Hines v. White

• Decision Date: 11 September 2012
• Docket Number: CA 11-0648-WS-C
• Parties: THOMAS CURTIS HINES, AIS 118977, Petitioner, v. CYNTHIA WHITE, Respondent.
• Court: U.S. District Court — Southern District of Alabama

THOMAS CURTIS HINES, AIS 118977, Petitioner,

v.CYNTHIA WHITE, Respondent.

CA 11-0648-WS-C

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

Dated: September 11, 2012

SUPPLEMENTAL REPORT AND RECOMMENDATION

This cause is back before the undersigned for issuance of a supplemental report and recommendation on petitioner's application for a certificate of appealability (Doc. 23), which Chief United States District Judge William H. Steele has construed as a motion to reconsider, as contemplated by Rule 11(a) (see Doc. 28, at 1 & 4). This report and recommendation is limited to determining "whether reasonable jurists would find it debatable whether the petitioner's first ground states a valid claim of the denial of a constitutional right." (Doc. 28, at 4 (emphasis supplied).)¹ In structuring the supplemental report and recommendation, the undersigned is ever mindful of the framework set forth in the Court's order dated August 21, 2012 (see id. at 3-4), more specifically:

On the present record, the Court must conclude that reasonable jurists would find it debatable whether the petitioner's first ground forrelief constitutes, or should be construed as, a request for relief under Rule 60(d), immune from the procedural requirement of appellate pre-authorization and not subject to summary dismissal as a second or successive petition.

To obtain a COA, however, the petitioner must also show that reasonable jurists would find it debatable whether the petition states a valid claim of the denial of a constitutional right. The parties and the Magistrate Judge have not addressed the requirements for fraud on the court and whether they have been, or reasonably could be construed as having been, met in this case. Nor have they addressed whether, assuming any such fraud in the federal court occurred, there was (or could reasonably be considered to have been) an underlying constitutional violation in connection with the use of the petitioner's prior conviction[s] to sentence him as a habitual offender.

(Id.) In order for the undersigned to properly consider Hines' motion to reconsider the denial of a COA, as it relates to petitioner's first ground (see Doc. 23, at 5-13),² it isnecessary for the undersigned to provide a proper historical context to this ground and, to this end, the undersigned ordered from the Federal Records Centers of the National Archives and Records Administration the complete file of petitioner's initial habeas corpus attack on his conviction and sentence filed on April 10, 1986, Hines v. Johnson, 86-0357-BH-S.³ Therefore, while some of the facts utilized herein will be the same as those contained in the previous report and recommendation entered in this case on May 24, 2012 (Doc. 15), the undersigned will also liberally intersperse facts gleaned from Hines v. Johnson, supra.

BACKGROUND

On December 5, 1983, Hines was convicted of possession of burglar's tools in the Circuit Court of Mobile County, Alabama and was sentenced to a 30-year term of imprisonment pursuant to Alabama's Habitual Felony Offender Act, Ala.Code § 13A-5-9(b)(1). (Compare Doc. 5, at 2 with Doc. 12, Exhibit 5, at 1.)⁴ During petitioner's trial, andas it specifically relates to Hines' first ground, Hines mentioned during his direct examination that he told the man who employed him to perform masonry work, Clay Bryant, that he was "recently out of the penitentiary," see Hines v. Johnson, CA 86-0357-BH, Doc. 10, Exhibit A Number 1 to Answer, Trial Transcript, at 49; on cross-examination admitted that he was convicted, by guilty pleas, of burglary in the second degree in Mobile County on July 19, 1977 and receiving stolen in the first degree in Mobile County on July 29, 1981, id. at 62-63; and reiterated on re-direct examination that he pled guilty to those "prior convictions[.]" Id. at 67 ("Q Thomas, on the prior convictions that they have on you, did you plead guilty to all those? A Yes, sir.").) Hines' conviction and sentence were affirmed by the Alabama Court of Criminal Appeals in an unpublished memorandum opinion issued on April 10, 1984. Hines v. State, 453 So.2d 7 (Ala.Crim.App. 1984) (table). That court ultimately issued a certificate of final judgment of affirmance on May 1, 1984. (See Doc. 12, Exhibit 1, at 2.).

Hines filed a petition for writ of error coram nobis in the Circuit Court of Mobile County on May 7, 1984. (See id., at 3.) Therein, petitioner alleged that he was denied the effective assistance of counsel and, as well, that he was denied his constitutional right to a speedy trial. Hines v. State, 461 So.2d 50 (Ala.Crim.App. 1984). The trial court dismissed Hines' writ without an evidentiary hearing. Id. The Alabama Court of Criminal Appeals found no error with the trial court's summary dismissal of petitioner's speedy trial claim but found his allegations of ineffective assistance of trial and appellate counsel sufficient to warrant an evidentiary hearing; therefore, the cause was remanded to the trial court for such a hearing. Id.⁵

During the error coram nobis hearing, on February 14, 1985, Hines' arguments regarding his trial counsel's ineffective assistance at sentencing consisted of the following:

Counsel was again ineffective when he failed to object to the sentence imposed by the Court. At the close of the evidence when the jury returned its verdict of guilty His Honor asked me did I have anything to say before sentencing. I again brought to His Honor['s] attention the fact that I had been . . . denied my right to a speedy trial. Me and His Honor made one or two statements then His Honor said that I'm not going to argue with you, I sentence you to thirty years in the State Penitentiary.

To begin with, the indictment didn't allege that I was a Habitual Offender. . . .

THE COURT: But you are, aren't you? I mean, don't you have three previous felony convictions before this one, four?

MR. HINES: Your Honor, that's not the issue. The issue is not whether I am a Habitual Offender. It was whether at the time I stated that I had prior felony conviction[s], could those prior felony convictions be used to enhance my punishment by giving me, first, notice that I be treated as a Habitual Offender[,] and then second, without giving me a right to be heard on that particular issue.

THE COURT: I thought the Statute makes it mandatory.

MR. HINES: Notice still is required, Your Honor . . . and then I have a right to be heard. Right here, Alabama Rules of Criminal Procedure, temporary rules, Rule 6-3-2: "At a reasonable time prior to the hearing the defendant shall be given notice of the prior convictions or conviction upon which the State intend to proceed." . . . It was never alleged that I was a Habitual Offender. And at the time I admitted having prior felony conviction[s] . . . that statement could only be used for impeachment purposes.

. . .

At the time I admitted having prior felony conviction[s], those priors could only be used for impeachment purposes. The indictment didn't allege that I was a Habitual Offender. After the jury found me guilty, [neither] the prosecution, the Court or my attorney moved that I be[treated] as a Habitual Offender even though the State of Alabama, particularly Mobile County, has a policy of giving a written or oral notice of the State['s] intent to proceed against the defendant as a Habitual Offender. What I have here is a motion filed in Mobile County[] . . . for Habitual Offender Status . . . [in] [t]he case [of] . . . State of Alabama versus James Edward Broaden . . . .

. . .

The Appellate Court [has] stated: "There is no requirement that defendant be notified prior to conviction of [the] State['s] intent to proceed against the defendant as a Habitual Offender. What is required is reasonable notice prior to sentencing." No notice was given me. The records don't show, no where in this transcript does it show that oral notice or written notice was given that I should be treated as a Habitual Offender. And at the time that I was found guilty by the jury, the maximum punishment I could receive for a Class C felony was from one to ten years. In order to enhance that punishment it had to be alleged by somebody that I was a Habitual Offender. I had to be given notice of the State['s] intent to proceed against me as a Habitual Offender. And I was supposed to [have] been given the opportunity to be heard.

Hines v. Johnson, CA 86-0357-BH, Doc. 10, Exhibit B Number 3, Error Coram Nobis Hearing, at 31-33, 34 & 35-36. Hines' trial attorney, Glenn Davidson, Esquire, also testified during the error coram nobis hearing. See id. at 45-52.

Q Mr. Davidson, you say . . . in bringing to the jury's attention that I had prior criminal records is because you had anticipated that I would take the witness stand[,] is that correct?

A Yes. And I think you know that too.

Q Then why compound the prejudicial effect of that by again in your second comment bringing to the jury's attention that fact that I had participated in past criminal activity?

A Well because it was my strategy and my thoughts that if the jury knew well enough in advance that you had . . . a prior conviction record that the prejudicial impact would be eased whereas if you took the stand and you were testifying that you never had done this, you didn't know, you know, you weren't out there to break into this man's car[,] and then on cross examination they come out and say well you've been convicted of burglary and receiving stolen property. It was my opinion that that would have been more prejudicial for the jury to hear that the first time on cross examination.

Q Then . . . at all times during the trial, even if I took the witness stand, your strategy was to alleviate the prejudicial effect of the prosecution bringing out at trial the felony convictions; that was your strategy?

A That's a fair statement of it.

Q Then why when I took the stand you didn't bring out the fact again that I had a prior criminal record?

A Well, I did, Thomas.

Q No. If

...