavit). Soto also attached copies of five charges on identity which he would have submitted to the judge had he been given the time. Id. Following the trial, the judge charged the jury on the issue of identity as follows:
admits that the third charge was substantially covered by the judge's instruction (Doc. 1 Brief, p. 16).
Now, ladies and gentlemen of the jury, in this case you've heard some questions about identity. I would tell you that if you are not certain beyond a reasonable doubt that this Defendant committed that offense, then you should acquit him. Probably, maybe, all of that is not sufficient. If you're not convinced beyond a reasonable doubt that he committed that offense, then he should be acquitted.
Doc. 12, Exhibit A, R. 57.
The evidence at trial came from one witness, the victim Zelda Harris, who testified that on a sunny Sunday morning she was robbed while working at the Shell Station at Broad and Government Streets (Doc. 12, Exhibit A, R. 25-47). Harris stated that she was talking on the phone when the Defendant, Jimmy Montgomery, came into the small office with a gun and ordered her to give him the money in the register. The victim testified that although Petitioner tried to disguise his face, the two of them had lived back door-to-back door for ten to twelve years, so she knew him well and was able to identify him as the robber. Harris also stated that two weeks later, Montgomery called her from jail, identified himself, admitted to being the robber, and begged her not to testify against him. The victim also testified that when she was describing her assailant to the police, who showed up within four minutes of the robbery, she first identified him as Johnny Montgomery, Jimmy's brother, but immediately corrected herself. Harris was certain that Jimmy Montgomery was the robber.
The Court finds no merit in Petitioner's claims. The evidence was overwhelming that Montgomery was the perpetrator of this crime. The Court finds that Petitioner has failed to demonstrate that he was prejudiced because his attorney did not get the opportunity to prepare jury charges on the issue of identity. Furthermore, the Court finds that Montgomery was not prejudiced because the trial judge refused certain jury charges. The Court finds that Petitioner has not demonstrated that he was denied due process in this matter. These claims are of no merit.
Petitioner has raised four different claims in bringing this action. Two of them are procedurally defaulted because they were not raised in the state courts in a timely manner. The other two 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 Charles Jones and against Petitioner Jimmy Lee Montgomery on all claims.