Harris v. Williams

• Decision Date: 09 December 2021
• Docket Number: C. A. 19-0297-KD-MU
• Court: U.S. District Court — Southern District of Alabama
• Parties: JEFFERY HARRIS, Petitioner, v. WARDEN GARY WILLIAMS, Respondent. [1]

JEFFERY HARRIS, Petitioner, v. WARDEN GARY WILLIAMS, Respondent. ^[1]

C. A. No. 19-0297-KD-MU

United States District Court, S.D. Alabama, Southern Division

December 9, 2021

REPORT AND RECOMMENDATION

BRADLEY MURRAY, UNITED STATES MAGISTRATE JUDGE

Jeffery Harris has petitioned this Court for federal habeas corpus relief pursuant to 28 U.S.C. § 2254. (Doc. 1). This matter has been referred to the undersigned for the entry of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B), Fed.R.Civ.P. 72, and General Local Rule 72(a)(2)(R). It is recommended that the instant petition, as amended (see Docs. 13 & 14), be dismissed because to the extent Harris has alleged viable constitutional claims sounding in habeas corpus, this Court is procedurally barred from reaching the merits of those claims.

FACTUAL BACKGROUND

On September 20, 2017, a jury of Harris's peers returned a verdict finding him guilty of one count of attempt to distribute cocaine, one count of attempt to distribute marijuana, one count of possession of cocaine, one count of possession of marijuana, and one count of intent to deliver a cellphone to an inmate (Doc. 11-5, PageID. 706-07; see also id., PageID. 707-08 (polling of the jury)), and on November 1, 2017, he was sentenced to concurrent 130-month terms of imprisonment (id., PageID. 767-68).

The August 10, 2018, memorandum decision of the Alabama Court of Criminal Appeals on Harris's direct appeal, see Harris v. Alabama, 274 So.3d 304 (Ala.Crim.App. 2018) contains a summary of the evidence produced at trial.

The evidence adduced at trial tended to establish the following. On the afternoon of May 9, 2016, Officer Michael Banks, an investigative officer with the Alabama Department of Corrections, left work at Holman Prison and saw a black vehicle pulled over on the shoulder of the road. After he drove several yards past the vehicle, Officer Banks saw a male, who was later identified as Adrian Pritchett, get out of the passenger side of the vehicle with a package in his hand. Officer Banks watched as Pritchett walked into the wooded area near the prison and then returned to the vehicle without the package. Officer Banks was aware of problems with people introducing contraband into the prison facility by leaving it in the woods for inmates to pick up later so he decided to detain Pritchett. At that time, the driver of the vehicle, who was later identified as Harris, got out of the vehicle and walked toward Officer Banks. Officer Banks directed Harris to get back into the vehicle, which he did. As Officer Banks detained Pritchett, Harris left the scene. Officer Banks then notified his supervisor what had just occurred and requested backup.

Correctional officers from Fountain Prison, which is close to Holman Prison, responded to the request for backup. They located Harris and his vehicle just as it began to turn onto the main highway leading from Holman Prison. At that point they detained Harris. No. testimony was presented that drugs or other contraband was found either on Harris or in the vehicle he had been driving.

Agent Deputy W. D. Favor with the Alabama Department of Corrections Investigation and Intelligence Division testified that a cursory search near where Pritchett had gone into the woods was conducted. As a result of that search, law enforcement officers located a blue “birthday” bag containing two “football-size[d]” packages “wrapped in black tape.” (R. 239-41.) It was later determined that th[e] package contained 24.07 grams of marijuana, 5.44 grams of cocaine, “Newport” [] cigarettes, several cellular telephones and chargers, and super glue.^[2]

On July 29, 2016, Harris was indicted by the Escambia County grand jury for attempt to commit a controlled-substance crime (distribution of cocaine), see §§§ 13A-4-2, -12-203, and -12-211, Ala. Code 1975; attempt to commit a controlled-substance crime (distribution of marijuana), see §§ 13A-4-2, -12-203, and -12-211, Ala. Code 1975; unlawful possession of a controlled substance (cocaine), see § 13A-12-212(a)(1), Ala. Code 1975; first-degree unlawful possession of marijuana, see § 13A-12-213, Ala. Code 1975; and intent to deliver a cellular telephone to an inmate, see § 14-11-50(a), Ala. Code 1975. At a pretrial conference on September 18, 2017, Harris moved to dismiss the indictment on the ground that the two counts of possession were lesser-included offense of the two counts of attempted distribution. Following a hearing, the circuit court denied that motion.

On September 20, 2017, a jury found Harris guilty of all counts as charged in the indictment.

Harris, 274 So.3d at 305-06.

Appellate counsel for Harris raised one issue on direct appeal, namely, whether possession is a lesser-included offense under an attempted distribution charge, thereby depriving the court of jurisdiction to convict on both charges when the possession charges arise out of the same incident as the attempted distribution charges. (See Doc. 11-6, PageID. 820). In its opinion released on August 10, 2018, the Alabama Court of Criminal Appeals framed the issue more succinctly as whether Harris' “possession convictions are lesser-included offenses of his attempted-distribution convictions and violate the prohibition against double jeopardy.” Harris, 274 So.3d at 306. After recognizing the State's agreement with Harris and its position that Harris' convictions for unlawful possession of cocaine and unlawful possession of marijuana should be vacated, the Alabama Court of Criminal Appeals agreed with both Harris and the State. See Id. Alabama's criminal appellate court explained why possession of cocaine and possession of marijuana were lesser-included offenses of attempted distribution of cocaine and attempted distribution of marijuana in Harris' case, see Id. at 306-10, and also explained that “[b]ecause Harris was convicted of both greater offenses and lesser offenses included within those greater offenses, his convictions for both attempted distribution and possession violate double-jeopardy principles.” Id. at 310. Accordingly, Harris' case was “remanded with instructions to the circuit court to vacate Harris's convictions and sentences for possession of marijuana and possession of cocaine. Due return shall be made to this Court within 42 days of the date of this opinion.” Id.

Several days later, on August 15, 2018, Escambia County Circuit Judge Bert W. Rice entered an order on remand, vacating Harris' possession of marijuana and possession of cocaine convictions (and sentences) and further noting that the sentences previously imposed on all remaining counts of conviction “remain binding” because those convictions were not reversed. (Doc. 11-9, PageID. 894). On return to remand the Alabama Court of Criminal Appeals entered an unpublished memorandum opinion on October 5, 2018, dismissing Harris' appeal because he had received the relief he requested when the circuit court entered its August 15, 2018 order vacating his possession of marijuana and possession of cocaine convictions and sentences. (Doc. 11-10, PageID. 897-98). Harris' January 21, 2019 application for rehearing (Doc. 11-11, PageID. 899-901)^[3] was stricken, on January 28, 2019, “for failure to file a timely application.” (Doc. 11-12, PageID. 904). In addition, Harris' February 6, 2019 petition for writ of certiorari to the Alabama Supreme Court (Doc. 11-13, PageID. 907-09), which Harris' own cover letter described as untimely (id., PageID. 905), was stricken as untimely filed on February 12, 2019 (Doc. 11-14, PageID. 911). In his cover letter, Harris laid blame for the untimely filing of his petition for writ of certiorari and for the untimely filing of his application for rehearing in the Alabama Court of Criminal Appeals at the feet of his attorney, whom he asserted filed a notice of appeal in the Alabama Court of Criminal Appeals following remand proceedings rather than filing an application for rehearing. (See Doc. 11-13, PageID. 905-06).^[4] Harris filed his petition for writ of habeas corpus in this Court on or about April 18, 2019. (See Doc. 1). Thereafter, on June 5, 2019, Harris filed a Rule 32 petition in the Circuit Court of Escambia County, Alabama collaterally attacking his remaining convictions and sentences. (See Doc. 17-2, PageID. 997-1059). Concurrent with the filing of the Rule 32 petition, Harris filed a motion to proceed without prepayment of fees and costs; the trial court denied Harris' in forma pauperis motion on June 6, 2019 and ordered him to pay the filing fee (compare Doc. 14-2, PageID. 937 (trial court's June 6, 2019, order denying Harris' request to proceed in forma pauperis) with Doc. 17-1, PageID. 996)). When Harris did not pay the filing fee as ordered, the Circuit Court of Escambia County, Alabama dismissed his Rule 32 petition on July 12-13, 2019. (Id.). Harris then filed a petition for writ of mandamus in the Alabama Supreme Court on or about August 5, 2019 (compare Id. with Doc. 17-3, PageID. 1060 n.1). The Alabama Supreme Court transferred Harris' mandamus petition to the Alabama Court of Criminal Appeals on August 7, 2019. (Id.; see also Doc. 14-2, PageID. 941 (August 7, 2019, order of transfer)). While the petition for writ of mandamus was pending in the Alabama Court of Criminal Appeals, Harris attempted to amend his IFP declaration in the trial court; however, the trial court disallowed/denied the amendment (compare Doc. 17-1, PageID. 996 with Doc. 14-2, PageID. 935 (“On August 26, 2019 the Escambia County Circuit Court Judge Jeffery White did issue an order denying petitioner[‘]s Amended in Forma Pauperis Declaration.”)). Harris then filed a supplement amendment to his writ of mandamus on August 29, 2019. (Doc. 14-1, PageID. 928; compare Id. with Doc. 17-1, PageID....