Bass v. Morgan
| Docket Number | Civil Action 1:20-00394-CG-N |
| Decision Date | 30 August 2023 |
| Parties | TERRY NATHAN BASS AIS #00297484 Petitioner v. PHYLLIS MORGAN[1] Warden III Donaldson Correctional Facility Respondent |
| Court | U.S. District Court — Southern District of Alabama |
REPORT AND RECOMMENDATION
Petitioner Terry Nathan Bass (“Bass”), an Alabama prisoner proceeding without counsel (pro se) initiated this action by filing a petition for a writ of habeas corpus under 28 U.S.C. § 2254 (Doc. 1). The assigned District Judge referred Bass's habeas petition to the undersigned Magistrate Judge for appropriate action. See S.D. Ala. GenLR 72(b). Under S.D. Ala. GenLR 72(a)(2)(R), the undersigned is authorized to require responses, issue orders to show cause and any other orders necessary to develop a complete record, and to prepare a report and recommendation to the District Judge as to appropriate disposition of the petition, in accordance with 28 U.S.C. § 636(b)(1) and Rules 8(b) and 10 of the Rules Governing Section 2254 Cases in the United States District Courts.
Pursuant to this authority, the undersigned has thoroughly reviewed Bass's petition and supplement, the Respondent's answer, the record, and all other filings in this action and recommends that the petition be dismissed as procedurally defaulted because Bass did not first exhaust any of his habeas claims in state court, and he is now procedurally precluded from doing so.
Bass was convicted of four sex offenses by a jury in the Circuit Court of Baldwin County, Alabama (Case Nos. CC13-2292 through -2295). (Doc. 12-11, p. 1). He was sentenced to 99 years' imprisonment on each of the first three counts, and 20 years' imprisonment on the fourth count, with all sentences to run consecutively. (Id.). Bass filed a notice of appeal and requested appointment of appellate counsel. (Doc. 12-2, p. 10).
On direct appeal to the Alabama Court of Criminal Appeals (“ACCA”), Bass's court-appointed counsel filed a brief and a motion to withdraw from representation pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967),[2] asserting he had found no meritorious issues for the ACCA to review on appeal. (Doc. 12-8). The ACCA permitted Bass's appointed counsel to withdraw and gave Bass permission to file pro se a list of issues he wanted the ACCA to review. (Doc. 12-9). In response, Bass filed a pro se brief with the ACCA presenting several issues for consideration. (Doc. 12-10).
The ACCA categorized most of Bass's issues as ineffective-assistance-of-counsel claims, which the ACCA found were not properly preserved for appellate review because they were not first raised in the trial court. (Doc. 12-11, p. 2). The ACCA also rejected as unpreserved Bass's argument that jurors A.H. and T.H. should not have been allowed to serve on his jury due to certain voir dire responses, as Bass's trial counsel did not object to either juror. (Doc. 12-11, pp. 2-3). The ACCA rejected Bass's remaining arguments on the merits and affirmed his convictions. (Doc. 12-11, pp. 3-4).
Bass filed a pro se application for rehearing, which the ACCA summarily overruled. (Doc. 12-12; Doc. 12-13). Bass then petitioned the Alabama Supreme Court for a writ of certiorari, and that petition was denied without opinion. (Doc. 12-14; Doc. 12-15). A certificate of judgment was issued on October 16, 2015. (Doc. 12-12, p. 1).
Having found no success in the ACCA, Bass petitioned the trial court in October 2016 for post-conviction relief under Alabama Rule of Civil Procedure 32 (“Rule 32 Petition”). (Doc. 12-16, pp. 6-19). After twice returning the case to the trial court for additional proceedings, the ACCA ultimately affirmed the trial court's denial of relief under Alabama Rule 32 by memorandum opinion issued August 9, 2019.
(Doc. 12-29). In that decision, the ACCA addressed, and rejected on the merits, Bass's argument that his trial counsel was ineffective for failing to challenge jurors A.H., T.H., and S.M. because of alleged bias shown during voir dire, and that his trial counsel “was ineffective because he failed to conduct an adequate investigation into Bass's defenses, failed to speak with witnesses for the defense, failed to speak with witnesses for the State, and failed to consider whether expert assistance would assist the defense.” (Doc. 12-29, pp. 4-8, 13-14). Bass did not seek further appellate review in his Alabama Rule 32 proceedings, and the ACCA issued judgment on August 28, 2019. (Doc. 12-30).
Bass filed the present habeas petition on August 3, 2020, the date he certifies it was delivered to prison officials for mailing. (Doc. 1); Taylor v. Williams, 528 F.3d 847, 849 n.3 (11th Cir. 2008) (). In the habeas petition, Bass raises two grounds for relief: (1) his trial counsel was generally ineffective in investigating his case by failing to interview possible witnesses and secure their testimony at trial; and (2) his trial counsel was ineffective for failing to object to two jurors who showed bias against him in voir dire.[3](Doc. 1, pp. 6-7).
The Respondent, through the Office of the Attorney General of the State of Alabama (“the State”), filed an answer asserting that Bass's habeas petition is due to be dismissed with prejudice as untimely and procedurally defaulted. (Doc. 12). In response, Bass filed a “Motion for Argument” which the Court treated as a reply to the State's answer. (Doc. 13).
On May 10, 2021, the undersigned issued an order explaining that Bass's habeas claims appeared to procedurally defaulted and/or without merit. (Doc. 15).
Bass was given an opportunity to respond and show cause why his habeas petition should not be dismissed, so he filed a reply on June 28, 2021. (Doc. 15; Doc. 16). The undersigned has reviewed all of the filings in this matter and recommends that Bass's habeas petition be denied for reasons set forth below.
In his habeas petition, Bass asserts two grounds for relief:
(Doc. 1, pp. 6-7). As explained in more detail below, both claims are unexhausted and procedurally defaulted.
28 U.S.C. § 2254(b)(1) provides that “[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that ... the applicant has exhausted the remedies available in the courts of the State...” (emphasis added). Exhaustion has not occurred if “[the petitioner] has the right under the law of the State to raise, by any available procedure, the question presented.” 28 U.S.C. § 2254(c). Practically speaking, this means that Alabama's courts must have had a chance to rule on Bass's federal claims before those claims can come to this Court through a federal habeas petition.[4]
The Supreme Court has described the exhaustion requirement like this:
“Because the exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts, ... state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.”
O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). This includes “review by the state's court of last resort, even if review in that court is discretionary.” Pruitt v. Jones, 348 F.3d 1355, 1359 (11th Cir. 2003) (citing O'Sullivan, 526 U.S. at 845). In Alabama, the established appellate review process includes an appeal to the Alabama Court of Criminal Appeals, an application for rehearing to the Alabama Court of Criminal Appeals, and an application for discretionary review by the Alabama Supreme Court. See Price v. Warden, Att'y Gen. of Ala., 701 Fed.Appx. 748, 749-50 (11th Cir. 2017) (per curiam); Ala. R. App. P. 4, 39, 40. Bass's habeas claims are unexhausted because they have not been through a complete round of Alabama's appellate review process.
The undersigned acknowledges that Bass raised claims of ineffective assistance of counsel and juror bias, in substantially the same form as they are raised here, on direct appeal to the ACCA. Both claims were rejected as unpreserved because they had not first been raised in the trial court. (Doc. 12-11). Bass raised the claims again in both the trial court and on appeal to the ACCA in his Alabama Rule 32 proceedings, with both courts rejecting those claims on the merits.[5] However, Bass missed a critical next step that precludes this Court from considering his claims now Bass did not file an application for rehearing of the ACCA's decision affirming the denial of Alabama Rule 32 relief, see Ala. R. App. P. 40, which in turn precluded him from seeking certiorari review of that decision with the Alabama Supreme Court, see Ala. R. App. P. 39(c)(1) (); Ala. R. App. P. 40(d)(1) (...
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