Bailey v. Nagle

Before HATCHETT, Chief Judge, CARNES, *, Circuit Judge, and FARRIS Senior Circuit Judge.

* Farris, Honorable Jerome Senior U.S. Circuit nation. Circuit, Judge for the Ninth sitting by desig- (Table), and (Ala.Crim.App.1991) So.2d 915 CURIAM: PER Court denied certio Supreme the Alabama Bailey, prisoner, an Alabama Henry C. 21, 1992, Ex Bai parte rari on denial of court’s the district appeals (Ala.1992) (Table). So.2d 1078 ley, 628 a writ of post-conviction Bailey filed his first in Bailey was convicted § 2254. U.S.C. 28 (“1992 13, Rule March 1992 32 on petition of illegal of distribution one count 1991 of Petition”), circuit and the Alabama 32 to the Alabama Pursuant crack cocaine. 1992, 15, it after an April court denied on (“AHFOA”), Offender Act Felony Habitual Bailey appeal evidentiary hearing. did 13A-5-9, the court enhanced Ala.Code 15, 1992 denial within April from this imprisonment life to his sentence because he period, allegedly time requisite convictions in prior drug-related three of of .the court’s timely copy receive a did 1982, currently serving he is and out-of- Bailey moved for an order. When petition for filed the instant Bailey term. of the 1992 Rule appeal time of the denial court on corpus in district a writ of Petition, prop 32 he was informed 25, magistrate judge A 1995.1 February review under obtaining for such er vehicle be de Bailey’s petition recommended simply law was to file another recommendation nied, supplementing petition.3 Rule 32 21, consideration to include 1996 on June instruction, to follow this Attempting Bailey’s amendments subsequent two pro peti Rule 32 Bailey filed additional se original rec adhering to petition, 24, 19934 April on 1993 and June tions The district of denial. ommendation Petitions”). (collectively, “1993 recom judge’s magistrate’s adopted Rule 32 Peti court denied the 1993 dis ordered mendation the au 1994 under tions on 11, 1996.2 July missed 32.2(b), which P. thority of Ala. R.Crim. history. Prior long has a This case except 32 appeals, forbids successive Rule Bailey took a petition, filing the instant prevent for cause or and on two of his conviction appeal direct of Criminal The Alabama Court justice. sought post-conviction occasions separate of the 1993 affirmed the denial Appeals courts pursu- the Alabama pro Petitions, se in relief an additional adding as Rule The Alabama R.Crim. P. 32. none of ant to Ala. the fact that for denial claim, affirmed the Ala. Appeals contentions stated Court of Criminal 32.7(d). State, Bailey v. dat- P. in a memorandum R.Crim. appeal direct (Table).5 State, (Ala.Crim.App.1994) 15, 1991, 595 So.2d Bailey November ed denied; already the court April that it petition was filed before 1. Because aas purported amendment construed and Effective the Anti-Terrorism new, ("AEDPA”), petition and denied it separate Rule 32 Penalty Pub.L. No. Act Death (1996), 104-132, gov- June 1992. does not Stat. 1214 appeal. ern explained petition simply April 28 4. The allegedly excused circumstances previously before this court case was 2. This of the 1992 Rule the denial analyzing sitting purposes en banc for Petition, any substan- but did not contain a district court has of whether issue limited underlying relief from the tive appealability authority grant a certificate States, added sub- June 24 conviction. The v. United the AEDPA. Hunter under Cir.1996) (en banc), Although two docu- grounds. stantive cert F.3d 1565 styled petitions, separate as two ments (1997), apparently construed by Alabama courts part Lindh overruled L.Ed.2d merely June 24 an amendment Murphy, 521 togeth- petition, them litigated and treated The issue L.Ed.2d same. single petition. as a do the er appeal has no relevance issues previous the Court. presently before actually 5. filed a notice July apparently 1993 because he tried to the 1992 Bailey apparently amend impression re- judge's from the Rule 32 Petition on June unaware (4) the issue of procedural Because the fact that his failure to appeal the paramount important is denial of the 1992 Rule 32 Petition was not identify precisely fault; what issues were raised his the prior convictions proceedings in the various Alabama used to enhance his sentence under the when. appeal, Bailey On direct raised the AHFOA were not valid for enhancement he following issues: had been (a) purposes due to the fact that trial; a speedy denied and whether the (b) drug-related, the fact that guilty three 1982 convictions used as predicates uncounseled, (c) please were the fact for the sentence enhancement under the that no “Ireland forms” showing the volun- AHFOA should been treated as a tariness of his predicate convictions were single conviction due to their closeness in executed at the time of those convictions. (Neither time. of these are rele- magistrate The judge and district case.) vant to the instant court concluded that Bailey’s claims re Petition, In the Bailey 1992 Rule garding improper enhancement of his (1) following raised the issues: sentence under the AHFOA and ineffec trial for failing to tive assistance of trial counsel proce object to racial composition jury; of his durally barred because had never (2) and whether trial counsel was ineffec- presented properly to object tive for to failing to the AHFOA They court.. did not why they articulate enhancement on the that the state viewed these claims as properly pre insufficiently proven the voluntariness Bailey sented. Whether is procedurally guilty pleas predi- in the three 1982 raising barred from particular claims is a cate convictions. question mixed of law and fact that we Petitions, In the 1993 Rule 32 Bailey review de Agan Vaughn, novo. v. (1) following raised the issues: a chain-of- (11th 1538, Cir.1997), F.3d cert. de custody problem with cocaine evidence - nied, -, 1305, 118 S.Ct. (2) him; used to convict ineffective assis- (1998). L.Ed.2d 470 tance of trial counsel for to investi- A state corpus (3) petitioner gate chain-of-custody; police altera- who fails to (4) raise his federal evidence; proper claims tion of and that his failure to ly in state court procedurally appeal the 1992 Rule 32 Petition barred in time from pursuing resulted from lack the same timely receipt claim in of the federal Rule 32 court’s order. court absent a showing cause for and actual from the default. Wain Bailey’s petition (incorpo- wright Sykes, rating amendments filed on November 53 L.Ed.2d 594 Such proce 1995 and alleges the dural default First, can arise in two ways. (1) following grounds for relief: prose- where the state court correctly applies a cution failed to prove unbroken chain- procedural default principle of state (2) law to of-custody evidence; of crucial ineffec- arrive at the conclusion that (a) petition tive assistance of appellate counsel for barred, er’s federal claims are Sykes investigating objecting to the re admis- quires the sion of federal allegedly the evidence by respect tainted (b) chain-of-custody state court’s problems, decision. Single Atkins v. failing (11th tary, raise the chain-of-custody issue on 965 F.2d Cir.1992), direct (c) denied, appeal, allowing and him cert. testify 115 concerning (3) the chain-of-custody; (1995); al- L.Ed.2d 865 Meagher Dug leged government evidence; alteration of ger, Cir.1988). 861 F.2d hearing July marks at a that his re-filed his once the 1993 Rule 32 being claims were denied. The Alabama actually Petitions were denied in a written Appeals Court of Criminal dismissed this in- order.

terlocutory appeal premature, IN ACTUALLY RAISED A. CLAIMS simply never Second, if the STATE COURT it is a claim the unexhausted obvious includes category a state- due to barred argument be regarding now default, prove an unbroken the federal failed prosecution law evidence; chain-of-custody of the cocaine filing petitioner’s foreclose may for fail of counsel ineffective assistance requirement court; the exhaustion chain-of-custody is investigate ing combine principles 6 (3) sue; of evi alleged police alteration Single Snowden dismissal. to mandate dence; fact that his failure (11th Cir.), cert. 732, 737 tary, 135 the 1992 Rule 32 the denial of — U.S. —, fault, because all of was not his (1998); also 28 U.S.C. see L.Ed.2d claims were raised in the 1993 these (“An 2254(b)(1)(A)(1994)(pre-AEDPA) category ig can Petitions. The first ... of habeas for writ application no ov appeal because nore direct appears unless granted not be shall made all the claims erlap exists at between the remedies exhausted applicant has in those claims made in this case and the ”). the State.... in the courts available Also, can category the first proceedings. the 32 Petition ignore 1992 Rule dividing involves first analytic task Our of that failure to the denial petition in this makes claims the the claims were meant that petition that were those categories: two into (“An 2254(c) See 28 U.S.C. exhausted. courts, to the actually presented have ex deemed to shall not be applicant presented that were those in the available the remedies hausted former, the As to Alabama courts. the right ... he has if of the State courts rendering court the last state ask whether raise, by any State to the law of the expressly clearly and stated judgment present question procedure, available bar, aon judgment rested its ed.”); Thompson, 501 Coleman state independent i.e., adequate an L.Ed.2d 640 Reed, 489 U.S. Harris ground. (failure of timely appeal take 103 L.Ed.2d 263, 109 S.Ct. peti of court’s denial postconviction state latter, we ask whether (1989). As to the default); Bu constituted tion exhaust makes to Bailey now attempt (5th Reno, F.2d falino would be Alabama courts claims Cir.1980)7 (“[T]he re doctrine exhaustion under Alabama futile claim must the federal quires Snowden, at 737 F.3d of highest to the presented doctrine. been (“Federal post- state rules may apply State, review or in courts either on direct attack.”). that fur treat Even if we bars to conclude conviction about as fu in the 1992 would be claims exhaustion attempts at ther on Bai- lack of fault to the due exhausted tile.”). Foot previously.” has not evaluated category does not include 6. The (11th Singletary, 978 v.man counsel other two ineffective-assistance-of 1992). two other consider will claims, Cir. raise the failure to regarding the analy using the ineffective-assistance appeal and not al- chain-of-custody on issue state in were never raised for claims that sis regarding the chain- testify lowing Bailey to courts. were nev- particular issues of-custody. Those courts. While presented er Prichard, City 661 F.2d of counsel Bonner v. assistance In related are (en banc), adopted chain-of-custody this Court Cir. investigate the for failure evidence, binding precedent all of the decisions raised in which was of the cocaine prior Fifth Circuit handed down may not former petitioner "a habeas 30, 1981. September on close business assistance of ineffective present instances at 1209. the state Id. his federal ley’s part timely for not appealing, 32.7(d), no ov- appellant A.R.Cr.P. The erlap exists between those claims and the did not attorney show that his inef- was claims made in this petition.8 according fective to the standards of Washington, Strickland v. We are satisfied that the Alabama 80 L.Ed.2d 674 courts denied the 1993 Rule 32 Petition on Bailey’s claims that were Whether adequate independent state proce 1993 Rule Petitions now dural ground gen successiveness. See barred, proeedurally turns interpreta- on 32.2(b) (“A erally Ala. R.Crim. P. second tion of the above language. or successive [Rule 32] differ Reed, ent In grounds Harris v. shall be denied unless the (1989), petitioner shows good both that United cause ex States Su- why ists preme new was were confronted with the situ- not known or ation of a could not have ascer section peti- tained through reasonable diligence tioner whose when ineffective-assistance claims heard, the first in a post-conviction and that fail relief proceeding ure to entertain the petition will result in been rejected by a had the state appellate justice.”). its unpublished opinion. That the Rule 32 court found opinion stated that petitioner that “[t]he Petitioner has failed to show waived those claims through present- why cause the grounds raised in the ing them (i.e., direct a state-law instant known or default), could procedural proceeded to ana- not have been ascertained through reason lyze the claims on the merits reject diligence able at the time his first and them. The question was whether the fed- petitions second Further, were heard. eral court in the section 2254 proceeding Petitioner has failed to show that failure to should refuse review the claims because entertain this will result in the state default rules barred them justice.” However, the Ala due the ambiguity in the state appellate bama Court of Appeals Criminal compli court’s decision about the ground it was cated slightly, by matters stating in its relying upon. The Court held that “[a] November 1994 memorandum affir- procedural default does not bar consider- mance of the Rule 32 trial court’s ation of a federal claim ... on habeas The appellant’s argument, that the trial review unless the last state court render- court erred in denying his Rule ing a judgment in the clearly case and

A.R.Cr.P. as successive expressly that judgment states its rests on it was a vehicle for an appeal out-of-time a bar.” Id. at original his petition, (internal is without merit. quotations omitted). Summary disposition of the petition Harris, was the appellate state court had “laid proper on another ground, as the foundation” for a holding based on appellant the failed to state a claim. noting waiver petitioner’s failure to argue 8. did in the 1992 tary. Rule Peti- An ineffective-assistance claim is ana tion that his counsel rendered ineffective as- lytically distinct from the substantive claim failing sistance object sufficiency Therefore, underlying it. whether or not Bai proof of the State’s guilty pleas that ley exhausted his ineffective-assistance claim predicates convictions as used regarding the voluntariness predicate of his voluntary. AHFOA were petition, convictions, In this he his current substantive claim was (amendment a makes similar dated No- presented not to the Alabama courts. Cf. 25, 1991), vember stripped of the ineffective- Levasseur v. Pepe, (1st 70 F.3d Cir. cloak, assistance raising the issue "whether (finding prior that court’s treatment of priors used bring [to] the accused under petitioner's underlying substantive claims in provision of the statute habitual offender the context of ruling on his ineffective assis forms,” must have consisted of Ireland and tance claim did preserve not substantive implying that the to use such forms claims themselves for review on collateral at tack). predicate rendered the involun- convictions (1) argument claims are these Again, but never appeal, on direct his claims raise an prove failed prosecution its reliance that expressly clearly stating incriminating chain-of-custody of S.Ct. at unbroken Id. ground. on that review assistance evidence; federal Consequently, the chain- investigate failing to precluded. issue; alteration police of-custody Reed, must we deter v. Harris Under that Bai- evidence; argument Court Crimi the Alabama mine of the denial ley’s failure independent opinion rested Appeals’ nal his fault. was not grounds. state adequate although the that believe IN STATE NOT RAISED B. CLAIMS have been could Appeals Criminal COURT proce rested opinion its explicit, more as a claim to state and failure in this other claims dural fits and therefore courts the Alabama alternative presented were in footnote reserved exception Petitions, nor in Bai within the 1993 in Har opinion Court’s Supreme of the Peti or 1992 Rule ley’s direct fear reach need court “[A] ris: claims those until to raise tion. Failure claim in federal of a the merits ing the state Bailey deprived now means very def Through its holding. alternative to hear first opportunity of “the courts independent inition, adequate in a feder to be vindicated sought claim[s] court the federal requires doctrine Connor, Picard proceeding.” al habeas a sufficient that is holding to honor 30 L.Ed.2d even judgment, state court’s for the basis newly made these As to on federal relies also the state when principle familiar claims, apply the 10, 109 264 n. Harris, law.” unexhausted treat may courts federal also original). See (emphasis defaulted, even ab procedurally as claims Zant, 1549-51 Alderman to that determination a state sent Cir.) (where Georgia habeas law from state effect, clear if it is claims petitioner’s found be at exhaustion attempts future successive, barred 135 F.3d Singletary, futile. Snowden lacked merit noted also - (11th Cir.), cert. 732, 737 “[tjhis evidence, ruling in on the based 329 405, L.Ed.2d 142 -, S.Ct. 119 ... of effect the have did alternative of disposes readily (1998). precept This by the determination clear blurring the remaining ineffective-assistance- Bailey’s that al court the corpus] habeas [Georgia claim con claims, as' his as well of-counsel barred”), cert. was legation con predicate the validity of cerning the 673, 130 115 S.Ct. 513 Ala of the ANFOA. purposes victions (1994). of al presence The L.Ed.2d 606 petition a successive clear that law is bama appellate in the state holdings ternative the be denied unless “shall case from this distinguishes opinion court’s why the exists cause both shows Harrelson, Thomas or not known grounds were or held new Cir.1991), where 1531-32 through ascertained not have bar” where could is no procedural “[t]here petition the when diligence Appeals, reasonable of Criminal “the the to entertain heard, and that to consider last the jus the issue a [raised result in the merits will addressed 32.2(b). has Bailey P. § Ala. R.Crim. petition].” the tice.” remaining ineffec why his cause no shown was correct Thus, the district his claims and tive-assistance-of-counsel those of hearing from precluded it was been raised claim could AHFOA pro- declared had been Bailey’s claims Ala The Rule 32 Petition. the the during state-court cedurally defaulted court’s denial of circuit 32 Petitions. bama litigation on successiveness of that is irrelevant. petitions Rule 32 denial further provides support in 1994 proceedings 1993 Rule 32 Peti- newly case that the claims made tion, found claims made 32.2(b). Further, fail Rule similarly Rule 32 Petitions were succes- time in present at the brought if sive, they would be made no less succes- two-year statute limitations Bailey sive if granted had been leave to file (two these unexhausted claims would bar appeal an out-of-time of the denial of the years the mandate issued in the di- after 1992 Rule 32 Petition. Claims are succes- conviction). Bailey’s rect See appeal been, sive when could have but were 32.2(c)(1). P. Ala. R.Crim. not, in an petition. earlier See Ala. 32.2(b). R.Crim. P. The de- TO C. EXCEPTIONS PROCEDURAL fault that is central to this ease is not DEFAULT Bailey’s failure to denial of the petitioner can escape A habeas Petition, 1992 Rule 32 but rather his fail- doctrine either default presently ure to raise the made claims in cause for the default through showing n the 1992 Rule 32 Petition. Carrier, Murray v. 477 U.S. prejudice, Bailey Consequently, has not shown the L.Ed.2d 397 requisite cause to excuse his (1986), a establishing “fundamental mis default. Nor has a established Delo, justice,” Schlup carriage “fundamental miscarriage justice.” 298, 324-27, That alternative method of escaping proce- (1995). Bailey has not shown L.Ed.2d 808 requires dural colorable showing applying cause for not innocence, of actual which Bailey has inability bar. He that his to effect Delo, made. Schlup See 14,1992 timely denial appeal of 324-27, Petition, S.Ct. 130 L.Ed.2d 808 of the 1992 due to his reasons, For foregoing circuit receiving notice of the court’s excusing district court’s pro constitutes cause his dismissal of peti- argument cedural default. This is merit- tion for a writ of is AF- less. The is to most could do excuse FIRMED. exhaust claims failure to made in AFFIRMED. (that is,

the 1992 Rule failure to the denial of the 1992 CARNES, Judge, Circuit concurring Rule 32 Petition to the state court of last specially: Alabama, 2254(c); § resort in see 28 U.S.C. I concur in this Court’s affirmance of the 509, 516-18, Rose v. Lundy, 455 U.S. district court’s denial of the 28 U.S.C. (1982)), 71 L.Ed.2d 379 and dismissal of the case thereby claims. only resurrect those with on procedural bar grounds, claims made in the 1992 Rule 32 Petition agree and I with almost all of the Court’s concerned ineffective assistance of discussion. The join reason I cannot in objecting counsel for not to the racial com the opinion without reservation is that position Bailey’s jury, some of its discussion seems to me to assistance of for not objecting confuse doctrines of exhaustion of state sufficiency proof of the State’s and procedural remedies bar. guilty pleas the predicate in convictions used to sentence AHFOA course, Of those two doctrines are relat- voluntary. Bailey apparently were has They ed. are related in the sense that if it as he did not abandoned these clams raise for a petitioner is futile to return to state them in petition. this previous procedural court because defaults relief, there will bar futility As not made in the is an far as claims concerned, “exception” exhaustion of state rem- for his failure to appeal requirement. cause existed edies futility call the case have been re- The result would to the exhaustion “exception” rule recog- reality just it is but in the same if there were no exhaustion quirement, bar is a when there nition that state remedies doctrine. court from a state prevent would claim, if that even relief on

granting meritorious, there is no effective is

claim petitioner to ex- remedy left for case, have in this That is what we

haust. applica- is not doctrine

so the exhaustion

ble. applica- the exhaustion doctrine

If ble, would be dismissal of result proper America, UNITED STATES to re- in order the case without Plaintiff-Appellee, by pur- to seek relief quire petitioner court remedies. remaining state suing his prejudice, be without would dismissal HUNTER, Michael Jon Defendant- were unsuccessful petitioner because if Appellant. remedies, he could return his state with No. 97-6903. claims. Instead of court with his federal prejudice, dismissing the case without Appeals, United States Court of the habe- in this case denied district Eleventh Circuit. the case with and dismissed is the correct disposition That prejudice. has no effective petitioner where a

one exhaust and the remedies left ei- concludes his claims are

district or, procedur- meritless as in

ther

ally barred. opinion this Court’s blurs

Unfortunately, confuses the between and

the distinction exhaus- bar and

doctrines Consider, the state- example,

tion. petitioner simply that: “if the

ment in state is

raised a claim that the unexhausted

obvious barred due to a state

now be default, the federal court

law filing in

may petitioner’s foreclose the court; requirement the exhaustion principles combine Op. at 1303. That dismissal.”

to mandate opinion other statements result in this case is imply that the

least exhaustion require- on the part

based has no It not. The

ment. remedies left to ex- state court

effective all

haust. His claims another state court

defaulted one accordingly, they pro-

proceeding, consideration fed- from

cedurally barred bar is a This

eral court. remedies of state case.

not an exhaustion

Case Details

Case Name: Bailey v. Nagle

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Apr 20, 1999

Citation: 172 F.3d 1299

Docket Number: 96-6770

Court Abbreviation: 11th Cir.