VS.

KENNETH JONES,

et, al

IN THE UNITEDSTATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

CLARENCE WATERS

PETITIONER tr. J L

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RESPONDENTS

2: 06-CV-650-MEF

PETITIONER' S RESPONSE

TO RESPONDENT'S SECOND SUPPLENMENTAL ANSWER

COMES NOW THE ABOVE STYLED PETITIONER "CLARENCE WATERS" AND

FILES THIS HIS "PETITIONER'S RESPONSE TO RESPONDENT'S SECOND

SUPPLEMENTAL ANSWER" AND IN SUPPORT OF SAME THIS PETITIONER

WILL SHOW UNTO THIS HONORABLE COURT THE FOLLOWING TO WIT.

1. THE RESPONDENT IN IT"S "SECOND SUPPLEMENTAL ANSWER" DATED

FEBRUARY 20, 2008 STATES THAT THE PETITIONER HAS NOT EXHAUSTED

IN STATE COUR9H1S CLAIM RELATING TO THE LEGALITY OF HIS SENTENCE

2. THE PETITIONER ARGUES THAT BY THE RESPONDENTS OWN EXHIBITS

IN IT'S "SUPPLEMENTAL ANSWER" DATED OCTOBER 25, 2006 AND IT'S

"NOTICE OF ADDITIONAL EXHIBITS" DATED DECEMBER 11, 2006 CLEARLY

DISPUTES THE RESPONDENTS AtLEGATIONS OF NON-EXHAUSTION.

3. THE RESPONDENT ALSO IN IT'S "SUPPLEMENTAL ANSWER" DATED ON

FEBRUARY 20, 2008 STATES THAT FIRST, THE PE!ffITIONERS THIRTY (30)

YEAR SENTENCE WAS IMPOSED PURSUANT TO A GUILTY PLEA, AND THAT IF

A TRIAL COURT REFUSES TOABIDE BY THE TERMS OF A PLEA AGREEMENT IT

MUST GRANT THE DEFENDANT'S TIMELY MOTION TO WITHDRAW THE PLEA.

1

Case 2:06-cv-00650-MEF-SRW Document 30 Filed 02/27/2008 Page 1 of 6
4. THE PETITIONER ARGUES THAT, HE DID NOT CHALLENGE THE LEGALITY

OF A PLEA OF GUILTY, BECAUSE IN THE "STATES ANSWER TO PETITION

FORELIEF FROM CONVICTION OR SENTENCE" DATED SEPTEMBER 19, 2005

THE STATE OF ALABAMA CLEARLY STATED IN THAT MOTION THAT THE

PETITIONER UNDERSTOOD DURING HIS ORIGINAL PLEA THAT THERE WAS

NO PLEA AGREEMENT, WITH THE STATE OF ALABAMA AND THAT SENTENCING

WAS TOTALLY UP TO THE HONORABLE "TRACY McCOOEY" (SEE PAGE 3 OF

THE STATES ANSWEW]20 PETITION FOR RELIEF FROM CONVICTION OR SENTEN

DATED SEPTEMBER 19, 2005) PETITIONER'S EXHIBIT D ATTACHED FOR

THIS HONORABLE COURTS INSPECTION.

5. THE RESPONDENT CONTENDS FURTHER THAT IN IT'S "SECOND

SUPPLEMENTAL ANSWER" DATED FEBRUARY 20, 2008 THAT THE PETITIONERS PETITION FOR WRIT OF HABEAS CORPUS DOES NOT INDICATE THAT

THE PETITIONER FILED A "MOTION TO WITHDRAW GUILTY PLEA" AND THAT

THIS IMPLIES THAT THE PETITIONERS SENTENCE WAS NOT UNCONTEMPLATED

BY HIS PLEA OF GUILTY.

6. THE PETITIONER ARGUES THAT, THE RECORD CLEARLY SHOWS THAT

THE PETITIONER CLEARLY FILED A "MOTION TO WITHDRAW GUISLTY PLEA"

SEE PETITIONER'S EXHIBIT E (PAGE 2 OF THE CASE ACTION SUMMARY

SHEET)

7. THE RESPONDENT NEXT CONTENDS IN-IT'S "SECOND SUPPLEMENTAL

ANSWER" DATED FEBRUARY 20, 2008 THAT THE LACK OF ALABAMA

HABITUAL FELONY OFFENDER ACT (NOTICE) IS NOT A JURISDICTIONAL

ISSUE, AND THAT I'PHAS TOBE TIMELY RAISED IN ORDER NOT TO BE

WAIVED.

8. THE PETITIONER ARGUES THAT "EXCESSIVE SENTENCES" OR "SENTENCE

2

Case 2:06-cv-00650-MEF-SRW Document 30 Filed 02/27/2008 Page 2 of 6
NOT AUTHORIZED BY STATUTE" ARE IN DEED JURISDICTIONAL AND NOT

SUBJECT TOWAIVER SEE THE AUTHORITY OF JONES V. STATE 724 so 2d

75 (ALA. CRIM. APP.)

9. THE RESPONDENT NEXT CONTENDS IN IT'S ISECOND SUPPLEMENTAL

ANSWER T ' DATED FEBRUARY 20, 2008 THAT A "MOTION TO WITHDRAW

GUILTY PLEA" IS THE FUNCTIONALEQUIVALENT OF A "MOTION FOR NEW

TRIAL"

10. THE PETITIONER ARGUES THAT THE RECORD CLEARLY SHOWS THAT

THE PETITIONER FILED A "MOTION TO WITHDRAW GUILTY PLEA" SEE

PETITIONER'S EXHIBIT E PAGE 2 OF THE CASE ACTION SUMMARY SHEET

11. THE RESPONDENT IN IT'S FEBRUARY 20, 2008 "SECOND

SUPPLEMENTAL ANSWER" SUGGESTS TO THIS HONORABLE COURT THAT THE

PETITIONER IS ATTEMPTING TO RAISE "NOTICE" AS OPPOSED TO HIS

"UNAUTHORIZEDSENTENCE" CLAIM

12. THE PETITIONER ARGUES THAT THIS TACTICI BY THE RESPONDENT

IS AN ATTEMPT TO"MISLEAD" THIS HONORABLE COURT, AS SUCH, THE

PETITIONER REQUEST THAT THIS COURT ENTER A ORDER DIRECTING THE

RESPONDENT TO ONE AGAIN "SUPPLEMENT" IT'S ANSWER AND "SUPPLEMENT"

IT'S EXHIBITS WITH DOCUMENTS IT RELIED UPON AT THE PETITIONERS

FORMAL SENTENCING HEARING HELD ON MAY 12, 2005 TOENHANCE THE

PETITIONERS SENTENCE TO THIRTY(30) YERAS IMPRISONMENT.

13. THE RESPONDENT NEXT IN IT"S "SECOND SUPPLEMENTAL ANSWER"

DATED FEBRUARY 20, 2008 ATTACHES A "STATES EXHIBIT 7" TO IT'S

RESPONSE, IN AN ATTEMPT TO SHOW TMIS COURT THAT THE STATE OF

ALABAMA GAVE NOTICE TO THE PETITIONER OF IT'S INTENT TO USE PRIOR

3

Case 2:06-cv-00650-MEF-SRW Document 30 Filed 02/27/2008 Page 3 of 6
FELONY CONVICTIONS AND TO INVOKE SENTENCING ENHANCEMENTS

1$. THE PETITIONER ARGUES THAT, THE RESPONDENT CLEARLY STATES

ON PAGE 3 OF IT'S "SECOND SUPPLEMENTALANSWER" DATED FEBRUARY

20, 2008 TEAT IT'S "STATES EXHIBIT 7" WAS A COPY OF THE NOTICE

OF PRIOR FELONY CONVICTIONS PROVIDED TO THE PETITIONER PRIOR TO

THE ENTRY OF THE PETITIONER'S GUILTY PLEA

15. THE PETITIONER ARGUES THAT, CLEARLY THIS "STATES EXHIBIT 7"

FIRST, HAS NEVER BEEN PRODUCED BY THE STATE COURT IT'S RESPONSE

TO THE PETITIONERS RULE 32 PETITION, SECOND, HAS NEVER BEEN

PRODUCED BY THE RESPONDENT IN IT'S ANSWEROR ANY OF IT'S "SUPPLEMENATL ANSWERS, AND IS IN CLEAR VIIOLATION OF THIS HONORABLE

COURTS ORDER DATED FEBRUARY 5, 2008 IN WHICH THIS HONORABLE

COURT DIRECTED THE RESPONDENT TO FILE A "SUPPLEMENTAL ANSWER"

"SUPPORTED BY RELEVANT STATE COURT RECORDS ADDRESSING THE

PETITIONERS CHALLENGE TOHIS SENTENCE"

16. THE RESPONDENTS "STATES EXHIBIT 7" IS CLEARLY USED TO

MISLEAD THIS HONORABLE COURT, IS NOT RELEVANT TO STATE COURT

RECORDS, WHICH CLEARLY ADDRESSES THE PETITIONER'S CHALLENGE TO

HIS SENTENCE.

17. THE PETITIONER ASK THAT THIS HONORABLE COURT DIRECT THE

RESPONDENT TO"SUPPLEMENT" IT'S ANSWER AND "SUPPLEMENT" IT'S

EXHIBITS WITH A CERTIFIED COPY OF THE ACTUAL MINUTES OF THE

FORMAL SENTENCING HEARING HELD ON MAY 12, 2005 THE EXHIBIT OF

THE ACTUAL SENTENCING HEARING WILL FINALLY PUT TO REST ALL

FURTHER MISLEADING ALLEGATIONS OF THERESPONDENT,AND TO FORMALLY

$

Case 2:06-cv-00650-MEF-SRW Document 30 Filed 02/27/2008 Page 4 of 6
SHOW THIS HONORABLE COURT, THAT THE STATE OF ALABAMA CLEARLY

RELIED UPON THE "PRESENTENCE INVESTIGATION REPORT" TO SU2PLY

THE PETITIONER WITH THE PRIOR FELONY CONVICTION IT WAS USING TO

ENHANCE THE PETITIONER'S SENTENCE TO THIRTY (30) YEARS IMPRISONME,4±E.

DONE THIS THEEBRUARY 2008

RESPECTFULLY SUBMITTED

CIRENCE WATERS

AJfS# 132116

WILLIAM E. DONALDSON CORRECTIONAL FACT

100 WARRIOR LANE

BESSEMER, ALABAMA 35023-7299

5

Case 2:06-cv-00650-MEF-SRW Document 30 Filed 02/27/2008 Page 5 of 6
CERTIFICATE OF SERVICE

I HEREBY CEIFY THAT I HAVE SERVED A COPY OF THE ABOVE AND

FOREGOING UPON THE FOLLOWING BY PLACING A COPY IN THE UNITED

ST29ffiAIL POSTAGE PREPAID AND PROPERLY ADDRESSED THIS THE

OF FEBRUARY 2008MAS FOLLOWS

CC: HONORABLE STEPHEN N. DODD

ASSISTANT ATTORNEY GENERAL

STATE OF ALABAMA

OFFICE OF THE ATTORNEY GENERAL

11 SOUTH UNION STREET

MONTGOMERY, ALABAMA 36130

RESPECTFULLY SUBMITTED

CL R NCE WATERS

AIS# 132116

WILLIAM E. DONALDSON CORRECTIONAL FACI

100 WARRIOR LANE

BESSEMER, ALABAMA 35023-7299

6

Case 2:06-cv-00650-MEF-SRW Document 30 Filed 02/27/2008 Page 6 of 6
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CLARENCE WATERS,

Petitioner,

V.

STATE OF ALABAMA,

Respondent.

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RELIEF FROM CONVICTI

:1 I IN THE CIRCUIT COURT FOR THE FIFTEENTH JUDICIAL CIRCUIT

MONTGOMERY COUNTY, ALABAMA

SENTENCE

Comes now the State of Alabama, by and through its District Attorney for the Fifteenth

Judicial Circuit, Eleanor I. Brooks, and responds to the "Petition for Relief From Conviction or

Sentence" filed with this Honorable Court by the above named Defendant. The State

respectfully requests this Honorable Court to dismiss the Defendant's petition, and as grounds

therefore would show:

PROCEDURAL HISTORY

1. The Petitioner was indicted by the Montgomery County Grand Jury on or about

February 18, 2005 for one count of Stalking.

2. The Petitioner entered a guilty plea on or about March 24, 2005. On May 12, 2005,

the Petitioner was sentenced under the Habitual Felony Offender Act to 30 years

imprisonment, as the Petitioner had two prior felony convictions.

3. Petitioner's motion to withdraw his guilty plea was denied after full hearing on July

14, 2005.

4. The Petitioner then filed this Rule 32 Petition, the Petitioner's first Rule 32 Petition,

on August 10, 2005.

I

Case 2:06-cv-00650-MEF-SRW Document 30-2 Filed 02/27/2008 Page 1 of 6
BURDEN OF PROOF

Rule 32.6(b) Ala. R. Crim. P., requires that the petition contain a "clear and specific

statement of the grounds upon which relief is sought, including lull disclosure of the factual basis

of those grounds. A bare allegation that a constitutional right has been violated and mere

conclusions of law shall not be sufficient to warrant any further proceedings." Ala. R. Crim. P.

32.6(b). The petition must support every element of the claim with factual allegations. Dean v.

State, 570 S.2d 890 (Ala. Crim. App. 1990). When a petitioner fails to offer a set of facts upon

which relief may be sought, the Court may dismiss the petition. Lockett v. State, 644 S.2d

34 (Ala. 1994). The Petitioner failed to meet this burden, thus he is not entitled to an evidentiary

hearing on these claims.

ARGUMENT

1. The Petitioner's claim that the Petitioner's indictment is void because it fails

to show that twelve people voted to indict is without merit and is due to be

summarily dismissed.

The signature of the grand jury foreman signifies the concurrence of twelve or more

grand jurors. See Rule 12.8, Ala. R. Crim. P. Here, the Petitioner merely challenges the face of

the indictment because of the absence of an express recitation that twelve or more grand jurors

concurred in the indictment. The Petitioner fails to plead the actual fact of non-concurrence of

12 or more grand jurors. No rule or other law requires such a recitation on an indictment. See

Ex parte James, 813 S.2d 841, 842 (Ala. 2001)(J. Johnstone concurring specially). The

Petitioner has failed to state a recogmzable claim See Rule 32 3, Ala R Crim P Rule 32 7(d),

• Ala. R. Crim. P., states that if the court determines that the petition is not sufficiently specific, or

it fails to state a claim, or no material issue of law exists which would entitle the Petitioner to

relief under the rule, the court may dismiss the petition. Therefore, the Petitioner's claim is due

to be summarily dismissed.

2. The Petitioner's claim that his Rule 32 should be granted because his motion

to withdraw his guilty plea should have been granted is improperly brought here in

this Rule 32 and is an issue for the Alabama Court of Criminal Appeals. Further,

the claim is utterly without merit.

Case 2:06-cv-00650-MEF-SRW Document 30-2 Filed 02/27/2008 Page 2 of 6
The Petitioner alleges that his guilty plea was not valid and his motion to withdraw said

plea should have been granted. On March 24, 2005 the Petitioner pled guilty to Stalking and

admitted to his offense in open court after being advised of his rights and signing the plea form.

The Honorable Tracy McCooey took the plea and during the plea colloquy went over the

Petitioner's rights in detail and proceeded to question him regarding his guilt. The plea was held

to be knowing, voluntary, and intelligent. On July 14, 2005 a hearing was held on defendant's

motion to withdraw his plea. This motion was denied. The Petitioner has recourse to appeal that

decision to the Alabama Court of Criminal Appeals, however, a Rule 32 petition is not the proper

mechanism for doing this and it is due to be summarily dismissed. The case Petitioner cites is a

fine example of mental gymnastics but is not supportive of his claim but rather deals with

"conditional" guilty pleas. The Petitioner's claims of coercion by his attorney were raised ad

nauseam during his hearing on the motion to withdraw the plea and the trial judge found there to

be no evidence of this claim. The Petitioner's also claims that he would have taken his chances

with a jury had he known that he was not going to get probation. This also was covered in the

hearing of July 14, 2005. The Petitioner understood during his original plea that there was no

plea agreement with the State of Alabama and that sentencing was totally up to the Honorable

Tracy McCooey. He, under oath, stated that no one had promised him any sentence in order to

induce his guilty plea. It also perhaps betrays an ignorance of the laws of the State of Alabama

in that perhaps Petitioner is under the impression that a jury, after finding him guilty, which he

most certainly is, would have imposed a lesser sentence than that which he received on May 12,

2005. This is not the case as the jury would not have sentenced the Petitioner.

3. Petitioner's claim he was denied affective assistance of counsel is without

merit and offers nothing by way of proof save bald assertions.

To prevail on a claim of ineffective assistance of counsel, a defendant must show that his

counsel's performance was deficient and that he was prejudiced by that deficient performance.

Strickland v. Washington, 466 U.S. 668 (1984). When the Court is reviewing a claim of

ineffective assistance of counsel, it must indulge a strong presumption that counsel's conduct

was appropriate and reasonable. In Strickland, the United States Supreme Court said,

Case 2:06-cv-00650-MEF-SRW Document 30-2 Filed 02/27/2008 Page 3 of 6
Judicial scrutiny of counsel's performance must be highly deferential. It is all

too tempting for a defendant to second-guess counsel's assistance after

conviction or adverse sentence, and it is all too easy for a court, examining

counsel's defense after it has proved unsuccessful, to conclude that a particular

act, or omission of counsel was unreasonable. A fair assessment of attorney

performance requires that every effort be made to eliminate the distorting

effects of hindsight, to reconstruct the circumstances of counsel's challenged

conduct, and to evaluate the conduct from counsel's perspective at the time.

Because of the difficulties inherent in making the evaluation, a court must

indulge a strongpresumption that counsel's conduct fall within the wide range

of reasonable professional assistance; that is, the defendant must overcome the

presumption that, under the circumstances, the challenged action 'might be

considered sound trial strategy.' There are countless ways to provide effective

assistance in any given case. Even the best criminal defense attorneys would not

defend a particular client in the same way.

Strickland, 466 U.S. at 689 (internal citations omitted). "Counsel's conduct must be considered

within the context of the facts of the particular case and as of the time of the alleged

misconduct." Ex parte Baldwin, 456 S.2d 129, 134 (Ala. 1984), aff'd, 472 U.S. 373 (1985).

Even if deficient performance is proved, a showing of prejudice is also required. A

claimant must show that "but for" counsel's deficient performance the results of the proceedings

would have been different. Howard v. State, 551 S.2d 1155, 1158 (Ala. Crim. App. 1989).

Prejudice is proved only when there "exists a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different." Burnett v. State,

651 S.2d 57, 58 (Ala. Crim. App. 1994); citing Strickland, 466 U.S. at 694. To prove prejudice,

the alleged errors of counsel must upset the adversarial balance between defense and prosecution

so much so that the outcome of the case is rendered unfair. See Lockhart v. Fretwell, 506 U.S.

364, 369 (1993) (citing Kimmelan v. Morrison, 477 U.S. 365, 374 (1986)).

The Petitioner has failed to satisfy the two-prong test set out in Strickland. First, the

Petitioner has failed to prove deficient performance. The Petitioner was represented by a

competent attorney who ably and zealously represented the Petitioner. The Petitioner's attorney,

the Honorable Raymond Johnson, denied each and every claim of the Petitioner that he was

denied effective assistance of counsel during the hearing on Petitioner's Motion to Withdraw

Guilty Plea.

Case 2:06-cv-00650-MEF-SRW Document 30-2 Filed 02/27/2008 Page 4 of 6
Respectfully submitted on this the I day of September 2005.

ELEANOR I. BROOKS

DISTRICT ATTORNEY

Second, the Petitioner has failed to establish that he was prejudiced by the alleged

ineffective assistance of counsel. The Petitioner's statements of "Absolutely!" in response to his

rhetorical question as to whether he was denied effective assistance of counsel does not rise to

the legal standard required by Strickland. Nor do his assertions that the Honorable Tiernan W.

Luck III "cashed in" on his constitutional rights or that his plea was "blind" or that he was a

victim of "false pretenses" of a deal with the District Attorney. Not to mention the glaring

logical inconsistency contained in his fanciful argument that raises the question of how one can

enter into a blind plea with a deal for a suspended sentence a and probation at the same time.

Therefore, as the Petitioner has failed to prove both prongs of the Strickland test, he has failed to

prove ineffective assistance of counsel and his claims should be denied.

4. The Petitioner's claim that the Court was without jurisdiction to render the

judgment or to impose the sentence is without merit, and is due to be denied.

The Petitioner only presents bare allegations with no evidence to support these

allegations. A bare allegation that a constitutional right has been violated is not sufficient to

warrant any relief requested by the Petitioner. Ala. R. Crim. P., Rule 32.6(b). The petition must

support every element of the claim with factual allegations. Dean v. State, 570 S.2d 890. Since

the Petitioner has failed to offer a set of facts upon which relief may be sought, the Court may

dismiss the petition. See Lockett v. State, 644 S.2d. 34.

While the Petitioner has checked the ground that the court was without jurisdiction to

render the judgment on his Rule 32 form, he has presented no evidence in his attached statement.

Therefore, the Petitioner has failed to sufficiently plead this claim and it is due to be denied.

For the above reasons, this Petition is without merit and the Petitioner is not entitled to

the relief requested. Therefore, the State of Alabama moves this Honorable Court dismiss the

Petitioner's Rule 32 petition and deny any and all relief requested.

Case 2:06-cv-00650-MEF-SRW Document 30-2 Filed 02/27/2008 Page 5 of 6
ELEANOR I.

DISTRICL4

CERTIFICATE OF SERVICE

I hereby certify that a true copy of the foregoing has been served upon the Petitioner

Clarence Waters, AIS# 132116, P0 Box 150, Mt. Meigs, AL 36057-0150, served also to Kilby

Correctional Facility, P0 Box 4599, Montgomery, AL 36103-4599 by U.S. Mail, postage

prepaid and properly addressed, this the J day of September 2005.

Case 2:06-cv-00650-MEF-SRW Document 30-2 Filed 02/27/2008 Page 6 of 6
DATE FSTED: 11/02/2004

DATE FILED: 02/2:3/2005

DATE HEARING:

SUFTIES:

TI1E: (1000

TI 02(X) P

TYPE: R TYPE:

MONT(1ERY :36104

ACCt37Z PLAI3cIMA JJDICIit INFCTICt SYSTEM CASE: CC 2006 000275.'

OPER: D4 CASE ACTIC'1 SLThRY

PAGE: 1 CIRCUIT C:RIMIL RUN DATE: 02/23/210

IN THE CIRCUIT CQJT CF MCNTC1ERY ,JJDGE: T:

STATE OF ALAB1A

CASE: CC 2006 000275.00

VS WATEF CL.AINCE

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c*EENVIL.LE :3x37 (x)Q()

DCII3: 11/10/19 SEX: II RAC:E: Ec HT: 6 02 WI: 216 -f: 1K EYES: IBRI

SSN:, 4247EC'161 AL.IAS NftES: CARTER CLAFNC:E

= == == == == == == == == ! ==

CHARGEO1: STALKING OJDEO1: ST. LIT: STALKING TYP: F #: 00

OFFENSE DATE: 10/2i3/2004 AGENC:Y/OFFICER: tX)3C)100

DATE WAR/CAP 153:

DATE INDICTED: 02/18/2005

DATE RELEASED:

ECtID At1L1\tT: $100,000.00

DATE 1: DESC:

DATE 2: 03/C4/200 DESC: AG

TRACK ING ts*)S: G.J 2006 020201 C)) /

DEF/ATY: JC*-4NSCt RAYtIJND E

644) S. - MCDONGUGH ST.

PRDSEUJTOR:

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CCURT REPCTER: ______---- SID NO: CK)06979f4

DEF STATUS: JAIL DEM'JD: CIPER: D-1

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DATE ACTIONS JLDEEJENTS ?D NC(ES

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Case 2:06-cv-00650-MEF-SRW Document 30-3 Filed 02/27/2008 Page 1 of 4
State of Alabama

Unified Judicial System

Rev. 8/01

Style:

CITY OF MONTGOMERY v.

DATE

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CASE ACTION SUMMARY

CONTINUATION

ACTiONS, )UDG

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Case Number

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Case 2:06-cv-00650-MEF-SRW Document 30-3 Filed 02/27/2008 Page 2 of 4
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ARG69 ALABAMA JUDICIAL INFORMATION CENTE

CASE ACTI1]'1 SWtRV

O)NTINLTICM CASE: CC 2OO OOO275.

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DATE TION JJDGIENTS CASE rDTES

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