Taite v. Stewart

• Decision Date: 28 June 2015
• Docket Number: CIVIL ACTION NO. 13-00322-CG-N
• Parties: MARCUS ORLANDO TAITE, AIS #00180664, Petitioner, v. CYNTHIA STEWART, Warden, Fountain Correctional Facility, Respondent.
• Court: U.S. District Court — Southern District of Alabama

MARCUS ORLANDO TAITE, AIS #00180664, Petitioner, v. CYNTHIA STEWART, Warden, Fountain Correctional Facility, Respondent.

CIVIL ACTION NO. 13-00322-CG-N¹

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

June 28, 2015

REPORT AND RECOMMENDATIONS

Pending before the Court is the operative Petition for Writ of Habeas Corpus by a Person in State Custody under 28 U.S.C. § 2254(Doc. 27) filed by PetitionerMarcus Orlando Taite, an Alabama prisoner proceeding pro se.²The Respondent, through the Office of the Attorney General of Alabama, has filed an Answer (Doc. 62) to the petition, along with supplements as ordered (Docs. 73, 83).

Under S.D. Ala. GenLR72.2(b), Taite's habeas petition has been referred to the undersigned Magistrate Judge for entry of a recommendation as to the appropriate disposition, in accordance with 28 U.S.C. § 636(b)(1)(B)-(C),Rule 8(b) of the Rules Governing§ 2254Cases in the United States District Courts, and S.D.Ala. GenLR72(a)(2)(R).Upon consideration, the undersigned finds, and will recommend accordingly, that Taite's habeas petition (Doc. 27) is due to be DISMISSED as time-barred, and that Taite is due to be found not entitled either to a Certificate of Appealability or to proceed in forma pauperis on appeal.

I.Background

In November 1999, Taite³ was convicted by a jury of second degree burglary, in violation of Ala. Code § 13A-7-6, in the Circuit Court of Clarke County, Alabama(Case No. CC-1999-169); on December 21, 1999, he was sentenced to life imprisonment under Alabama's Habitual Felony Offender Act, Ala. Code § 13A-5-9, due to his three prior felony convictions.(SeeDoc. 62-1at 31;Doc. 62-5at 1;Doc. 83-5).Taite appealed, and the Alabama Court of Criminal Appeals affirmed by memorandum opinion issued June 23, 2000.⁴(Doc. 83-5);Taite v. State, No. CR-99-0781, 810 So. 2d 813(Ala. Crim. App.June 23, 2000)(Table).In its memorandum opinion, the Court of Criminal Appeals summarized the evidence presented at Taite's trial as follows:⁵

On May 12, 1998, Danny Joe Sims was living with his wife and two daughters in Clarke County, Alabama.On that day, Sims's home was burglarized and several unique firearms and personal items of jewelry were stolen.On May 13, 1998, Larry Colston an investigator with the Wilcox County Sheriff's Department, assisted Clarke County law enforcement officers in the search of a Wilcox County home belonging to Taite's grandmother.When the law enforcement officers arrived at the home, Ms. Taite gave her consent to search.After searching the home, the officers found Sims's bracelet and a pair of diamond earrings that belonged to one of his daughters.

Colston had become aware of Taite as a possible suspect in the burglary when he was contacted by an inmate in the Wilcox County jail named Nakia McCaskey.According to McCaskey he and Taite lived in the same community and the two men were acquaintances.McCaskey testified that while visiting Taite near Taite's grandmother's home, Taite gave him two gold necklaces.Taite did not tell McCaskey where he obtained the jewelry.Approximately two weeks later, McCaskey testified that Taite told him that he knew where guns were hidden in the woods and he also told McCaskey the location of the guns.

Lorenzo Smith testified that at approximately 6:00 a.m. on the day of the burglary, Taite picked him up in a van and the two men went to a wood mill in Clarke County to seek employment.The mill was not hiring, so Smith and Taite left.As Taite was taking Smith home, he stopped at a house and knocked on the door.Taite told Smith that he was going to "hit this house."Smith told Taite that he did not want to be a part of it and Taite drove Smith home.

Later that day, at approximately 5:30 or 6:00 pm, Taite picked Smith up in the same van and Taite had Smith help him unload some guns from the van.In return for his help, Taite gave Smith a .22 caliber pistol that was later determined to be a gun stolen from Sims's home.On September 4, 1998 McCaskey led Investigator Colston to a wooded area in Wilcox County where six of Sims's guns were recovered.Taite was subsequently arrested and charged with burglary in the second degree.

(Doc. 83-5at 1-2).

Taite did not file an application for rehearing with the Court of CriminalAppeals, which issued a Certificate of Judgment on July 11, 2000.⁶On August 26, 2002, Taite filed a petition for a writ of certiorari to the Alabama Supreme Court, which dismissed the petition on August 29, 2002.See(Doc. 83-7 [Docket Sheet of Court of Criminal Appeals Case #CR-99-0781]);Ala. R. App. P. 39(c)(1)-(2)(Except in certain inapplicable circumstances, "[t]he filing of an application for rehearing in the Court of Criminal Appeals is a prerequisite to review by certiorari in the Supreme Court...The petition for the writ of certiorari shall be filed with the clerk of the Supreme Court...within 14 days (2 weeks) of the decision of the Court of Criminal Appeals on the application for rehearing...").

On November 26, 2001, Taite, by then proceeding pro se, filed a motion for relief pursuant to Alabama Rule of Criminal Procedure 32 in Clarke County Circuit Court(Case No. CC-1999-000169.60), alleging, inter alia, that his conviction was illegally obtained through the "perjury testimony" of Smith and McCaskey, who were purportedly coerced by law enforcement officials and the trial prosecutor.(See Exhibit 1 attached hereto).⁷The State of Alabama filed its response in opposition tothe motion on January 10, 2002, and on January 14, 2002, the circuit court entered an order dismissing the petition.(See Exhibit 2 attached hereto).Taite did not file a notice of appeal of that order, instead continuing to file motions in his Rule 32 action throughout 2002, 2003, and early 2004, including numerous motions to amend his petition.Many of those motions were summarily denied by the circuit court.(SeeDocket of Clarke County Circuit Court CaseNo. CC-1999-000169.60, available via https://v2.alacourt.com/).On August 13, 2002, the State filed a response in opposition to one of Taite's filings, a motion the State identified as filed August 5, 2002, and styled "Amendment to Post Conviction Rule 32 Motion of Court Files."By order entered August 28, 2002, the circuit court denied "the petition for postconviction relief."(See Exhibit 3 attached hereto).

On February 12, 2004, the State again filed a response in opposition to the same August 5, 2002"Amendment to Post Conviction Rule 32 Motion of Court Files."By order dated February 17, 2004, the circuit court again denied "the petition of for [sic] post-conviction relief under Rule 32,Alabama Rules of Criminal Procedure."On February 18, 2004(under Alabama's prison mailbox rule), Taite filed a "Rebutter to Respondents to District Attorney," which the circuit court denied on March 18, 2004.(See Exhibit 4 attached hereto).The circuit court recorddoes not reflect Taite filing a notice of appeal of any of the circuit court's orders entered from 2002 through 2004.

After a period of inactivity, Taite filed another Rule 32 petition with the Clarke County Circuit Court on November 13, 2006(under Alabama's prison mailbox rule)(Case No. CC-1999-000169.61), alleging, inter alia, that his conviction and sentence should be set aside based on newly-discovered evidence; specifically: "[B]oth c/o defendants witness [sic][Smith and McCaskey] will state I never committed no burglary May 12/1998 and they was made [sic] to committ perjury in trial by [Clarke County District Attorney ]Robert Keahey and Sheriff Officer Larry Colston et al."(See Exhibit 5 attached hereto).The circuit court denied Taite's 2006Rule 32 petition on January 26, 2007.(SeeDoc. 83-9at 1; Exhibit 5 attached hereto).

Taite appealed the denial of his second Rule 32 petition, but the Court of Criminal Appeals dismissed the appeal for lack of jurisdiction by order and certificate of judgment issued April 2, 2007(Case No. CR-06-0905), finding that Taite had prematurely filed his notice of appeal one or two days prior to the circuit court's entry of its order denying Taite's petition, that the premature notice was not effective to invoke the appellate court's jurisdiction, and that Taite had not filed an effective notice of appeal following the circuit court's entry of its order.(Docs. 83-9, 83-10).Taite attempted to file another notice of appeal, but it was dismissed by the Court of Criminal Appeals as untimely (see Exhibit 6 attached hereto).⁸⁹

On April 25, 2013, Taite filed a document styled "Corpus Ward Nation State International Writ of Habeas Corpus," along with a number of attached exhibits, with the United States District Court for the Middle District of Alabama(Civil ActionNo. 2:13cv291-WHA).¹⁰(SeeDoc. 22at 4-28).That court ordered Taite to "file an amendment to his petition stating with specificity the judgment he seeks to challenge through his petition."(Id. at 30).Taite submitted multiple, largely incomprehensible filings in response to the court's order (seeid. at 31-52, 54-67, 69-76), along with the $5 filing fee for a habeas action.(Seeid. at 68).Nevertheless, the Middle District of Alabama was able to ascertain that Taite was a state prisoner challenging a criminal judgment handed down by the Clarke County Circuit Court, which is within this judicial district, see28 U.S.C. § 81(c)(2).Thus, the MiddleDistrict of Alabama ordered that Taite's habeas action be transferred to this Court under 28 U.S.C. § 2241(d).¹¹(SeeDoc. 22at 131).

Following transfer, on July 18, 2013, this Court ordered Taite to file a new § 2254 petition on the Court's form.¹²(SeeDoc. 25).Taite filed the present, operative § 2254 petition on this Court's form (Doc. 27) on July 24, 2013, and the undersigned ordered the petition served on the Respondent.(SeeDoc. 33at 2("The undersigned now, therefore, DIRECTS the Clerk to issue the standard order directing service of...