Kuenzel v. Allen

• Decision Date: 16 December 2009
• Docket Number: Case No. 1:00–cv–316–IPJ–TMP.
• Parties: William Ernest KUENZEL, Petitioner, v. Richard F. ALLEN, Commissioner of the Alabama Department of Corrections, and the Attorney General of the State of Alabama, Respondents.
• Court: U.S. District Court — Northern District of Alabama

880 F.Supp.2d 1162

William Ernest KUENZEL, Petitioner,

v.Richard F. ALLEN, Commissioner of the Alabama Department of Corrections, and the Attorney General of the State of Alabama, Respondents.

Case No. 1:00–cv–316–IPJ–TMP.

United States District Court,

N.D. Alabama,

Eastern Division.

Dec. 16, 2009.

David A. Kochman, Reed Smith LLP, Jeffrey E. Glen, Anderson Kill & Olick PC, David Dretzin, New York, NY, Rick L. Burgess, Birmingham, AL, for Petitioner.

David R. Clark, Prattville, AL, Troy R. King, J. Clayton Crenshaw, James R. Houts, Office of the Attorney General, Montgomery, AL, for Respondents.

MEMORANDUM OPINION

INGE PRYTZ JOHNSON, District Judge.

This is an action by an Alabama state prisoner, William Ernest Kuenzel, pursuant to 28 U.S.C. § 2254. He challenges the constitutional validity of the conviction he received in the Talladega County Circuit Court on September 23, 1988, for capital murder, for which he was sentenced to death. The petitioner, with the assistance of an attorney, filed the instant petition for writ of habeas corpus on February 7, 2000. He is incarcerated on Death Row at Holman Correctional Facility in Atmore, Alabama.

This is the third time this court has found that the instant habeas petition is barred by the time limitation mandated in 28 U.S.C. § 2244(d). The first time, in September 2002, this court dismissed the petition as time-barred by § 2244(d). That decision was vacated and remanded for further proceedings consistent with the Eleventh Circuit Court of Appeals' opinion in Siebert v. Campbell, 334 F.3d 1018, 1032 (11th Cir.2003)(“Siebert I ”). On remand, this court in February 2006 determined that the intervening authority of Pace v. DiGuglielmo, 544 U.S. 408, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005), effectively overruled Siebert I and compelled the conclusion that the petition is barred by the one-year limitation of § 2244(d) because petitioner's untimely filed Rule 32 petition in state court had no tolling effect. Petitioner appealed that decision, which the Eleventh Circuit Court of Appeals vacated and remanded for further proceedings including the resolution of Kuenzel's assertion that he is actually innocent and thus excepted from the procedural bar described in Siebert II. Kuenzel v. Allen, 488 F.3d 1341 (11th Cir.2007).

I. PROCEDURAL HISTORY IN STATE COURT

On September 23, 1988, the petitioner was convicted after a jury trial for the capital murder of Linda Offord, a convenience store clerk who was shot to death in 1987 during a robbery. Evidence presented at trial can be summarized as follows:

Around 11:00 p.m. on the night of Monday, November 9, 1987, Linda Offord was shot to death at Joe Bob's convenience store in Sylacauga, Alabama, where she worked as a clerk. The petitioner was charged with capital murder. Petitioner's co-worker and roommate, Harvey Venn,¹ pleaded guilty to a lesser charge and testified at trial that he and Kuenzel had spent the afternoon and evening of the murder together, riding around Sylacauga in Venn's car. Both were drinking heavily, and Venn was smoking marijuana. He testified that they stopped more than once at Joe Bob's convenience store to use the restroom and buy cigarettes, and that Kuenzel suggested that they could get “easy money” by robbing the store. Venn stated that three guns were in his car that night—a 12–gauge shotgun Venn borrowed from Sam Gibbons, a 16–gauge shotgun Kuenzel had borrowed from his father,² and a pistol. Venn told jurors that after a night of riding around and heavy drinking, he and Kuenzel returned to the convenience store about 10:00 p.m. and waited for customers to clear out. Several witnesses testified that they saw Venn's car at the convenience store the night of the murder, and some identified Venn at the scene. They said Venn was with another man, whom they could not identify. Venn said he and Kuenzel left the store at some time after 10:00, but returned around 11:00. Venn testified that Kuenzel covered the car's license plate, retrieved a shotgun from the back seat of the car, and went into the store. Within a few seconds, Venn heard a shot and saw Offord fall off the stool where she was sitting at the cash register. He testified that Kuenzel got into the car and told him to “haul ass.” They left, and Venn said that Kuenzel told him he didn't mean to do it. They drove to Kuenzel's house and took the guns inside. Venn said that Kuenzel took the spent shell out of the shotgun, put in into a paper bag, and threw it into a garbage can in front of the residence where they burned trash. After listening to some music, Kuenzel told him “it was a shame that she had to get killed over some money that wasn't even hers.”

A co-worker testified that Venn and Kuenzel were together early in the evening, and came by the company where they worked to sell him some pills. A teenage girl who knew Venn and Kuenzel, April Harris, said she was riding in a car past the convenience store about 9:30 or 10:00 p.m. the night of the murder and could see Venn's car in the parking lot. She testified that she saw Venn and Kuenzel just inside the store.

Testimony indicated that Offord was shot with No. 1 buckshot fired from a 16–gauge shotgun. A shell fired from the Kuenzel gun was found in the rubbish bin outside Kuenzel's home. Also found in the search of Kuenzel's home was a notebook in which Kuenzel had written down what Venn had told police about the night of the murder.

The defense presented testimony from Glenn Kuenzel, who said that he went to petitioner's house around 10:30 the night of the murder, and saw through the window that Kuenzel was asleep on the sofa. The defense also offered testimony from Hope Champion, a visitor to Glenn Kuenzel's home, who said that petitioner and Venn had returned the 16–gauge shotgun the day before the murder. The defense further attacked Venn's credibility, showing that he had given prior inconsistent statements, and was also charged in the crime, but was accepting a plea deal.³ The defense rested after assurances from the defendant that he had decided not to testify.

There was no physical evidence linking Kuenzel to the crime scene. The only blood found was on Venn's left pants leg, and it was the same type as the victim's. Venn's shoes were also tested, and no blood was found on the shoes. A lot of blood was present at the crime scene, but none was on the customer side of the counter that Offord was behind. No. 1 buckshot pellets were removed from the scene, along with a piece of wadding from a 16–gauge shotgun.

The jury returned a verdict of guilty to the capital crime. After the penalty phase of the trial concluded, the jury recommended that petitioner be sentenced to death, and, on November 7, 1988, following the jury's 12–0 recommendation in favor of imposition of the death penalty, the trial judge sentenced petitioner to death by electrocution. Petitioner appealed his conviction to the Alabama Court of Criminal Appeals, which affirmed the conviction and sentence on June 29, 1990. Kuenzel v. State, 577 So.2d 474 (Ala.Cr.App.1990). On January 11, 1991, the Alabama Supreme Court affirmed the decision of the appellate court. Ex parte Kuenzel, 577 So.2d 531 (Ala.1991). A certificate of judgment was issued by the Alabama Court of Criminal Appeals on March 28, 1991. On October 7, 1991, the United States Supreme Court denied petitioner's application for writ of certiorari. Kuenzel v. Alabama, 502 U.S. 886, 112 S.Ct. 242, 116 L.Ed.2d 197 (1991)(Memo).

On October 4, 1993, petitioner filed a petition for post-conviction relief in the trial court pursuant to Rule 32 of the Alabama Rules of Criminal Procedure. The petition initially was denied on October 6, 1994, as time-barred under Rule 32.2(c), but on May 6, 1996, the trial court granted petitioner's motion to set aside the October 6, 1994, order. After an answer was filed and petitioner sought discovery, the State filed a motion to reinstate the October 6, 1994, order dismissing the petition as time-barred. On February 18, 1999, the trial court granted the State's motion and entered an order dismissing the petition as time-barred. Petitioner appealed the dismissal, which was affirmed by the Alabama Court of Criminal Appeals on January 28, 2000. He sought rehearing, but that was denied a month later, on February 25, 2000. He next sought review in the Alabama Supreme Court, which denied certiorari on July 28, 2000. The United States Supreme Court denied certiorari on January 16, 2001.

II. PROCEDURAL HISTORY IN FEDERAL COURT

On February 7, 2000, while still litigating his appeals from the dismissal of a Rule 32 petition in the Alabama state courts, the petitioner, represented by counsel, filed a motion in this court seeking a ruling that his one-year limitation period set forth in 28 U.S.C. § 2254 “is tolled until all state court proceedings and possible appeals therefrom” were exhausted. With the motion, he filed a habeas corpus petition, requesting that it be filed if the motion for tolling were denied. On February 15, 2000, the court denied the motion on the ground that it was premature, deemed the petition filed, treating it as a “place-holder” petition, and stayed proceedings pending notification that all appeals from the state court proceedings had been concluded.

On January 22, 2001, petitioner notified the court that the United States Supreme Court had denied certiorari of the appeal from the state Rule 32 denial. By order dated February 5, 2001, the court lifted the stay and gave petitioner 30 days in which to amend his petition. Petitioner filed an amended petition on March 23, 2001.

On June 15, 2001, respondents filed a motion to dismiss the petition, contending that the petition is time-barred by operation of 28 U.S.C. § 2244(d)(1) and, alternatively, that the claims are without merit. Petitioner filed a memorandum of law and a supplemental memorandum in opposition to the motion to dismiss. Respondents filed an answer on ...