Smith v. Dunn

• Decision Date: 12 September 2019
• Docket Number: CASE NO. 2:15-cv-0384-AKK
• Parties: KENNETH EUGENE SMITH, Petitioner, v. JEFFERSON DUNN, Commissioner, Alabama Department of Corrections, and STEVE MARSHALL, Attorney General, State of Alabama, Respondents.
• Court: U.S. District Court — Northern District of Alabama

KENNETH EUGENE SMITH, Petitioner, v. JEFFERSON DUNN, Commissioner, Alabama Department of Corrections,and STEVE MARSHALL, Attorney General, State of Alabama, Respondents.

CASE NO. 2:15-cv-0384-AKK

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

September 12, 2019

MEMORANDUM OPINION

Kenneth Eugene Smith has petitioned for a writ of habeas corpus under 28 U.S.C. § 2254, challenging his 1996 capital murder conviction and death sentence in an Alabama state court. Smith alleges that a variety of constitutional violations require reversal of his conviction and/or sentence. The parties have fully briefed Smith's claims. After careful consideration of the record, the pleadings, and the applicable provisions of 28 U.S.C. § 2254, the court finds that Smith has not shown that he is due an evidentiary hearing on any of his claims, and he is not entitled to habeas relief. Accordingly, Smith's petition is due to be denied.

I. PROCEDURAL HISTORY

On April 7, 1988, Smith was indicted in the Colbert County Circuit Court on one count of capital murder for the death of Elizabeth Dorlene Sennett. Vol. 1, Tab 3 at 65-66.¹ The indictment charged that Smith intentionally killed Mrs. Sennett by beating her and stabbing her with a knife, for pecuniary consideration of one thousand dollars, in violation of Alabama Code § 13A-5-40(a)(7). Id. at 65. After a trial in Jefferson County, Alabama, due to a venue transfer because of "wide publicity in the newspaper, television and radio media," Vol. 40 at 839-40, a jury convicted Smith of capital murder in November 1989. Vol. 1, Tab 3 at 125. The jury recommended a death sentence by a vote of 10 to 2, id. at 126, which the trial judge accepted and sentenced Smith to death, id. at 130.

The Alabama Court of Criminal Appeals overturned Smith's conviction in 1992, due to a violation of Batson v. Kentucky, 476 U.S. 79 (1986). Smith v. State, 588 So. 2d 561 (Ala. Crim. App. 1991), on return to remand, 620 So. 2d 727 (Ala. Crim. App. 1992), on return to second remand, 620 So. 2d 732 (Ala. Crim. App. 1992). Smith was retried again in Jefferson County and convicted once again in April1996. Vol. 1, Tab 2 at 26. This time, the jury recommended by a vote of 11 to 1 a sentence of to life imprisonment without the possibility of parole. Vol. 1, Tab 3 at 114. However, the trial court overrode the jury's recommendation and sentenced Smith to death. Id. at 31-37.

The Alabama Court of Criminal Appeals affirmed Smith's conviction and death sentence, and denied his application for rehearing. Smith v. State, 908 So. 2d 273 (Ala. Crim. App. 2000). The Alabama Supreme Court initially granted Smith's certiorari petition on June 4, 2003, but subsequently quashed the writ, as having been improvidently granted. Ex parte Smith, 908 So. 2d 302 (Ala. 2005). The United States Supreme Court denied Smith's petition for a writ of certiorari. Smith v. Alabama, 546 U.S. 928 (2005).

Smith timely filed a Rule 32 petition in the Jefferson County Circuit Court to vacate his conviction and sentence, Vol. 31, Tab 55 at 245-328, and amended the petition three months later, Vol. 32, Tab 57 at 428-520. The state responded, Vol. 36, Tab 74, and, in September 2007, the trial court entered a joint consent order setting a schedule for discovery, for the filing of additional pleadings, and for a status conference, Vol. 32, Tab 59. The court indicated that it would enter a schedule for discovery and an evidentiary hearing after it ruled on Smith's discovery motion and the state's motion for partial dismissal. Vol. 32, Tab 59 at 529. Smith then filed amotion for discovery, Vol. 32, Tab 60, and the state filed a motion for partial dismissal, seeking summary disposition of many of the claims raised in the amended petition, Vol. 32, Tab 61. Thereafter, the state responded to Smith's motion for discovery,² and Smith filed an opposition to the motion for partial dismissal. Vol. 32, Tab 63 at 588 - Vol. 33 at 617; Vol. 32, Tab 62. Ultimately, the trial court denied Smith's motion for discovery and summarily denied his Rule 32 petition, Vol. 30, Tab 51 and Tab 52 at 9-55, and subsequently denied Smith's motion for reconsideration, Vol. 33, Tab 64 at 620-30; Vol. 33, Tab 65 at 667-69. On December 17, 2010, the Alabama Court of Criminal Appeals reversed the trial court and remanded the case to the trial court to address the allegations in Smith's amended Rule 32 petition.³ Smith v. State, 160 So. 2d 40 (Ala. Crim. App. 2010).

On remand, Smith filed a motion for discovery and an evidentiary hearing, Vol. 37, Tab 76 at 346-79, and the trial court granted the motion for discovery, Vol. 36, Tab 72 at 102-03. The trial court also entered an order directing Smith to "elaborate further" on several of his claims, and allowing him to "submit any affidavits that he may choose in support of each of his claims . . . in lieu of testimony in support of"those claims. Vol. 36, Tab 72 at 100-01. Smith complied, and filed a memorandum elaborating on his claims, along with four affidavits and numerous exhibits. Vol. 38, Tab 78 - Vol. 39, Tab 82. Thereafter, the state responded to Smith's request for an evidentiary hearing and the memorandum, Vol. 37, Tab 75, and Smith filed a reply further elaborating on his claims, Vol. 40, Tab 84. The trial court issued its return to remand, again denying Smith's petition. Vol. 36, Tab 73 at 104-48.

On February 10, 2012, the Court of Criminal Appeals remanded the case again "because the trial court failed to comply with Rule 32.9, Ala. R. Crim. P., when it summarily dismissed some of the claims on which it had already permitted Smith to present evidence." Smith v. State, 160 So. 3d 40, 53 (Ala. Crim. App. 2012). The court directed the trial court to "make specific findings relating to each material issue of fact presented on those claims involving the hair and the afghan on which the trial court permitted Smith to present evidence." Id. at 54. And, in response, the trial court issued its second return to remand, again denying the relief. Vol. 43, Tab 90. The Court of Criminal Appeals found that the trial court had made adequate fact findings as to one of the three claims, but not to the other two, and remanded the case again. Vol. 43, Tab 94.

On December 12, 2012, the trial court issued its third return to remand on the remaining claims. Vol. 43, Tab 96. The Court of Criminal Appeals affirmed the trialcourt, Vol. 44, Tab 100, and overruled Smith's application for rehearing, Vol. 45, Tab 102.

After the Alabama Supreme Court denied Smith's petition for writ of certiorari, Vol. 46, Tab 104, Smith filed a § 2254 petition in this court. Doc. 1. Thereafter, Respondents filed an answer and brief, docs. 21, 25, and Smith replied, doc. 31.

II. THE OFFENSE OF CONVICTION

In its opinion on direct appeal, the Court of Criminal Appeals summarized the evidence in the case:

The State's evidence tended to show the following. On March 18, 1988, the Reverend Charles Sennett, a minister in the Church of Christ, discovered the body of his wife, Elizabeth Dorlene Sennett, in their home on Coon Dog Cemetery Road in Colbert County. The coroner testified that Elizabeth Sennett had been stabbed eight times in the chest and once on each side of the neck, and had suffered numerous abrasions and cuts. It was the coroner's opinion that Sennett died of multiple stab wounds to the chest and neck.

The evidence established that Charles Sennett had recruited Billy Gray Williams, who in turn recruited Smith and John Forrest Parker, to kill his wife. He was to pay them each $1,000 in cash for killing Mrs. Sennett. There was testimony that Charles Sennett was involved in an affair, that he had incurred substantial debts, that he had taken out a large insurance policy on his wife, and that approximately one week after the murder, when the murder investigation started to focus on him as a suspect, Sennett committed suicide. Smith detailed the following in his confession to police:

About one month prior to March 18, 1988, I was contacted by Billy Williams. Billy came over to my houseand we talked out on the front porch. It was late afternoon. Billy said that he knew someone that wanted somebody hurt. Billy said that the person wanted to pay to have it done. Billy said the person would pay $1500 to do the job. I think I told Billy I would think about it and get back with him. Billy lives at the corner of Tuscaloosa Street and Cypress Street near the telephone company. Billy drives a red and white Thunderbird. Billy and I are good friends. Billy and I talked about this several times before I agreed to do it. I had already talked with John Parker about helping me.

I think I first met Charles Sennett about two weeks prior to the murder. Billy arranged the meeting. At the time I met Mr. Sennett I did not know who he was. I did not ask his name and he did not ask what my name was. Mr. Sennett told me that he wanted somebody taken care of. Mr. Sennett said that the person would be at home, that they never had any visitors. Mr. Sennett said that the house was out in the country. At that time I just listened to his proposal and told him I would get back with him. When we talked we sat in Mr. Sennett's truck in front of Billy's apartment. I gave him my phone number.

Mr. Sennett called me a couple of times to see if I had made a decision. Sometime between the Monday prior to the murder and the Thursday prior to the murder, Mr. Sennett learned that John and I would do what he wanted. I met with Mr. Sennett on Tuesday prior to the murder in the coffee[house] at ECM. At this meeting Mr. Sennett drew me a diagram of his house and told me that his wife and he would be out of town on Wednesday, to go down to the house and look around. By the time Sennett and I met at ECM I had learned through conversations with him that it was his wife that he wanted killed and the price agreed was $1,000 each - excuse me - $1,000 each for Billy Williams, John Parker and I.

The

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