IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF ALABAMA

SOUTHERN DIVISION

RALPH WILSON LINGO, )

)

 Petitioner, )

)

v. ) CIVIL ACTION NO. 1:06-CV-703-MHT

)

WILLIE R. COLLINS, et al., )

)

 Respondents. )

O R D E R

The respondents filed an answer on September 15, 2006 in accordance with the

provisions of Rule 5, Rules Governing Section 2254 Cases in the United States District

Courts, in which they contend that the present habeas corpus petition is due to be denied

because the claims raised therein are barred from review by this court. Specifically, the

respondents argue that all of the petitioner’s claims for relief, with the exception of his claim

that trial counsel failed to challenge the legality of the search warrant, are procedurally

defaulted because Lingo did not present these claims to the state courts in accordance with

the state’s procedural rules. See O’Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 144

L.Ed.2d 1 (1999); Smith v. Jones, 256 F.3d 1135, 1140-1146 (11 Cir. 2001), cert. denied,

th

534 U.S. 1136, 122 S.Ct. 1081, 151 L.Ed.2d 982 (2002); Brownlee v. Haley, 306 F.3d 1043,

1065 (11 Cir. 2002); Holladay v. Haley, 209 F.3d 1243, 1254 n. 9 (11 Cir.), cert denied,

th th

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531 U.S. 1017 (2000); Bailey v. Nagle, 172 F.3d 1299, 1303 (11 Cir. 1999); Collier v. th

Jones, 901 F.2d 770, 773 (11 Cir. 1990);Teague v. Lane, 489 U.S. 288 (1989). The th

respondents further argue that the aforementioned claim of ineffective assistance of trial

counsel entitles Lingo to no relief as this claim was properly adjudicated on the merits by the

state courts. Williams v. Taylor, 529 U.S. 362, 404-405, 120 S.Ct. 1495, 1518- 1523 (2000).

A procedural default bars consideration of the merits of a claim unless the petitioner

can establish "cause" for the failure to follow the state's procedural rules and show

"prejudice" resulting from this failure. See Edwards v. Carpenter, 529 U.S. 446, 451 (2000);

Wainwright v. Sykes, 433 U.S. 72 (1977). However, even if the petitioner fails to show cause

and prejudice, a procedural default will not preclude a federal court from considering a

habeas petitioner's federal constitutional claim where the petitioner is able to show that the

court's failure to address his claim would result in a "fundamental miscarriage of justice."

Schlup v. Delo, 513 U.S. 298, 320 (1995); Murray v. Carrier, 477 U.S. 478 (1986). The

miscarriage of justice exception allows federal courts to address procedurally defaulted

claims if the petitioner shows that "a constitutional violation has probably resulted in the

conviction of one who is actually innocent." Carrier, 477 U.S. at 496. 

With respect to the claim which has been adjudicated on the merits in the state courts,

28 U.S.C. § 2254(d)(1) places new constraints on the power of a federal district court to grant

a state prisoner’s application for habeas corpus relief. In sum, the statute directs that this

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court may grant a writ of habeas corpus only “if the relevant state-court decision was either

(1) ‘contrary to ... clearly established Federal law, as determined by the Supreme Court of

the United States,’ or (2) ‘involved an unreasonable application of ... clearly established

Federal law, as determined by the Supreme Court of the United States.’ (Emphases added.)”

Williams v. Taylor, 529 U.S. at 404-405, 120 S.Ct. at 1519. “Under § 2254(d)(1) and the

Williams decision, [a federal court] can grant relief only if the state court decision denying

relief is ‘contrary to’ clearly established federal law or is an ‘unreasonable application’ of

federal law.” Brown v. Head, 272 F.3d 1308, 1313 (11 Cir. 2001). In the vast majority of th

cases, a federal district court will be faced with the contention that the state court

unreasonably applied federal law. 

In determining whether the state court’s decision is an

unreasonable application of the law set out in [applicable]

Supreme Court decisions, we need not decide whether we would

have reached the same result as the state court if we had been

deciding the issue in the first instance. Instead, we decide only

whether the state court’s decision of the issue is objectively

unreasonably. See Williams v. Taylor, 529 U.S. 362, 411, 120

S.Ct. 1495, 1522, 146 L.Ed.2d 389 (2000) (“Under

§2254(d)(1)’s ‘unreasonable application’ clause, then, a federal

habeas court may not issue the writ simply because that court

concludes in its independent judgment that the relevant statecourt decision applied clearly established federal law

erroneously or incorrectly. Rather, that application must also be

unreasonable.”); Brown v. Head, 272 F.3d 1308, [1313] (11th

Cir. 2001)(“It is the objective reasonableness, not the

correctness per se, of the state court decision that we are to

decide.”).

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Wright v. Secretary for the Dept. of Corrections, 278 F.3d 1245, 1256 (11 Cir. 2002). th

Additionally, the statute makes it clear that a federal court cannot grant relief with respect

to claims adjudicated on the merits by the state courts “unless the adjudication of the claim

. . . resulted in a decision that was based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). 

Accordingly, it is

ORDERED that on or before October 10, 2006 the petitioner may file a response to

the answers filed by the respondents. Any pleadings, documents or evidence filed after this

date will not be considered by the court except in exceptional circumstances. The petitioner

is advised that at any time after October 10, 2006 the court shall "determine whether an

evidentiary hearing is required. If it appears that an evidentiary hearing is not required, the

[court] shall make such disposition of the petition as justice shall require." Rule 8(a), Rules

Governing Section 2254 Cases in the United States District Courts. 

The petitioner is instructed that when responding to the respondents' answers he may

file sworn affidavits or other documents in support of his claims. Affidavits should set forth

specific facts which demonstrate that the petitioner is entitled to relief on those grounds

presented in the habeas corpus petition. If documents which have not previously been filed

with the court are referred to in the affidavits, sworn or certified copies of those papers must

be attached to the affidavits or served with them. When the petitioner attacks the

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respondents' answers by use of affidavits or other documents, the court will, at the proper

time, consider whether to expand the record to include such materials. See Rule 7, Rules

Governing Section 2254 Cases in the United States District Courts. 

The petitioner is cautioned that in responding to the respondents' assertion that the

majority of his claims for relief are procedurally defaulted he must state specific reasons why

he failed to comply with the state's procedural rules or otherwise did not present or pursue

these claims in state court either at the trial court level, on appeal or in available postconviction proceedings. The petitioner is advised that the reasons presented must be legally

sufficient and that the facts surrounding or relating to the reasons for the failure must be

stated with specificity. If the petitioner asserts that this court should address the procedurally

defaulted claims under the fundamental miscarriage of justice exception, the petitioner must

show specific reasons for the application of this exception.

Done this 18 day of September, 2006. th

 /s/Charles S. Coody 

CHARLES S. COODY

CHIEF UNITED STATES MAGISTRATE JUDGE

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