Hernandez v. Price, Case No. 2:15-cv-00993-KOB-SGC
| Decision Date | 25 September 2018 |
| Docket Number | Case No. 2:15-cv-00993-KOB-SGC |
| Parties | CARLOS HERNANDEZ, Petitioner, v. WARDEN CHERYL PRICE, et al., Respondents. |
| Court | U.S. District Court — Northern District of Alabama |
This is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by Carlos Hernandez, a state prisoner. Hernandez challenges his state conviction for cocaine trafficking. For the following reasons, Hernandez's claims are due to be dismissed, either as unexhausted or meritless.
On June 22, 2012, a jury sitting in Jefferson County, Alabama, convicted Hernandez of cocaine trafficking. On July 26, 2012, the trial judge sentenced Hernandez to life without parole. (Doc. 17-1 at 33, 38-39).1 Hernandez filed a direct appeal, raising five issues:
The appellate court affirmed Hernandez's conviction by memorandum opinion on April 26, 2013. (Doc. 12-1). Hernandez sought further review, raising all but the jury instruction claim in a petition for writ of certiorari. (Doc. 17-16 at 5-11). The Alabama Supreme Court denied the writ without opinion on September 27, 2013, and entered a certificate of judgment. (Doc. 12-2); Ex parte Carlos Hernandez, No. 1120958, 141 So. 3d 1029 (Ala. 2013) (Moore, C.J. dissenting).
On September 19, 2014, Hernandez filed a petition for relief from conviction or sentence pursuant to Rule 32 of the Alabama Rules of Criminal Procedure. (Docs. 17-17); Carlos Hernandez v. State of Alabama, CC 2010-000904.60.2 This Rule 32 petition asserted four claims for ineffective assistance of counsel: (1) trial counsel failed to file a motion to suppress the audio recording of a drug transaction; (2) trial counsel erred by failing to challenge the chain of custody of the cocaine and stipulating to the admission of the Certificate of Analysis; (3) appellate counsel did not challenge the State's failure to provide sufficient notice of its intent tointroduce a Certificate of Analysis identifying the cocaine at issue in lieu of live testimony by the forensic scientist who performed the analysis, as required by Alabama law; and (4) trial counsel erred by stipulating to admitting the Certificate of Analysis into evidence, depriving Hernandez of his right to confront the forensic scientist. (Doc. 17-17 at 23-32). The State filed a motion to dismiss the petition on January 12, 2015, arguing Hernandez's claims were meritless and barred under Rule 32. (Doc. 17-19 at 16-20). On January 16, 2015, the trial court denied the Rule 32 petition as insufficiently pled. (Doc. 17-17 at 7-8).
Hernandez appealed the denial of the Rule 32 petition on February 17, 2015, and moved for IFP on appeal. (Doc. 17-17 at 3, 9-11). The trial court and Court of Criminal Appeals denied Hernandez's IFP motions, and after Hernandez failed to pay the $200 docket fee or show good cause for the failure, the appellate court dismissed the appeal and issued a Certificate of Judgment on May 29, 2015. (Doc. 17-20); Carlos Hernandez v. State of Alabama, CR-14-0660 (Ala. Crim. App. 2015); see also Hernandez, CC-2010-904.60, Docs. 20, 25,3 26, 28, 30, 33, 34; (Doc. 14 at 2, 20-26).
Hernandez declares he "could not pay the filing fee to appeal the judgment" and sought mandamus relief, requesting the Alabama Supreme Court to require the appellate court to grant IFP on appeal. (Doc. 20 at 2). Hernandez provides no other details regarding the proceedingsother than to declare the Alabama Supreme Court denied the mandamus petition. (Id.).4 Thus, it appears the Alabama Supreme Court refused to issue an order directing the Alabama Court of Criminal Appeals to grant his motion to proceed IFP on appeal. Hernandez did not file an application for rehearing and did not seek certiorari from the Alabama Supreme Court. Accordingly, Hernandez never presented the claims presented in his first Rule 32 petition to the Alabama Supreme Court.
In April 2015, while the appeal of the denial of his first Rule 32 petition was pending with the Court of Criminal Appeals, Hernandez attempted to file a second Rule 32 petition with the trial court. (See Doc. 17-21 at 3).5 The second Rule 32 petition presented only a double jeopardy claim under the Fifth Amendment. (Id.). The Jefferson County Clerk refused to file the petition and on May 15, 2015, notified Hernandez he could not file a new Rule 32 petition while his first petition was on appeal. (Id.); see also, Hernandez, CC-2010-904.60, Doc. 32. After the Court of Criminal Appeals issued the Certificate of Judgment on his first Rule 32 petition—and after initiating the instant federal habeas petition—Hernandez continued to pursue the filing of his second Rule 32 petition. Although he had to file two mandamus petitions, Hernandez ultimately was successful in his attempts to file the second Rule 32 petition. As explained below, initially the record was unclear whether the second Rule 32 petition revivedclaims from the first Rule 32 petition. This lack of clarity was exacerbated by the haphazard filing of pleadings and orders related to the second Rule 32 petition; these filings and entries appear intermittently in the records of the underlying criminal case,6 the first Rule 32 petition, and the second Rule 32 petition.
Around the same time, the trial court appointed counsel to represent Hernandez in his first Rule 32 petition and ordered the state to respond. Hernandez, CC-2010-904.60, Doc. 41. The court also set the first Rule 32 petition for a hearing. Id. at Doc. 45. In the record of his first Rule 32 petition, Hernandez filed a pro se motion to consolidate his first and second Rule 32 petitions or alternatively, to amend his second Rule 32 petition to include the claims raised in the first petition. Hernandez, CC-2010-904.60, Doc. 47. The State filed a response to the motion in the records of the first and second Rule 32 petitions on February 20, 2018. (Doc. 17-24).
On May 8, 2018, Hernandez filed a reply which was docketed in the record for the second Rule 32 petition; in the pleading—styled as a motion to dismiss—Hernandez abandoned his attempts to consolidate or amend his Rule 32 petitions. (Doc. 19 at 9-11); Hernandez, CC-2010-904.61, Doc. 7 (same). The reply conceded the trial court lacked jurisdiction to consolidate because the first Rule 32 petition had been long dismissed and because the trial court could not grant IFP on appeal. (See Doc. 19 at 9). The reply also reflected the double jeopardy claim was Hernandez's only pending Rule 32 claim. (Id. at 10).
On May 15, 2018, the trial court granted Hernandez's motion to dismiss and granted—without clarification—the state's motion to dismiss the first Rule 32 petition. Hernandez, CC-2010-904.60, Doc. 57. The court also granted—again without clarification—Hernandez's motion to consolidate and or amend his Rule 32 petition. (Doc. 20 at 5-7); Hernandez, CC-2010-904.60, Doc. 59. Hernandez filed no further motions in, or otherwise challenged the May 15, 2018, dismissal of his first Rule 32 petition. No further orders have been entered in the record of the second Rule 32 petition, which remains pending.
On this state court record, the undersigned has the following understanding of Hernandez's post-conviction state court claims: (1) the first Rule 32 petition's claims for ineffective assistance of counsel were dismissed; (2) the second Rule 32 petition's double jeopardy claim remains pending in the trial court. None of Hernandez's Rule 32 claims have been presented to the Alabama Supreme Court.
While Hernandez was pursuing his second Rule 32 petition, he filed the instant petition seeking federal habeas relief in this court on June 10, 2015. (Doc. 1 at 32).7 After this court denied Hernandez's application to proceed IFP, he paid the $5.00 filing fee. (Docs. 28, 3).
The instant petition raises the following claims: (1) the trial court erred by refusing to acquit him when the evidence was insufficient to prove the element of knowledge, including knowing possession and knowledge of the charged amount of cocaine; (2) the trial court erred in refusing to compel the state to produce confidential informant Mr. X as a witness, and erred by failing to at least compel the state to provide information to allow the defense to find him; (3) the trial court erred in refusing to instruct the jury that merely acting in conformity with another's criminal conduct is insufficient to establish guilt; (4) the trial court erred in concluding it had no discretion regarding the sentence; (5) ineffective assistance of counsel for failure to file a motion to suppress the audio recording of an alleged drug transaction; (6) ineffective assistance of trial counsel for stipulating to the admission of an unsworn Certificate of Analysis in lieu of testimony regarding the chain of custody and the validity of the forensic analysis and conclusions; (7) ineffective assistance of counsel for failure to object to the state's failure to provide the notice required in order to utilize the Certificate of Analysis in lieu of testimony; and (8) ineffective assistance of counsel for failing to object and preserve for review his right to confront and...
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