Bailey v. Nagle

• Decision Date: 20 April 1999
• Docket Number: No. 96-6770,96-6770
• Citation: 172 F.3d 1299
• Parties: 12 Fla. L. Weekly Fed. C 738 Henry C. BAILEY, Petitioner-Appellant, v. John E. NAGLE, Warden, Jeff Sessions, Attorney General for the State of Alabama, Respondents-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1299

172 F.3d 1299

12 Fla. L. Weekly Fed. C 738

Henry C. BAILEY, Petitioner-Appellant, v. John E. NAGLE, Warden, Jeff Sessions, Attorney General for the State of Alabama, Respondents-Appellees.

No. 96-6770.

United States Court of Appeals Eleventh Circuit.

April 20, 1999.

Kevin Butler, Fed. Pub. Defender, Middle District of Alabama Federal Defender Program, Inc., Montgomery, AL, for Petitioner-Appellant.

Stephen N. Dodd, Montgomery, AL, for Respondents-Appellees.

Appeal from the United States District Court for the Middle District of Alabama.

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

PER CURIAM:

Henry C. Bailey, an Alabama prisoner, appeals the district court's denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. Bailey was convicted in 1991 of one count of illegal distribution of crack cocaine. Pursuant to the Alabama Habitual Felony Offender Act ("AHFOA"), Ala.Code § 13A-5-9, the court enhanced his sentence to life imprisonment because of three prior drug-related convictions in 1982, and he is currently serving that term. Bailey filed the instant petition for a writ of habeas corpus in district court on February 25, 1995. ¹ A magistrate judge recommended that Bailey's petition be denied, supplementing that recommendation on June 21, 1996 to include consideration of two subsequent amendments to Bailey's petition, but adhering to the original recommendation of denial. The district court adopted the magistrate's judge's recommendation and ordered the petition dismissed on July 11, 1996. ²

This case has a long history. Prior to filing the instant petition, Bailey took a direct appeal of his conviction and on two separate occasions sought post-conviction relief pro se in the Alabama courts pursuant to Ala. R.Crim. P. 32. The Alabama Court of Criminal Appeals affirmed the direct appeal in a memorandum order, dated November 15, 1991, Bailey v. State, 595 So.2d 915 (Ala.Crim.App.1991) (Table), and the Alabama Supreme Court denied certiorari on February 21, 1992, Ex parte Bailey, 628 So.2d 1078 (Ala.1992) (Table). Bailey filed his first post-conviction Rule 32 petition on March 13, 1992 ("1992 Rule 32 Petition"), and the Alabama circuit court denied it on April 15, 1992, after an evidentiary hearing. Bailey did not appeal from this April 15, 1992 denial within the requisite time period, allegedly because he did not timely receive a copy of the court's order. When Bailey moved for an out-of-time appeal of the denial of the 1992 Rule 32 Petition, he was informed that the proper vehicle for obtaining such review under Alabama law was simply to file another Rule 32 petition. ³

Attempting to follow this instruction, Bailey filed additional pro se Rule 32 petitions on April 28, 1993 and June 24, 1993 ⁴ (collectively, "1993 Rule 32 Petitions"). The court denied the 1993 Rule 32 Petitions on February 11, 1994 under the authority of Ala. R.Crim. P. 32.2(b), which forbids successive Rule 32 appeals, except for good cause or to prevent a miscarriage of justice. The Alabama Court of Criminal Appeals affirmed the denial of the 1993 Rule 32 Petitions, adding as an additional ground for denial the fact that none of Bailey's contentions stated a claim, Ala. R.Crim. P. 32.7(d). Bailey v. State, 668 So.2d 926 (Ala.Crim.App.1994) (Table). ⁵

Because the issue of procedural default is paramount in this case, it is important to identify precisely what issues were raised in the various Alabama proceedings and when. On direct appeal, Bailey raised the following issues: (1) whether he had been denied a speedy trial; and (2) whether the three 1982 convictions used as predicates for the sentence enhancement under the AHFOA should have been treated as a single conviction due to their closeness in time. (Neither of these grounds are relevant to the instant case.)

In the 1992 Rule 32 Petition, Bailey raised the following issues: (1) whether trial counsel was ineffective for failing to object to the racial composition of his jury; and (2) whether trial counsel was ineffective for failing to object to the AHFOA enhancement on the ground that the state had insufficiently proven the voluntariness of his guilty pleas in the three 1982 predicate convictions.

In the 1993 Rule 32 Petitions, Bailey raised the following issues: (1) a chain-of-custody problem with cocaine evidence used to convict him; (2) ineffective assistance of trial counsel for failure to investigate the chain-of-custody; (3) police alteration of evidence; and (4) that his failure to appeal the 1992 Rule 32 Petition in time resulted from lack of timely receipt of the Rule 32 court's order.

In this case, Bailey's petition (incorporating amendments filed on November 21, 1995 and February 26, 1996) alleges the following grounds for relief: (1) the prosecution failed to prove an unbroken chain-of-custody of crucial evidence; (2) ineffective assistance of appellate counsel for (a) not investigating or objecting to the admission of the evidence allegedly tainted by chain-of-custody problems, (b) failing to raise the chain-of-custody issue on direct appeal, and (c) not allowing him to testify concerning the chain-of-custody; (3) alleged government alteration of evidence; (4) the fact that his failure to appeal the denial of the 1992 Rule 32 Petition was not his fault; and (5) the prior convictions used to enhance his sentence under the AHFOA were not valid for enhancement purposes due to (a) the fact that they were drug-related, (b) the fact that his guilty please were uncounseled, and (c) the fact that no "Ireland forms" showing the voluntariness of his predicate convictions were executed at the time of those convictions.

The magistrate judge and district court concluded that Bailey's claims regarding the improper enhancement of his sentence under the AHFOA and ineffective assistance of trial counsel were procedurally barred because they had never been presented properly to any state court. They did not articulate why they viewed these claims as never properly presented. Whether Bailey is procedurally barred from raising particular claims is a mixed question of law and fact that we review de novo. Agan v. Vaughn, 119 F.3d 1538, 1541 (11th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 1305, 140 L.Ed.2d 470 (1998).

A state habeas corpus petitioner who fails to raise his federal claims properly in state court is procedurally barred from pursuing the same claim in federal court absent a showing of cause for and actual prejudice from the default. Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Such procedural default can arise in two ways. First, where the state court correctly applies a procedural default principle of state law to arrive at the conclusion that the petitioner's federal claims are barred, Sykes requires the federal court to respect the state court's decision. Atkins v. Singletary, 965 F.2d 952, 956 (11th Cir.1992), cert. denied, 515 U.S. 1165, 115 S.Ct. 2624, 132 L.Ed.2d 865 (1995); Meagher v. Dugger, 861 F.2d 1242, 1245 (11th Cir.1988). Second, if the petitioner simply never raised a claim in state court, and it is obvious that the unexhausted claim would now be procedurally barred due to a state-law procedural default, the federal court may foreclose the petitioner's filing in state court; the exhaustion requirement and procedural default principles combine to mandate dismissal. Snowden v. Singletary, 135 F.3d 732, 737 (11th Cir.), cert. denied, --- U.S. ----, 119 S.Ct. 405, 142 L.Ed.2d 329 (1998); see also 28 U.S.C. § 2254(b)(1)(A)(1994)(pre-AEDPA) ("An application for writ of habeas corpus ... shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State....").

Our analytic task first involves dividing the claims Bailey makes in this petition into two categories: (1) those that were actually presented to the Alabama courts, and (2) those that were not presented to the Alabama courts. As to the former, we ask whether the last state court rendering judgment clearly and expressly stated that its judgment rested on a procedural bar, i.e., an adequate and independent state ground. Harris v. Reed, 489 U.S. 255, 263, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). As to the latter, we ask whether any attempt Bailey now makes to exhaust his claims in the Alabama courts would be futile under Alabama procedural default doctrine. Snowden, 135 F.3d at 737 ("Federal courts may apply state rules about procedural bars to conclude that further attempts at exhaustion would be futile.").

A. CLAIMS ACTUALLY RAISED IN STATE COURT

The first category includes Bailey's claims regarding (1) the argument that the prosecution failed to prove an unbroken chain-of-custody of the cocaine evidence; (2) ineffective assistance of counsel for failing to investigate the chain-of-custody issue; ⁶ (3) alleged police alteration of evidence; and (4) the fact that his failure to appeal the denial of the 1992 Rule 32 Petition was not his fault, because all of these claims were raised in the 1993 Rule 32 Petitions. The first category can ignore Bailey's direct appeal because no overlap exists at all between the claims made in this case and the claims made in those proceedings. Also, the first category can ignore the 1992 Rule 32 Petition because Bailey's failure to appeal the denial of that petition meant that the claims were never exhausted. See 28 U.S.C. § 2254(c) ("An applicant shall not be deemed to have exhausted the remedies available in the courts of the State ... if he has the right under the law of the State to raise, by any available procedure, the question presented."); Coleman v. Thompson, 501 U.S. 722, 740, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (failure to take timely appeal of state postconviction court's denial of petition constituted procedural default); Bufalino v. Reno, 613 F.2d 568, 570 (5th Cir.1980) ⁷ ("[T]he...