Tillman v. Edwards
| Decision Date | 23 September 2021 |
| Docket Number | 2:18-cv-1043-KOB-GMB |
| Parties | TIMOTHY DANE TILLMAN, Petitioner, v. WARDEN GEORGE EDWARDS, et al., Respondents. |
| Court | U.S. District Court — Northern District of Alabama |
REPORT AND RECOMMENDATION
On July 1, 2018, Petitioner Timothy D. Tillman filed this habeas corpus action pro se pursuant to 28 U.S.C. § 2254. Doc. 1.[1] Tillman is an Alabama state prisoner serving a life sentence for murder. The action is before a Magistrate Judge for a report and recommendation pursuant to 28 U.S.C. § 636(b), Federal Rule of Civil Procedure 72(b), and Local Rule 72.1(b)(3)(A). For the following reasons, the Magistrate Judge recommends that the court deny Tillman's habeas petition.
A Grand Jury sitting within Shelby County, Alabama returned an indictment charging Tillman with the murder of his wife. Doc 11-1 at 3. After a jury convicted Tillman of murder, the trial court sentenced him to life imprisonment. Doc. 11-11 at 22-23, 31, 42-43. Bryan Stevenson and Charlotte Morrison, two attorneys with the Equal Justice Initiative, represented Tillman on direct appeal. Doc. 11-11 at 65-66. The Alabama Court of Criminal Appeals (“ACCA”) reversed Tillman's conviction (Doc. 11-7), the Alabama Supreme Court denied certiorari review, and the ACCA entered a certificate of judgment on February 10, 2012. Docs. 11-8 & 11-9.
On February 27, 2012, Tillman filed an affidavit asking the court to appoint him an attorney for his retrial. Doc. 11-12 at 43. Circuit Court Judge Dan Reeves agreed to appoint the Shelby County Public Defender's Office to represent Tillman, and Dennis Jacobs and Jodie Tallie were assigned to the case. Doc. 11-12 at 42-43.
On April 24, 2012, the court entered an order setting the case for a pretrial docket on May 8, 2012 and for trial on June 18, 2012. Doc. 11-12 at 50. The order informed the parties that no continuances would be granted except for extreme circumstances and also mentioned that the case would be placed on the court's trial docket for the next month and given a priority setting if any circumstances did necessitate a continuance. Doc. 11-12 at 50.
On May 1, 2012, the court held a status conference and determined that the case would remain on the June 18, 2012 trial docket. Doc. 11-12 at 48, 51. After the conference, the State filed a notice of intent to introduce Rule 404(b) evidence (Doc. 11-13 at 3-5), and defense counsel filed motions to exclude certain evidence. Doc. 11-13 at 7-8. Tillman's counsel also filed a response to the State's notice and a motion to suppress any evidence of Tillman's 1999 misdemeanor conviction for solicitation of prostitution in Minnesota. Doc. 11-13 at 9. The court set the motions for hearing on June 12, 2012. Doc. 11-12 at 50; Doc. 11-13 at 10.
On May 23, 2012, Tillman wrote a letter to ACCA Judge Sam Welch claiming that his counsel had just received three boxes of discovery and seven hours of video recordings. Doc. 11-26 at 92. Tillman did not have a pending case before Judge Welch at the time. In the letter, he asserted that Judge Reeves had set a trial date for June 18 and refused to grant a continuance. Doc. 11-26 at 92. Tillman stated that he needed the continuance to allow his attorney more time to prepare for trial, and because his wife was a key witness but her job would be in jeopardy if she missed work. Doc. 11-26 at 92. He also claimed that the State had been granted continuances before his first trial and said that he was asking for “simply 30-60 days.” Doc. 11-26 at 92-93. The ACCA received Tillman's letter on June 4, 2012.[2] Doc. 11-13 at 15.
Tillman contends that he met with his lawyers, Jacobs and Tallie, a few days before June 4, 2012 and told them that he wanted a continuance to allow David Schoen to represent him at trial.[3] Doc. 11-27 at 5-6. Tillman asserts that Jacobs told him that was not going happen and that Judge Reeves did not like him. Doc. 11-27 at 5. After further conversation, both Jacobs and Tallie reiterated that Judge Reeves would not grant the continuance. Doc. 11-27 at 6.
On June 11, 2012, defense counsel nevertheless filed a motion to continue the trial to August 13, 2012. Doc. 11-13 at 13. The grounds for the motion largely mirrored those in Tillman's letter to Judge Welch. More specifically, counsel argued that (1) Tillman's wife and parents could not be present for the trial scheduled on June 18, (2) Tillman did not believe his counsel had adequate time to prepare for trial between the date of the appellate decision and the June 18 setting, and (3) the State had recently disclosed a witness who claimed Tillman admitted “certain acts” that were extremely damaging to the defense and changed the defense theory and presentation of the case. Doc. 11-13 at 13. The court held a hearing June 12, 2012 during which counsel presented arguments on the pending evidentiary motions and the motion to continue. Doc. 11-13 at 14; Doc. 11-16 at 173. The trial court denied the motion to continue (Doc. 11-13 at 14; Doc. 11-16 at 173), but did not rule on the motions in limine or motion to suppress.
On Friday, June 15, 2012, the trial court received a pro se “official written notice” from Tillman, signed on June 12, 2012, stating that he wanted David Schoen to represent him as his “counsel of choice” at trial. Doc. 11-13 at 16. Tillman declared that Schoen had agreed to represent him pro bono, but could not be prepared for trial if it began as scheduled on the next Monday, June 18, 2012. Doc. 11-13 at 16. Tillman further claimed that Jacobs had expressed that he needed additional time to prepare for trial. Doc. 11-13 at 16. Tillman requested a continuance and to have Schoen represent him at trial. Doc. 11-13 at 17.
Attached to Tillman's notice was a declaration by Schoen dated June 13, 2012. Doc. 11-13 at 18. Schoen, an experienced criminal defense attorney licensed to practice in Alabama, detailed his introduction to Tillman by Charlotte Morrison in April 2012 and multiple contacts with Tillman and Jacobs from April 2012 through June 2012, including conversations with Jacobs about the possibility of representing Tillman, meeting with Tillman in prison, and work he had done on Tillman's behalf. Schoen stated that he told Jacobs he could not appear at trial on June 18 because of conflicting commitments, and had also mentioned that he did not understand how any lawyer could be prepared for trial in such a short timeframe. Doc. 11-13 at 20. Schoen ended by stating that he would represent Tillman pro bono, either with or without Jacobs, if he was afforded investigative funds and sufficient amount of time to prepare, which to Schoen meant a continuance to “at least the end of August 2012.” Doc. 11-13 at 22-31 (emphasis omitted).
The trial court did not address Tillman's letter before trial began on the next business day, June 18. However, after releasing the jury at the end of the first day, the State argued that Tillman's letter to the ACCA and his June 15 letter should be stricken from the record as improperly filed pleadings because the State had not received notice of them. Doc. 11-15 at 78. The trial court stated that it did not know whether it was necessary to address the letters because “communication [must] go through [Tillman's] attorney of record, not [Tillman] or through some other source.” Doc. 11-15 at 77-78. The trial considered Tillman's letter to be an attempt to move for a trial continuance. Doc. 11-15 at 77-78. Defense counsel responded that he was not party to the letter so he did not take a position on the requested relief. Doc. 11-15 at 78. The trial court struck the pleadings from the record. Doc. 11-15 at 78.
On June 21, 2012, after the State rested its case in chief, Tillman gave his counsel a handwritten copy of a renewed motion for continuance. Doc. 11-13 at 24. In it, he contended that no attorney could be adequately prepared for trial under the current time constraints given the volume of discovery the State had produced. Doc. 11-13 at 24. Tillman referenced his June 15 pro se motion and again attached Schoen's declaration, highlighting Schoen's opinion that he could not be prepared for trial and that no attorney could be prepared in such a short time. Doc. 11-13 at 25. Tillman argued that the trial court's refusal to grant him a continuance denied him his preferred counsel and rendered his current counsel ineffective. Doc. 11-13 at 25. Tillman's counsel presented the motion to the court. Doc 11-16 at 172.
The court brought counsel and Tillman to the bench. The court received the motion, but stated that the motion would be denied at that point in the trial. Doc. 11-16 at 174. He explained that he already denied a motion to continue that was argued by counsel on June 12, and he would not reconsider that ruling. Doc. 11-16 at 174. The State objected to Schoen's declaration on the basis that Schoen had not entered a notice of appearance and his declaration was “full of hearsay.” Doc. 11-16 at 174. In response, the court stated:
I advised Mr. Tillman on several occasions-each occasion that he came to Court that if he was going to hire a lawyer he needed to proceed to do that and not wait until the last minute and try to do that. That didn't happen. I'm not going to receive it now. Mr. Schoen needs to make some pleading on your behalf. He is certainly entitled to do that but not by way of a presentation to you as part of a motion. If counsel wants to make a proffer as to what was attached we can certainly mark that and put it in.
Doc. 11-16 at 174. Jacobs then stated that the “declaration is that myself could not possibly be effective assistance of counsel and prepared...
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