Civil Action 98-1281-RV-M.United States District Court, S.D. Alabama, Southern Division
May 30, 2000.
REPORT AND RECOMMENDATION
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 as an abuse of the writ under Rule 9(b), and that judgment be entered in favor of Respondent C.E. Boutwell and against Petitioner Aubrey Lucy on all claims.
Petitioner was convicted of murder in the Circuit Court of Marengo County on January 11, 1983 for which he received a sentence of twenty years in the state penitentiary. Petitioner did not appeal either the conviction or sentence (see Doc. 8, p. 3; see also Doc. 22, p. 1). Petitioner filed a complaint with this Court on December 23, 1998, raising the following claims: (1) Petitioner was arrested with an invalid warrant; (2) the indictment was defective; (3) his confession was coerced; (4) his guilty plea was not knowingly and intelligently made; (5) there was insufficient evidence to convict him; and (6) his attorney rendered ineffective assistance of counsel (Docs. 1, 8, 23, 25, 27, 28).
Respondent in this action has claimed that Petitioner has abused the writ of habeas corpus under Rule 9(b) of the Rules Governing Habeas Corpus Cases under Section 2254. That rule states as follows:
A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ.
Rule 9(b) of the Rules Governing Habeas Corpus Cases under Section 2254. When discussing this rule, the Eleventh Circuit Court of Appeals noted that’ “[o]nce abuse of the writ has been pleaded by the state, the burden shifts to the petitioner to prove that his failure to raise the issue in his first petition was not the result of intentional withholding or inexcusable neglect.” Ritter v. Thigpen, 828 F.2d 662, 664 (11th Cir. 1987) (citations omitted).
Instruction for analyzing such claims has been given by the U.S. Supreme Court in the decision McCleskey v. Zant, 499 U.S. 467 (1991). Specifically, the Court held that “the same standard used to determine whether to excuse state procedural defaults should govern the determination of inexcusable neglect in the abuse of the writ context.” McCleskey, 499 U.S. at 490. The two — pronged review of procedural default is cause and prejudice. See Wainwright v. Sykes, 433 U.S. 72. (1977) and progeny. The McCleskey Court, in discussing this analysis, directed the examining courts to look at the petitioner’s conduct: “the question is whether petitioner possessed, or by reasonable means could have obtained, a sufficient basis to allege a claim in the first petition and pursue the matter through the habeas process.” McCleskey, 499 U.S. at 498. The petitioner is required to conduct a diligent and reasonable investigation. Id. Furthermore, a district court is not obligated to conduct an evidentiary hearing so that the petitioner can satisfy his burden if the court determines that the cause and prejudice standard cannot be satisfied as a matter of law. Id. at 494.
Lucy has previously filed three habeas complaints in this Court. In the first action, Petitioner raised two claims: (1) That his plea of guilt was unlawfully induced or made involuntary because of his lack of understanding as to the nature of the charge and possible consequences of his plea; and (2) his trial counsel rendered ineffective assistance of counsel because he failed to adequately prepare and investigate the case. Lucy v. Davis, C.A. 86 — 0050-T-C (S.D. Ala. September 26, 1988) see Doc. 22, Exhibit A. In that action, the Magistrate Judge determined that neither claim had merit and recommended that it be dismissed (id.). The recommendation was adopted as the opinion of the Court by United States Senior District Judge Daniel H. Thomas and judgment was entered accordingly (Doc. 22, Exhibit B).
In his second habeas complaint, Petitioner raised three claims: (1) That his conviction was reached by use of evidence obtained pursuant to an unlawful arrest in that he was arrested outside the jurisdiction of the arresting officers without an arrest warrant; (2) the arrest warrant that was issued was done so without probable cause; and (3) newly — discovered material facts existed which required that the sentence be vacated. Lucy v. Todd, C.A. 91-0692 — BH — C (S.D. Ala. June 19, 1992); see Doc. 22, Exhibit D. The Magistrate Judge determined that the second complaint constituted an abuse of the writ and recommended that the action be dismissed under Rule 9(b) (Id.). That recommendation was adopted as the opinion of the Court, following a de novo review, by United States District Judge W. Brevard Hand and an order of judgment was entered accordingly (Doc. 22, Exhibit C). Petitioner appealed the decision but the Eleventh Circuit Court of Appeals denied Lucy’s application for a certificate of probable cause (See report and recommendation, p. 4, in Lucy v. Cooke, C.A. 94-0260 — AH-M (S.D. Ala. November 9, 1994), entered on October 31, 1994).
In his third petition, Lucy raised five claims: (1) That the indictment against him was invalid; (2) his plea was not voluntarily made and was not made with knowledge; (3) his conviction was based on inaccurate and invalid information; (4) the trial court did not have jurisdiction to try and convict him because he had been illegally arrested and detained; and (5) he was denied a fair sentence procedure. Lucy v. Cooke, C.A. 94-0260-AH-M (S.D. Ala. November 9, 1994); see Doc. 22, Exhibit E. The Magistrate Judge determined that the third complaint constituted an abuse of the writ and recommended that it be dismissed under Rule 9(b)(id.). That recommendation was adopted as the opinion of the Court, following a de novo review, by United States District Judge Alex T. Howard and an order of judgment was entered accordingly (Doc. 22, Exhibit F).
It is therefore recommended that all claims be dismissed under Rule 9(b) as Petitioner has either raised them before — — or had the opportunity to have raised them — — in his previous habeas actions.[1] The claims which were previously raised would be barred in this action under the doctrine of res judicata.
With regard to the claims which were not raised previously, the Court finds that Petitioner has, at the very least, inexcusably neglected to raise them in his first petition. Lucy has failed to demonstrate cause and prejudice for this failure. In reaching this conclusion, the Court is mindful of the holding of Gunn v. Newsome, 881 F.2d 949, 961 — 62 (11th Cir.), cert. denied, 493 U.S. 993 (1989), that pro se petitioners are not to be held to the same standard as counseled petitioners. It is this Court’s opinion that Petitioner had reasonable opportunity to have familiarized himself with these two claims and to have pursued them in his original petition. Furthermore, it is the opinion of the undersigned, after reviewing much of the record from the previous habeas petitions, that a fundamental miscarriage of justice will not be visited upon Petitioner if the merit of these claims is not addressed. See Murray v. Carrier, 477 U.S. 478
(1986).
The Court also notes that Petitioner has filed a Writ of Mandamus, requesting this Court to order Marengo County Circuit Court Judge Eddie Hardaway, Jr. to issue a ruling on a habeas petition filed there by Lucy (Doc. 32). Petitioner should direct such requests to the Alabama Supreme Court as this is not the appropriate forum for such. Petitioner’s request is DENIED.
Therefore, it is recommended that this petition be denied, that this action be dismissed as an abuse of the writ under Rule 9(b), and that judgment be entered in favor of Respondent C.E. Boutwell and against Petitioner Aubrey Lucy on all claims.