Tomlin v. Patterson

• Decision Date: 19 April 2018
• Docket Number: CIVIL ACTION NO. 10-120-CG-C
• Parties: PHILLIP WAYNE TOMLIN, Petitioner, v. TONY PATTERSON, Warden, Holman Correctional Facility, Respondent.
• Court: U.S. District Court — Southern District of Alabama

PHILLIP WAYNE TOMLIN, Petitioner, v. TONY PATTERSON, Warden,Holman Correctional Facility, Respondent.

CIVIL ACTION NO. 10-120-CG-C

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

April 19, 2018

ORDER

This case is before the Court on Petitioner Phillip Wayne Tomlin's ("Petitioner") first habeas corpus petition, in which he raises thirty claims challenging his conviction and sentence for the murder of two people on January 2, 1977. (Doc. 1). This Court previously denied Petitioner habeas relief (Doc. 32), but in doing so it failed to take into account his motion to supplement claim number 30 in light of Magwood v. Warden, Ala. Dept. of Corrections, 664 F.3d 1340 (2011). (Doc. 22). Petitioner appealed, and the Eleventh Circuit Court of Appeals vacated this Court's order without prejudice to resolve the issues Petitioner raised in Claim 30. (Doc. 40). The Court of Appeals specifically directs this Court "to (1) determine whether the ex post facto issues raised in Tomlin's § 2254 reply brief were properly before the judge; (2) if so, decide those issues; (3) issue a decision on Tomlin's motion to supplement his § 2254 petition; and (4) if the judge grants that motion, decide the ex post facto and due process, fair warning claims raised in Tomlin's proposed supplement." (Doc. 40, pp. 5-6).

Upon due consideration, the Court granted Petitioner's Motion for Supplemental Pleading in regard to the above issues. (Doc. 43, 45). Petitioner filed his supplemental brief (Doc. 46), Respondent answered (Doc. 47), and Petitioner replied (Doc. 48). All three documents are presently before the Court and ripe for consideration. For the reasons set forth below, Petitioner's habeas corpus petition is denied as to his ex post facto and due process, fair-warning claim, and the petition is denied in all other aspects.

I. BACKGROUND

On January 2, 1977, the Mobile County police found the bodies of Richard Brune and Cheryl Moore along an Interstate 10 exit ramp in Mobile County, Alabama. Both victims suffered multiple gunshot wounds and died as a result. Police later arrested John Daniels and Tomlin for the murders of Brune and Moore.¹

Tomlin was subsequently tried, convicted, and resentenced to death for the 1977 murders of Brune and Moore through four separate trials. Tomlin's first three convictions were reversed on direct appeal. Tomlin v. Alabama, 909 So. 2d 290, 290-91 (Ala. Crim. App. 2004). The courts reversed Tomlin's convictions followinghis first and second capital murder trials, in 1978 and 1990 respectively², because of prosecutorial misconduct. See Ex parte Tomlin, 540 So. 2d 668, 671 (Ala. 1988); Tomlin v. Alabama, 591 So. 2d 550, 559 (Ala. Crim. App. 1991).

On May 28, 1993, before his third capital murder trial, a grand jury re-indicted Petitioner in a single count indictment charging him with violation of Code of Alabama § 13-11-2(a)(10). That indictment, which controls Petitioner's present sentence, reads as follows:

COUNT 1

The GRAND JURY of [Mobile] County charge, that, before the finding of this indictment, Phillip Wayne Tomlin, whose name is to the Grand Jury otherwise unknown than as stated, did by one act or a series of acts, unlawfully, intentionally, and with malice aforethought, kill Richard Brune by shooting him with a gun, and unlawfully, intentionally and with malice aforethought, kill Cheryl Moore by shooting her with a gun, in violation of Code of Alabama 1975, § 13-11-2(10), against the peace and dignity of the State of Alabama.

(Doc. 9-1, p. 145). Petitioner was convicted of the capital murder charge, and the jury unanimously recommended life without parole. The trial judge, however, overrode the life verdict and sentenced Petitioner to death by electrocution on January 21, 1994. On June 21, 1996, The Alabama Court of Criminal Appeals reversed the conviction because of juror misconduct. Tomlin v. Alabama, 695 So. 2d 157, 174 (Ala. Crim. App. 1996), on reh'g (Sept. 27, 1996).

In June 1999, Petitioner was again tried under the May 28, 1993 indictment. This is the conviction at issue in this case. On August 8, 2000, after a sentencing hearing, the trial judge overrode the unanimous jury verdict of life without parole and sentenced Petitioner to death. See Tomlin v. Alabama, 909 So. 2d 213, 275 (Ala. Crim. App. 2002), rev'd in part sub nom. Ex parte Tomlin, 909 So. 2d 283 (Ala. 2003). On appeal, the Alabama Supreme Court affirmed his conviction but reduced his sentence to life imprisonment without parole. Ex parte Tomlin, 909 So. 2d 283, 286 (Ala. 2003). The Alabama Supreme Court found Petitioner's death sentence "illegal for the absence of an aggravating circumstance enumerated in section § 13-11-6." Ex parte Tomlin, 909 So. 2d at 289.

During state post-conviction proceedings, Petitioner argued unsuccessfully that his life sentence without parole violated ex post facto and due process principles under the United States and Alabama Constitutions.³ In his January2007 amended Rule 32 petition, Petitioner argued he is entitled to post-conviction relief because, as the Court of Criminal Appeals phrased it, "the trial court allegedly improperly sentenced him to imprisonment for life without the possibility of parole." (Doc. 12-10, p. 2). The Court of Criminal Appeals, affirming the circuit court's dismissal of the petition (Doc. 12-6, p. 15), concluded this claim is without merit because "the trial court complied with the Alabama Supreme Court's instructions and sentenced the appellant to imprisonment for life without the possibility of parole." (Doc. 12-10, p. 3). The state court complied with the Alabama Supreme Court's order to reduce Petitioner's sentence from death to life without parole. (Doc. 12-10).

In his habeas corpus petition, Petitioner argues that his sentence of life without parole is illegal because the state statutes applicable to his case require the finding of an aggravating circumstance before he could be charged with capital murder or such a sentence may be imposed. (Doc. 1 pp. 50-51). After filing his reply but before the magistrate judge issued her report and recommendation, Tomlin filed a motion for leave to file a supplemental pleading. (Doc. 22). His proposed supplemental pleading references the "Billy Joe Magwood Opinions," a series of cases scrutinizing the same Alabama statutes that appear in Tomlin's case, which reached the United States Supreme Court while his petition remained pending.⁴ (Doc. 22-1, p. 16). Petitioner brought this line of cases to the Court'sattention in his motion to supplement, but this Court failed to rule on the motion or fully address his ex post facto or fair-warning due process claims raised therein. The Court entered an order adopting the magistrate judge's report and recommendation denying the Petition. (Doc. 32). Petitioner appealed, and the 11th Circuit Court of Appeals reversed this Court's decision. (Doc. 40).

On remand from the Eleventh Circuit, this Court ordered supplemental briefing regarding the ex post facto and fair warning due process claims. (Doc. 43). In his supplemental brief, Petitioner asserts that his sentence violates the prohibition against ex post facto laws and the Fourteenth Amendment due process right to fair warning. (Doc. 46, p. 31). In support of this contention, Tomlin raises a two-pronged argument. First, he argues that a plain language interpretation of the Alabama Death Penalty Act of 1975 (the "1975 Act") precludes the state from charging him with capital murder or sentencing him to life imprisonment without parole because an Alabama Code § 13-11-6 aggravating circumstance was not and could not be averred in the indictment. Id. Second, he contends that such an indictment or sentence is possible only through the retroactive application of subsequent judicial decisions, which results in the constitutional violations specified above. Id. at 41. Respondent counters that Petitioner is precluded from presenting this claim in federal court because Petitioner "never presented [such arguments] tothe Alabama courts." (Doc. 47, p. 7). Alternatively, Respondent contends that the constitutional claim is without merit for two reasons. First, Respondent argues that Petitioner's case is factually distinguishable from the line of cases finding the constitutional violation presently alleged. Id. at 9. And second, "[a]lthough not eligible to receive a death sentence based only on the offense charged, when Tomlin was charged with a capital offense under § 13-11-2, he was clearly given notice he was subject to a minimum sentence of life in prison without parole." Id. at 16. "If no post-verdict aggravating circumstances were found, the statute provided for life imprisonment without parole for conviction" of a capital felony. Id.

In accordance with the remand order, this Court must first determine which claims are properly before it. (Doc. 40, p. 5).

II. Whether Petitioner's Claims are Properly Before the Court

In order to be properly before this Court, Petitioner must have exhausted his claims and followed all procedural prescriptions. The Court evaluates each requirement in turn.

a. Exhaustion of Claims

Section 2254 generally requires petitioners to exhaust all available state-law remedies. 28 U.S.C. § 2254(b)(1)(A). In that regard, "[a] petitioner must alert state courts to any federal claims to allow the state courts an opportunity to review and correct the claimed violations of his federal rights . . .. Thus, to exhaust state remedies fully the petitioner must make the state court aware that the claims asserted present federal constitutional issues." Lamarca v. Secretary, Dep't ofCorrections, 568 F.3d 929, 936 (11th Cir. 2009) (citations omitted). A federal court should dismiss a state prisoner's federal habeas petition if the prisoner has not exhausted all available state remedies as to his federal claims. See Roase v. Lundy, 455 U.S. 509 (1982); 28 U.S.C. 2254(b) (codifying this rule). The exhaustion...