Debardelaben v. Price

• Court: U.S. District Court — Middle District of Alabama
• Writing for the Court: SUSAN RUSS WALKER CHIEF UNITED STATES MAGISTRATE JUDGE
• Decision Date: 26 February 2015
• Docket Number: CASE NO. 1:12-CV-145-WHA [WO]
• Citation: Debardelaben v. Price, CASE NO. 1:12-CV-145-WHA [WO] (M.D. Ala. Feb 26, 2015)
• Parties: GREGORY LAWON DEBARDELABEN, AIS #266562, Petitioner, v. CHERYL PRICE, et al., Respondents.

GREGORY LAWON DEBARDELABEN, AIS #266562, Petitioner, v. CHERYL PRICE, et al., Respondents.

CASE NO. 1:12-CV-145-WHA [WO]

DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA SOUTHERN DIVISION

February 26, 2015

RECOMMENDATION OF THE MAGISTRATE JUDGE¹

I. INTRODUCTION AND PROCEDURAL HISTORY

This civil action is before the court on a 28 U.S.C. § 2254 petition for writ of habeas corpus relief filed by Gregory Lawon Debardelaben ["Debardelaben"], a state inmate, on February 8, 2012.² In this petition, Debardelaben challenges convictions and sentences imposed upon him by the Circuit Court of Houston County, Alabama for two counts of first degree robbery.³ On June 24, 2009, the trial court conducted a sentencing hearing. At theconclusion of this hearing, the court sentenced Debardelaben as a habitual offender to life without parole on each of the robbery convictions. The trial court used two certified copies of prior federal convictions for armed bank robbery and a certified/exemplified copy of a conviction imposed by the State of Colorado for distribution of a controlled substance as the basis for sentence enhancement. Respondents' Exhibit A (Part 4) - Doc. No. 17-4 at 111-112.

At trial, the State presented photographs, including photographs of the currency taken during the robberies and the vehicle used by Debardelaben, submitted a videorecording of the robbery at Big Lots, produced testimony regarding a verbal statement made by Debardelaben, and presented testimony of the victims and law enforcement officials who investigated the robberies as evidence in the case.

Twyla Sauls, an employee of Family Dollar testified, in relevant part, as follows:

BY MR. ATWELL [The Prosecutor]:

* * *

Q. ... [Y]ou were working for [Family Dollar] back in May of '08?

A. Yes, sir.

Q. And did something on May 6^th unusual happen when you were working that day?

A. On May 6^th? Yes, sir.

Q. Okay. Where were you working when this happened?

A. Well, at that time I was cleaning the floor, sweeping the floor.

Q. Was it nighttime, daytime?

A. Nighttime, evening.

Q. Okay. And what, if anything, do you remember happening that evening?

A. I remember we were being robbed.

Q. Okay. What made you think you were being robbed?

A. Well, the person came in the store, you know, and as usual, you know, we say hello, and he made eye contact with us, like any normal customer would. So I was continuing my sweeping the floor, and my manager called me up, you know, told me - she said, Open your drawer. And I - I - she said, Go over - she said, Go overto your register. So I went over to my register. And she said, You're going to have to open your drawer.

Q. Who is your manager?

A. Tanesha Rogers.

Q. So Tensha asked you to open your register?

A. Yes, sir.

Q. Was there anybody else around that you saw when she told you this?

A. He was there. (Witness indicating by pointing.)

Q. When you say he, you're pointing at -

A. I'm pointing at him, yes, sir.

Q. - this man in the white shirt over here?

A. Yes, sir.

MR. ATWELL: Let the record reflect she's identifying the defendant.

BY MR. ATWELL:

Q. Is this the same person you saw come in the store?

A. Yes, sir.

Q. Was there anybody else in the store?

A. Yes, sir. We had - we had another customer in there with small children.

Q. Okay. And when you were asked to open your drawer, who was present then?

A. The store manager was at her register and the customer was right behind [Debardelaben]. And I walked between him and her to get to my - to get to mine. And he came over to my register where I was at and he says, You got five seconds to open it, I have a gun.

Q. He told you he had a gun?

A. Yes, sir.

Q. Did you see it?

A. I did not see the gun.

Q. All right. But he told you you had five seconds to open your -

A. He - he said - he said, You got five seconds to open this register.

Q. Okay. So what - what did you do?

A. Well, I told him - I said, I can't just open the register, I don't have a key. And my manager said, Ring up something, you know. So he had a bag that he had already purchased, you know, and so he threw me this cleaner and told me to ring it up.

Q. All right. So did you do that?

A. I did that and cashed it out.

Q. All right.

A. So my drawer would open.

Q. So what did you do when your drawer opened?

A. Well, he told me to take it out, and I just stepped back and he reached in and started grabbing it.

Q. Okay. Were you afraid?

A. Yes, sir.

Q. Okay. Had he already gotten any money before he came to your drawer?

A. He had gotten Tanesha's money.

Q. Okay. Where was Tanesha while you were emptying your money?

A. Over at her register.

Q. Okay. Do you have any idea how much money he got?

A. No, sir, I don't.

Q. All right. Did - and what did he put the money into?

A. A bag. His - the shopping bag.

Q. Do you know what kind of shopping bag it was?

A. Family Dollar shopping bag.

* * *

Q. Okay. All right. So when you put your money into the bag, or he put it into the bag, what did you do next?

A. He told us to go to the back of the store.

Q. When you say us, you're talking about you and Tanesha?

A. Me and Tanesha and the customer with the two small children. Yes, sir.

Q. And what did you do?

A. We started walking back to the back of the store.

Q. All five of you?

A. Yes.

Q. All right. And where did he go? Did he take you back there?

A. No. He went - he was going toward the door to leave, but he waited till we got to the back before he went out.

Q. Okay. And what did y'all do after he got out?

A. We called the police.

* * *

Respondents' Exhibit A (Part 3) - Doc. No. 17-3 at 35-40.

Tanesha Rogers then provided the following pertinent testimony:

BY MR. ATWELL:

Q. Would you introduce yourself to the jury, please?

A. My name is Tanesha Rogers. I'm the manager at Family Dollar.

Q. How long have you been at Family Dollar?

A. A little over eight years.

Q. And you worked with Twyla?

A. Yes.

Q. And what - you said you're a manager there?

A. Uh-huh.

Q. Okay. Were you so employed back on May 6^th of 2008?

A. Yes.

Q. And were you working that night?

A. Yes.

Q. Who was working with you?

A. Twyla Sauls.

Q. Just the two of you?

A. Yes.

Q. And sometime that evening something kind of different happened, correct?

A. Yes.

Q. What was that?

A. A robber.

Q. All right. Did you see the individual come in the store that robbed you?

A. Yes.

Q. Where were you working when he came in the store?

A. At the back register.

Q. There's a front register and a back register?

A. It's two registers side by side. I was on the far back one.

Q. But they are both in the front of the store?

A. Yes.

Q. All right. And you noticed him come in?

A. Yes.

Q. Where did he go when he came in?

A. He entered the store and walked down the far south lane. Went all the way to the back wall. He grabbed some glass cleaner and another item or two, and then he came walking around. He came all the way around the store, and he came up to the checkout to check out.

Q. Okay. And this person that you're talking about that did this to you, is he in the courtroom today?

A. Yes.

Q. Could you point him out, please?

A. (Witness pointing.) He's right there.

MR. ATWELL: Again, Your Honor, I'd like the record to reflect she's pointing to the defendant.

BY MR. ATWELL:

Q. So he comes up to your register with these items?

A. Yes.

Q. And what did he do with those items?

A. He laid them up like a regular customer. I rung them up. I asked him was that it and he said yeah, so I bagged it up. He gave me his money. Just when I cashed out the drawer, he pulled out a gun and said, Give me all your money. And there was a little boy walking up to the register. After I gave him the money, he pointed ... the gun to the little boy.... [T]he little boy said, Mommy, gun. But I guess the mommy was on the phone, so - so - so into the phone she didn't hear him or whatever. She walked up on [Debardelaben] and I was still giving him the money.

Then he made me call for the other cashier, which is Twyla.

Q. So he pulled this gun - where did he pull it from?

A. From out of his - the lining of his pants.

Q. The waistband?

A. Yes.

Q. Okay. And what - did it scare you?

A. Yes.

Q. And when he told you - when he pulled it out, what did he want you to do?

A. Give [him] all the money out of the register.

Q. Okay. And did you comply and give him the money from the register?

A. Yes.

Q. What did you do with it?

A. He made me put it into the bag where I had bagged his merchandise in.

Q. Okay. And you said that he had you call the other -

A. Twyla.

Q. - clerk? Twyla?

A. Yes.

Q. What - what did you do - tell Twyla to do?

A. I told Twyla that she needed to give him all the money out of the register. And then he walked around the counter in front of her and she - he told her to give himall the money. And she told him that she couldn't open the register without ringing up something, so he handed her the glass cleaner back out of the bag to make her ring it up.

Q. Do you scan it?

A. Yes.

Q. And that opens the drawer?

A. Yes. Well, you total it out.

Q. All right. So she scans the glass cleaner, opens her drawer, and the money is removed from that?

A. Yes.

Q. So what happens next?

A. It was me, the little boy and the lady, and Twyla. He made us come out from around the counter and made us walk to the back, and told us to stay back there in the back, and he ran out the store and left.

Q. What did y'all do when he left?

A. Well, after we knew that he left, we called 9-1-1.

* * *

Respondents' Exhibit A (Part 3) - Doc. No. 17-3 at 45-50.

Angela Jackson Carroll, a customer service specialist at Big Lots, testified, in relevant part, as follows:

BY MR. ATWELL:

* * *Q. ... [W]hat does [a customer service specialist] do?

A. Just supervisor of the cashiers.

Q. Okay. Were you ... working at a cash register around 8 p.m. [on May 6, 2008]?

A. Yes, sir, I was.

Q. Okay. And did anything unusual happen at that time when you were working the register?

* * *

A. ... [T]he gentleman came in, purchased a flashlight.

Q. Right.

A. And he asked me did we have batteries, and I pointed to the battery counter. And that's when he held his shirt up and showed me the gun and told me to put the money in

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