IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF ALABAMA

SOUTHERN DIVISION

RALPH WILSON LINGO, )

)

 Petitioner, )

)

v. ) CIVIL ACTION NO. 1:06cv703-MHT

) (WO)

)

STATE OF ALABAMA, et al., )

)

 Respondents. )

RECOMMENDATION OF THE MAGISTRATE JUDGE

I. INTRODUCTION AND PROCEDURAL HISTORY

On November 4, 2004, Ralph Wilson Lingo (Lingo) was convicted of intimidating a

witness. The trial and conviction took place in the Circuit Court of Houston County,

Alabama. Lingo was sentenced as a habitual felony offender to twenty years’ imprisonment.

On August 8, 2006, Lingo filed this 28 U.S.C. § 2254 petition for habeas corpus relief,

(Doc. No. 1, p. 15.) which he amended on October 2, 2006. (Doc. No. 18.) 

After his conviction in state court, Lingo filed a direct appeal, in which he raised the

following three claims:

(1) Whether the trial court erred in denying to give a jury instruction

on the lessor included offenses of criminal coercion and

tampering with a witness?

(2) Whether there was insufficient evidence to warrant a motion for

judgment of acquittal of intimidating a witness? 

(3) Whether trial counsel’s assistance at trial was ineffective?

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(Doc. No. 10, State’s Ex. B, p. 2.) On June 10, 2005, the Alabama Court of Criminal

Appeals affirmed Lingo’s conviction in a memorandum opinion. (State’s Ex. D.) On August

12, 2005, the Alabama Supreme Court denied Lingo’s petition for a writ of certiorari.

(State’s Ex. F.)

In his amended § 2254 petition, Lingo presents the following claims: 

(1) He received the ineffective assistance of trial counsel based on

the following:

(a) Trial counsel failed to call defense witnesses as

requested;

(b) Trial counsel failed to question Lingo’s wife

concerning their common-law marriage or

otherwise establish the spousal privilege;

(c) Trial counsel failed to object in a proper manner

concerning the trial court’s failure to instruct on

the lesser-included offenses of criminal coercion

and tampering with a witness.

(d) Trial counsel failed to question the Houston

County Police investigator concerning his arrest

of Lingo in Henry County without first

domesticating the warrant.

(e) Trial counsel’s cross-examination of the State’s

witnesses prejudiced his case.

(2) The court failed to give instructions on the lesser-included

offenses of coercion of a witness or tampering with a witness in

violation of his constitutional rights.

(3) The court erred in allowing his common-law wife to testify

against him at trial in violation of the spousal privilege and

constitutional law.

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 1

 In Lingo’s amended petition, he lists the aforementioned claims as Claims Three, Four, Five, Six, Seven,

and Eight. However, for clarity’s sake, the court has summarized Lingo’s arguments and renumbered the

petitioner’s contentions as Claims One through Six. 

3

(4) The trial court violated his constitutional rights by allowing his

statements to an Alabama Department of Corrections

investigator, which were made outside the presence of his

attorney, to be introduced at trial. 

(5) His sentence of twenty years’ imprisonment under the Alabama

Habitual Felony Offender Act is excessive. Specifically, he

asserts that the enhancements were based on prior misdemeanor

offenses, a case in which he was acquitted, and charges which

had yet to be adjudicated.

(6) He was subjected to an illegal arrest in Henry County because

the arresting officer, a detective from the City of Dothan police

department in Houston County, failed to properly domesticate

the warrant and executed the warrant outside of his jurisdiction.

(Doc. No. 18, pp. 3-8.)1

 The respondents filed an answer in which they argue that Lingo’s

claims are either procedurally defaulted or were properly adjudicated by the state courts.

(Doc. No. 21.)

Upon review of the amended § 2254 petition, the answer of the respondents and

Lingo’s response to the answer, the court concludes that no evidentiary hearing is required

and that the petition is due to be denied in accordance with the provisions of Rule 8(a), Rules

Governing Section 2254 Cases in United States District Courts. 

II. DISCUSSION OF THE CLAIMS

A. The State Law Claim

Lingo argues that the trial court erred in failing to instruct the jury on the lesserCase 1:06-cv-00703-MHT-CSC Document 67 Filed 08/18/2008 Page 3 of 24
 2 After the Alabama Court of Criminal Appeals initially noted that defense counsel’s general objection

on the grounds that the trial court had not instructed the jury on criminal coercion and tampering with a

witness did not preserve Lingo’s argument for review, the state court discussed the trial court’s response to

the objection, conducted a thorough analysis of the claim, and determined that Lingo’s contention was

without merit. (State’s Ex. D, pp. 5-6) 

The procedural default doctrine ensures that "state courts have had the first opportunity to hear the

claim sought to be vindicated in a federal habeas proceeding." Picard v. Connor, 404 U.S. 270, 276 (1971).

In Wainwright v. Sykes, 433 U.S. 72 (1977), the Court held that consideration of a claim in a petition for

habeas corpus can be barred by failure to comply with state procedural rules, unless the petitioner makes a

showing of cause for the failure and prejudice resulting from the failure. In Harris v. Reed, 489 U.S. 255

(1989), the Court emphasized that a federal court has the responsibility to determine whether a state court in

fact based its denial of relief on procedural grounds. Adopting the Michigan v. Long, 463 U.S. 1032 (1983),

plain statement rule, the Court held that if a state court issues a "plain statement" that its decision rests on

independent and adequate state grounds, a federal court should not address the merits of the federal claim.

Harris v. Reed, supra. However, if a state court's reasons for rejecting a claim are ambiguous such that a

federal court cannot determine whether the decision is based on procedural grounds or the merits, federal

review is not precluded. Id. 

 Because the state court further discussed the trial court’s exhaustive response to the objection,

conducted an analysis of the claim on the merits, and concluded that Lingo’s argument concerning the lesserincluded offenses was without merit, this court will treat Lingo’s contention as an adjudicated claim. 

4

included offenses of criminal coercion and tampering with a witness. On direct appeal, the

Alabama Court of Criminal Appeals applied state law and determined that the trial court

properly instructed the jury.2

 (State’s Ex. D, p. 6.) The fact that a jury instruction was

allegedly incorrect under state law is not a basis for federal relief. See Estelle v. McGuire,

502 U.S. 62, 71 (1991); Erickson v. Secretary for Dept. of Corrections, 243 Fed.Appx. 524,

528, 2007 WL 2212682, 4 (11th Cir. 2007) (“Where the claim is merely that a jury instruction

was incorrect under state law, federal habeas relief is not available.”) Accordingly, Lingo’s

request for habeas relief on this claim is not warranted.

B. The Adjudicated Claims

Lingo’s request for federal habeas relief is governed by 28 U.S.C. § 2254, as amended

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by the Anti-Terrorism and Effective Death Penalty Act. Price v. Vincent, 538 U.S. 634

(2003) (“A habeas petitioner whose claim was adjudicated on the merits in state court is not

entitled to relief in federal court unless he meets the requirements of 28 U.S.C. § 2254(d).”);

Williams v. Taylor, 529 U.S. 362, 402 (2000). Under the provisions of 28 U.S.C. § 2254(d),

with respect to claims adjudicated on the merits in state court, federal habeas relief from a

state court judgment may not be granted unless the adjudication of the claims:

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

(2) 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.

In Williams v. Taylor, 529 U.S. 362, 412 (2000), the Court held that:

Under the “contrary to” clause a federal court may grant the writ

if the state court arrives at a conclusion opposite to that reached

by this Court on a question of law or if the state court decides a

case differently than this Court has on a set of materially

indistinguishable facts. Under the “unreasonable application”

clause, a federal habeas court may grant the writ if the state

court identifies the correct governing legal principle from this

Court’s decisions but unreasonably applies that principle to the

facts of the prisoner’s case.

The Court explained that habeas relief is appropriate when a petitioner demonstrates

“that a decision by a state court is ‘contrary to’ . . . clearly established [Supreme Court] law

if it ‘applies a rule that contradicts the governing law set forth in [the Supreme Court’s]

cases’ or if it ‘confronts a set of facts that are materially indistinguishable from a decision

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of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court]

precedent.’ Williams v. Taylor, 529 U.S. [at] 405-406.” Price, 538 U.S. at 640 (2003).

Additionally, federal review in a habeas action “is limited to whether the state court's

decision was objectively unreasonable in the light of clearly established federal law.

Williams, [529 U.S. at 409].” Hawkins v. Alabama, 318 F.3d 1302, 1310 (11th Cir. 2003);

Parker v. Head, 244 F.3d 831, 835 (11th Cir. 2001), citing Williams, supra (“[F]ederal habeas

relief [is] available under the ‘unreasonable application’ standard only if the state court’s

application of clearly established federal law was ‘objectively unreasonable.’”). A federal

district court is not to decide “the correctness per se . . . of the state court decision” but only

the “objective reasonableness” of such decision. Brown v. Head, 272 F.3d 1308, 1313 (11th

Cir. 2001). Moreover, “an unreasonable application of federal law is different from an

incorrect application of federal law.” Williams, 529 U.S. at 410 (emphasis in original).

“Under § 2254(d)(1)’s ‘unreasonable application’ clause, . . . a federal habeas court may not

issue the writ simply because that court concludes in its independent judgment that the

relevant state-court decision applied clearly established federal law erroneously or

incorrectly. Rather, that application must also be unreasonable.” 529 U.S. at 411. 

Federal district courts are likewise directed to determine whether the state court based

its findings 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). A state court’s determinations of

fact shall be “presumed to be correct,” and the habeas petitioner “shall have the burden of

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 3 (State’s Ex. D, p. 10.)

7

rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. §

2254(e)(1). However, even when the state court addresses a question of law, this court is not

authorized “to evaluate [a petitioner’s] claim de novo rather than through the lens of §

2254(d).” Price, 538 U.S. at 639. The Supreme Court admonishes that such evaluation

“exceeds the limits imposed on federal habeas review by 28 U.S.C. § 2254(d) . . .” 538 U.S.

at 636. 

1. Sufficiency of the Evidence

To the extent Lingo asserts that the evidence was insufficient to convict him of

intimidating a witness, this court concludes that the petitioner’s request for relief is due to

be denied. The Supreme Court’s decision in Jackson v. Virginia, 443 U.S. 307 (1979), sets

forth the clearly established federal law on this issue. Thus, this court will decide whether

the Alabama Court of Criminal Appeal’s determination that, “[b]ased on the evidence

presented, the jury could have reasonably concluded that [Lingo] was guilty of intimidating

a witness”3

 resulted “in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme Court of the

United States.” 28 U.S.C. § 2254(d)(1). 

In its memorandum opinion, the Alabama Court of Criminal Appeals summarized the

testimony of the victim, Debra Blackstone (“Blackstone”), including testimony that she

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received an unsigned letter along with attached copies of risque photographs of her

approximately one week after signing a warrant against Lingo for harassing communications.

A former employee also testified that she transcribed the letter for Lingo. The letter included

the following statements:

You brought this on your own self. No one has seen these. You tricked

me and you did something very, very wrong. I still have the phone tape. I can

ruin you real badly with fraud counts against you with the internal revenue.

You love blacks, and cops but you don’t think more that 3,000 of these will be

placed all over Dothan. Every stop sign, light poles, just think again. Copies

are made. You better see me or I will have to start defending myself.

I do not want any trouble with you. You know the law is on me real

bad, trying to get anything on me. You know all about it, but I ain’t guilty. I

was framed and set up by Sue. I didn’t know anything about it until it was all

over with. I told the internal revenue a little about you, but not enough to get

you in any trouble. I would never do that unless I was forced to.

4 out of 20 pictures.

You know I can hurt you by a lot of people you ran off from my

[business], that you have cussed out. I know at least three of those people

want to sign warrants on you right now. I know why you did all of this is

because of you lover, so here’s the way it will go. You can keep your black

lovers, your cop lovers. I haven’t done anything but help you and giving you

money. Yes I was trying to fight to keep you, and to make sure you had your

medication, money, and whatever your kid needed. I will never call you again.

I will never contact you again. You drop your phony warrant or you will be

sued at the right time and be arrested with [warrants] against you. I will push

the internal revenue to step in to investigate you. [A]lso GE to investigate you

also. I will do whatever it takes to ruin you, destroy you, your name. You

have lied on me, and tricked me with a phone call, and there’s some stuff on

you I won’t mention. If you don’t want to go down you better back off from

me. I will be going to have a meeting with my investigators and I will put

them on the case. I kept you out of these trials like you asked me, but you

[will] be in 3 in the near future, under oath. These phone tapes will prove you

deal with a lot of customers. You want me to nail you but you remember the

fox. You know what this means. I am leaving and going to the beach this

weekend. I will have my cell phone with me. I don’t want to talk or see

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 4

 Section 13A-10-123, ALA. CODE 1975, provides:

(a) A person commits the crime of intimidating a witness if he attempts, by use

of a threat directed to a witness or person he believes will be called as a

witness in any official proceedings, to:

(1) Corruptly influence the testimony of that person;

(2) Induce that person to avoid legal process summoning him

to testify; or 

(3) Induce that person to absent himself from an official

proceeding to which he has been legally summoned.

(b) “Threat,” as used in this section, means any threat proscribed by Section

9

anyone but you face to face, to talk out our differences. You know my

number. I am very depressed. I have cried a million tears over you.

I am not threatening you in no way. I am making you a promise. You

have 24 hours to see me face to face. And we will start to work to defending

myself against accusations which aren’t true. Debra this will be up to you.

You know my cell number. If you want to meet me to work this thing out,

then I’d be more than willing [to] show you I’m not joking with you. Three

of your family members will get a copy of the videotape and a copy of these

pictures along with copies of phone tapes, this weekend. I have not got any of

this in my possession. All it would take is a phone call and it will be delivered.

You have 24 hours for these to start [coming] out on you. You want to go to

the law, fine. We will also tell the law a lot of shit, too, and it won’t stop

there. I know you have these judges on your side, but you just don’t know

what I know. I don’t want any problems out of you. It’s your money and your

life. Do you want it all destroyed or a person to person talk to work all of this

out. I might not word this letter right, but one of your friends knows how to

contact me. This will be up to you. I will have to do what I have to do. Thank

you very much. We can work this out and go our [separate] ways.

Take this the way you want to take this. It’s your choice.

Thank you.

1-4 pages – you have copies of your pictures. Do what you want to do.

(State’s Ex. D, pp. 3-4; State’s Ex. A, C. 224-26.) In its analysis, the Alabama Court of

Criminal Appeals discussed the elements of intimidating a witness4

 and other applicable law

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13A-6-25 on criminal coercion.

10

when determining that, based on the evidence, the jury could have reasonably concluded that

Lingo was guilty of intimidating a witness.

 The critical inquiry on review of the sufficiency of the evidence to support a criminal

conviction is to determine whether the record evidence could reasonably support a finding

of guilt beyond a reasonable doubt. Jackson, supra.

But this inquiry does not require a court to “ask itself whether it believes that

the evidence at the trial established guilt beyond a reasonable doubt.” ...

[I]nstead, the relevant question is whether, after viewing the evidence in the

light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.

Id. at 318-19 (citations and footnote omitted). 

The Alabama Court of Criminal Appeals did not decide Lingo’s sufficiency claim

“differently than [the Supreme] Court has [in a case based] on a set a of materially

indistinguishable facts” nor did the state court apply a rule that contradicts governing federal

law. Williams, 529U.S. at 412. Consequently, the state appellate court’s determination was

not contrary to actual Supreme Court decisions. Moreover, a thorough review of the

evidentiary materials submitted in this case establishes that the rejection of Lingo’s

sufficiency claim by the state courts was objectively reasonable. The decision issued by the

Alabama Court of Criminal Appeals likewise constituted a reasonable determination of the

facts in light of the evidence presented by the parties. Lingo is therefore due no relief from

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this court on his sufficiency claims. 

2. The Ineffective-Assistance-of-Counsel Claims

On direct appeal, the Alabama Court of Criminal Appeals discussed several of Lingo’s

claims of ineffective assistance of trial counsel which were previously raised in a motion for

a new trial, including his contentions that trial counsel failed to call defense witnesses, failed

to question his wife concerning their common-law marriage, and failed to question a Houston

County Police officer regarding the arrest warrant. (Gov’s Ex. A, C. 195-201; Gov’s Ex. D,

p. 10.) Specifically, the court found as follows:

. . . In his unverified motion for new trial, he listed several

instances in which he contended that his counsel rendered

ineffective assistance. We have reviewed the record and the

appellant’s ineffective-assistance claims. Although he has made

several allegations, he has not satisfied his burden, under

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.

Ed. 2d 674 (1984), of proving that counsel’s performance was

deficient and that such allegedly deficient performance

prejudiced him. In fact, we note that many of the appellant’s

claims appear to relate to other judicial proceedings in which he

is involved rather than to this proceeding. Furthermore, the

record on appeal does not show that his trial counsel’s

performance was so deficient that it fell below an objective

standard of reasonableness. See Ex parte Jefferson, 749 So. 2d

406 (Ala. 1999). Accordingly, the appellant is not entitled to

relief on his ineffective-assistance-of-counsel claims.

(Gov’s Ex. D, p. 10.) 

The Alabama Court of Criminal Appeals applied Strickland v. Washington, 466 U.S.

668 (1984), in determining that Lingo’s claims of ineffective assistance of counsel were

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without merit. Strickland sets forth the clearly established federal law on this issue. Thus,

this court will determine whether the Alabama Court of Criminal Appeal’s rejection of

Lingo’s claims of ineffective assistance of trial counsel “resulted in a decision that was

contrary to, or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). 

The Sixth Amendment right to counsel exists to protect the fundamental right to a fair

trial. To prevail on a claim of ineffective assistance of counsel, a petitioner must satisfy both

prongs of the test articulated by the United States Supreme Court in Strickland v.

Washington, 466 U.S. 668 (1984). The performance prong requires a petitioner to establish

that counsel performed outside the wide range of reasonable professional assistance and

made errors so serious that he failed to function as the kind of counsel guaranteed by the

Sixth Amendment. Strickland, 466 U.S. at 687-89. The prejudice prong requires a petitioner

to demonstrate that seriously deficient performance of his counsel prejudiced the defense.

Id. at 687.

To succeed on a claim of ineffective assistance, a petitioner must first establish that

his attorney’s performance “fell below an objective standard of reasonableness.” Strickland,

466 U.S. at 688. “The proper measure of attorney performance remains simply

reasonableness under prevailing professional norms.” Id. In other words, criminal

defendants have a Sixth Amendment right to “reasonably effective” legal assistance. Roe v.

Flores-Ortega, 528 U.S. 470, 476 (2000) (quoting Strickland, 466 U.S. at 687). 

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There is a strong presumption that counsel’s performance was reasonable and

adequate, and great deference is shown to choices dictated by reasonable trial strategy.

Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994); see Strickland, 466 U.S. at 689. Review

of an ineffective-assistance-of-counsel claim is conducted from the perspective of defense

counsel, based on facts “as they were known to counsel at the time of the representation.”

U.S. v. Teague, 953 F.2d 1525, 1535 (11th Cir. 1992) (emphasis in original); see Strickland,

466 U.S. at 690. “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 that

time.” Strickland, 466 U.S. at 689.

The prejudice component of the Strickland test focuses on whether counsel’s deficient

performance renders the result of the trial unreliable or the proceeding fundamentally unfair.

See Strickland, 466 U.S. at 687. Unreliability or unfairness is not established if counsel’s

assistance did not deprive the defendant of any constitutionally protected right. Williams v.

Taylor, 529 U.S. 362, 393 n.17 (2000).

To establish prejudice, a petitioner must show that “there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would have been

different.” Strickland, 466 U.S. at 694. A “reasonable probability is a probability sufficient

to undermine confidence in the outcome.” Id. “[P]etitioners must affirmatively prove

prejudice because ‘[a]ttorney errors come in an infinite variety and are as likely to be utterly

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harmless in a particular case as they are to be prejudicial. [T]hat the errors had some

conceivable effect on the outcome of the proceeding’ is insufficient to show prejudice.”

Gilreath v. Head, 234 F.3d 547, 551 (11th Cir. 2000) (alteration in original) (quoting

Strickland, 466 U.S. at 693).

Unless a petitioner satisfies both prongs of the Strickland inquiry, relief should be

denied. Strickland, 466 U.S. at 687. Accordingly, a court need not “address both

components of the inquiry if the [petitioner] makes an insufficient showing on one.” Id. at

697. See, e.g., Duren v. Hopper, 161 F.3d 655, 660 (11th Cir. 1998) (“if a defendant cannot

satisfy the prejudice prong, the court need not address the performance prong”).

a. The Failure to Call Defense Witnesses Claim.

Lingo asserts that trial counsel failed to subpoena any defense witnesses. Specifically,

he alleges that Bobby Roberts (“Roberts”) and Billy Wallace (“Wallace”) would have

provided testimony indicating that the testimony of one of the State’s witnesses was not true.

Lingo, however, has failed to provide any evidence from Roberts or Wallace in support of

his allegations. More importantly, even assuming that trial counsel’s failure to call Roberts

or Wallace for impeachment purposes was somehow deficient, Lingo has not shown that

such failure prejudiced him in any way such that the jury would not have convicted him. See

Strickland, supra; Aikens v. McDonough, No. 8:05cv413-T-17TGW, 2007 WL 470420, * 8

(M.D. Fla. Feb. 13, 2007) (petitioner failed to demonstrate that trial counsel’s failure to

attack witness’ identification through impeachment resulted in prejudice under Strickland).

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 5

Lingo did not at trial and does not here present any evidence to prove the existence of a common law

marriage. That was his burden at trial, Crawford v. State, 629 So.2d 745 (Ala. Crim. App. 1993) and is his

burden here. See Romine v. Head, 253 F.3d 1349, 1357 (11th Cir. 2001) (Burden is on petitioner to prove

claimed violation).

15

The Alabama Court of Criminal Appeals’ rejection of this ineffective-assistance-of-counsel

claim was not an unreasonable application of the Strickland standard. See Williams v.

Taylor, supra. 

b. The Spousal Privilege Claim.

Lingo contends that trial counsel was ineffective for failing to question his commonlaw wife or otherwise introduce evidence indicating that her testimony was protected

pursuant to the spousal or marital privilege. First, the court questions whether the evidence

indicates that Blackstone was in fact Lingo’s common-law wife at the time of the criminal

proceedings.5

 She certainly was the victim of the intimidation. The state court’s summary

of the facts indicate that Blackstone testified that she and Lingo were married in January

1989 and divorced in January 1997. (Gov’s Ex. D, p. 1.) Nonetheless, even assuming a

recognizable common law marriage between Lingo and Blackstone, Alabama law provides

that a “husband and wife may testify for or against each other in criminal cases, but shall not

be compelled to do so.” ALA. CODE 1975 § 12-21-227. In addition, a defendant has no

federal constitutional right to bar his wife from testifying against him and no standing to

object when his wife refuses to invoke the spousal privilege. See Corbitt v. State, 596 So.

2d 426, 427 (Ala. Crim. App. 1991). See also Trammel v. United States, 445 U.S. 40, 53

(1980) (holding that “the witness-spouse alone has a privilege to refuse to testify adversely;

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 6 In their brief, the respondents rely on Smith v. State, 727 So. 2d 147, 158 (Ala. Crim. App. 1998), for

the proposition that, under the law in effect at the time of Lingo’s arrest, a law enforcement officer had the

authority to arrest a person with or without a warrant anywhere within the state. (Doc. No. 21, p. 12.)

Inexplicably, the respondents fail to point the court to Ex parte Borden, 769 So. 2d 950 (Ala. 2000), in which

the Alabama Supreme Court discredited Smith and held as follows:

We hold that a law enforcement officer may not obtain an arrest warrant in one

county and execute it in another county without also obtaining, before executing the warrant,

its endorsement by a judge or magistrate of the county where the arrest is to take place. This

16

the witness may be neither compelled to testify nor foreclosed from testifying”). Because

Blackstone did not invoke the spousal privilege and voluntarily testified against Lingo at

trial, trial counsel’s failure to object to Blackstone’s testimony or question her concerning

her marital status does not establish that counsel’s performance fell below and objective

standard of reasonableness and prejudiced Lingo’s case. See Strickland, supra; Corbitt, 596

So. 2d at 428. Therefore, the Alabama Court of Criminal Appeal’s determination that Lingo

failed to meet the requirements of Strickland v. Washington, supra, with respect to his claim

that trial counsel was ineffective for failing to cross-examine Lingo’s spouse concerning her

marital status was objectively reasonable. See Williams, supra.

c. The Warrant

Lingo asserts that trial counsel was ineffective for failing to cross-examine a Houston

County Police investigator regarding his failure to domesticate the warrant in Henry County

or otherwise challenge the arrest warrant on this basis. In Alabama, a law enforcement

officer may not obtain an arrest warrant in one county and execute it in another county

without also obtaining, before executing the warrant, its endorsement by a judge or

magistrate of the county where the arrest is to take place.6

 ALA. CODE, § 15-10-10 (1975);

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procedure is required by § 15-10-10, Ala. Code 1975. We have had prior cases holding to

the contrary, but these cases were based on a mistakenly expansive reading of Rule 3.3(a),

Ala. R. Crim. P. See . . . Smith v. State, 727 So. 2d 147 (Ala. Crim. App. 1998). . . .

769 So. 2d at 959.

17

Ex parte Borden, 769 So. 2d 950 (Ala. 2000). Exigent circumstances, however, may justify

an arrest without a domesticated warrant. See Borden, 769 So. 2d at 959-60. It is

unnecessary for this court to determine whether exigent circumstances existed at the time of

Lingo’s arrest because a jury found beyond a reasonable doubt that Lingo was guilty of

intimidating a witness. Consequently, Lingo has failed to demonstrate that he suffered

prejudice as the result of trial counsel’s failure to challenge the arrest warrant. See, e.g.,

Luckett v. Berghuis, No. 04cv73037-DT , 2006 WL 1779383, *9 (E.D. Mich. June 26, 2006)

(concluding trial counsel was not ineffective for failing to attack arrest warrant because

“[e]ven if the arrest warrant was facially invalid, a showing of probable cause that Petitioner

committed the charged offense was sufficient to justify the arrest”); Igbinoba v. Dretke, No.

3:02cv2038-L, 2005 WL 562549, *8 (N.D. Tex. March 9, 2005) (determining that petitioner

could not demonstrate prejudice with respect to his claim that trial counsel failed to request

production of the arrest warrant because the evidence clearly demonstrated petitioner’s guilt);

Lacey v. Burt, No. 02-71220, 2003 WL 22284559, *7 (E.D. Mich. 2003) (determining that

trial counsel was not ineffective for failing to challenge arrest warrant where petitioner was

found guilty beyond a reasonable doubt).

The deficient arrest about which Lingo complains took place in May 2003. (Doc. #

25 at 20) Lingo was indicted in September 2003; that indictment established probable cause

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to believe that he had committed the crime of intimidating a witness. Even if his arrest in

May was improper under Alabama law, it could have no adverse affect on the criminal

proceedings against him. Thus, the Alabama Court of Criminal Appeal’s rejection of Lingo’s

contention that trial counsel failed to question the investigator or otherwise challenge the

arrest warrant on the basis of the investigator’s failure to domesticate the warrant was not an

unreasonable application of the Strickland standard. See Williams, supra.

C. The Procedurally Defaulted Claims

Lingo’s remaining claims, including his contention that trial counsel was ineffective

because she asked the State’s witnesses prejudicial questions and failed to provide a more

specific objection concerning the trial court’s failure to instruct on the lesser-included

offenses, his challenges to the testimony provided by his alleged common-law wife and a

correctional investigator, and his claims of self-incrimination, excessive sentence,

prosecutorial misconduct, and an illegal arrest, are procedurally defaulted as these claims

were never presented to the state courts. See Teague v. Lane, 489 U.S. 288 (1989);

Henderson v. Haley, 353 F.3d 880 (11th Cir. 2003); Bailey v. Nagle, 172 F.3d 1299, 1303

(11th Cir. 1999).

This court may reach the merits of Lingo’s procedurally defaulted claims “only in two

narrow circumstances. First, a petitioner may obtain federal review of a procedurally

defaulted claim if he can show both ‘cause’ for the default and actual ‘prejudice’ resulting

from the default. See Murray v. Carrier, 477 U.S. 478, 485, 106 S. Ct. 2639, 2644, 91 L. Ed.

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2d 397 (1986); [Wainwright v.] Sykes, 433 U.S. [72,] 87 [(1977)].... Second, a federal court

may also grant a habeas petition on a procedurally defaulted claim, without a showing of

cause or prejudice, to correct a fundamental miscarriage of justice. Murray, 477 U.S. at 495-

96, 106 S. Ct. at 2678. A ‘fundamental miscarriage of justice’ occurs in an extraordinary

case, where a constitutional violation has resulted in the conviction of someone who is

actually innocent. Id.” Henderson, 353 F.3d at 892. 

1. Cause and Prejudice

“To establish ‘cause’ for procedural default, a petitioner must

demonstrate that some objective factor external to the defense impeded the

effort to raise the claim properly in the state court.” Wright v. Hopper, 169

F.3d 695, 703 (11th Cir.1999). To establish “prejudice,” a petitioner must

show that there is at least a reasonable probability that the result of the

proceeding would have been different. Id.; Crawford v. Head, 311 F.3d 1288,

1327-28 (11th Cir.2002). 

Henderson, 353 F.3d at 892. 

First, Lingo asserts that his procedural defaults should be excused because he was

incarcerated in a federal mental hospital between May 2005 and February 2006. Specifically,

he contends that he was unable to pursue a state post-conviction petition during this time due

to his mental and emotional state. (Doc. No. 25, p. 5.) Lingo also contends that he was

unable to file a state post-conviction petition because his attorney did not provide him notice

of the status of his appeal until November 5, 2005. (Id., pp. 5-6.) The record indicates that

the Alabama Supreme Court denied Lingo’s petition for a writ of certiorari on August 12,

2005. Thus, Lingo’s conviction for intimidating a witness became final, at the latest, on

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November 14, 2005, and the one year limitation period set forth in ALA.R.CRIM.P. 32.2(c)

began to run no later than November 15, 2005. See Rule 13.1, Rules of the United States

Supreme Court (a petition for writ of certiorari to the United States Supreme Court may only

be filed to review a judgment or order entered by a state court of last resort and must be filed

within ninety (90) days of the action undertaken by the aforementioned state court). Thus,

the time for filing a state post-conviction petition pursuant to ALA.R.CRIM.P 32 expired on

November 15, 2006. Therefore, Lingo had sufficient time after his release from the hospital

and after receiving notice of the status of his appeal to file a state post-conviction petition.

Moreover, the records indicate that Lingo was able to file both his initial and amended

federal habeas petitions within the applicable limitations period. Therefore, during the

periods relevant to the procedural defaults at issue, Lingo had the ability to prosecute his

post-conviction petitions in both state and federal court. Cf. Smith v. Holt, No. 3:05cv470-

MHT, 2008 WL 1929905, *21 (M.D. Ala. April 29, 2008) (determining that petitioner had

the ability to pursue state court actions during the relevant time period and that his diagnosis

of paranoid schizophrenia failed to establish cause for his procedural defaults).

Consequently, Lingo’s assertion that he was unable to file a state post-conviction petition

within the relevant time period because he did not receive notice of the status of his appeal

until November 2005 and was hospitalized until February 2006 does not demonstrate cause

for his procedural defaults. 

In addition, Lingo claims that his failure to present his claims to the trial court in a

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state post-conviction petition should be excused because he was not represented by an

attorney and did not have access to any legal assistance during his hospitalization in a federal

mental facility. A petitioner has no right to counsel in state post-conviction petition

proceedings. See Lawrence v. Florida, No. 05-8820, 2007 WL 505972, *6 (Feb. 20, 2007);

Pennsylvania v. Finley, 481 U.S. 551, 557 (1987). Thus, Lingo’s argument that he should

not be barred from presenting his claims because he was unrepresented during the time he

could have filed a state post-conviction proceedings fails to demonstrate sufficient cause for

his procedural defaults. 

Lingo also contends that his procedural defaults should be excused because he is

illiterate and has an eighth-grade education and a speech impediment. Illiteracy and lack of

education do not establish cause for a petitioner’s procedural default. McCoy v. Newsome,

953 F.2d 1252, 1258 (11th Cir. 1992); Smith v. Newsome, 876 F.2d 1461, 1466 (11th Cir.

1989). In addition, Lingo’s difficulty speaking does not excuse his procedural defaults. Cf.

Burtchett v. Idaho, 116 Fed. Appx. 835, 835 (9th Cir. 2004) (petitioner’s poor communication

skills did not establish cause for his procedural default); Bastista v. U.S. Dep’t of Justice,

129 Fed. Appx. 724, 725 (3d Cir. 2005) (petitioner’s inability to speak English did not

constitute cause for his procedural default).

Lingo’s argument that the state court failed to advise him about the proper route in

which to pursue a state post-conviction petition likewise fails to demonstrate cause for his

procedural defaults. Ignorance of the law fails to establish cause for a procedural default.

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Spencer v. Kemp, 781 F.2d 1458, 1462 (11th Cir. 1986). Consequently, Lingo’s contention

that he was unaware of the proper procedures in which to file a post-conviction petition fails

to demonstrate sufficient cause for his procedural defaults.

The court concludes that Lingo has failed to demonstrate the existence of cause for

the failure to present his federal habeas claims to the state courts in compliance with

applicable procedural rules and has likewise presented nothing which establishes the

existence of actual prejudice arising from infringement of federal law. Nevertheless, this

court may reach the merits of Lingo’s procedurally defaulted claims only if necessary to

prevent a fundamental miscarriage of justice. 

2. Fundamental Miscarriage of Justice

The miscarriage of justice standard is directly linked to actual innocence. Schlup v.

Delo, 513 U.S. 298, 321 (1995). Actual innocence is not an independent claim; rather, it is

the “gateway” through which a petitioner must pass before a court may consider

constitutional claims which are defaulted. Id., 513 U.S. at 315. This exception applies where

a petitioner establishes that “a constitutional violation has probably resulted in the conviction

of one who is actually innocent.” Murray v. Carrier, 477 U.S. 478, 496 (1986); Schlup v.

Delo, supra. “To establish actual innocence, [a habeas petitioner] must demonstrate that ...

‘it is more likely than not that no reasonable juror would have convicted him.’ Schlup v.

Delo, 513 U.S. 298, 327-328, 115 S. Ct. 851, 867-868, 130 L. Ed. 2d 808 (1995).” Bousley

v. U.S., 523 U.S. 614, 623 (1998). “[T]he Schlup standard is demanding and permits review

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only in the ‘“extraordinary’” case.” House v. Bell, 547 U.S. 518, 538 (2006). Thus, “[i]n the

usual case the presumed guilt of a prisoner convicted in state court counsels against federal

review of defaulted claims.” Id., 547 U.S. at 537. “It is important to note in this regard that

‘actual innocence’ means factual innocence, not mere legal insufficiency. See Sawyer v.

Whitley, 505 U.S. 333, 339, 112 S. Ct. 2514, 2518-2519, 120 L. Ed. 2d 269 (1992).”

Bousley, 523 U.S. at 623-624; Doe v. Menefee, 391 F.3d 147, 162 (2d Cir. 2004) (“As Schlup

makes clear, the issue before [a federal district] court is not legal innocence but factual

innocence.”). Schlup observes that “a substantial claim that constitutional error has caused

the conviction of an innocent person is extremely rare.... To be credible, such a claim

requires petitioner to support his allegations of constitutional error with new reliable

evidence -- whether it be exculpatory scientific evidence, trustworthy eyewitness accounts,

or critical physical evidence -- that was not presented at trial. Because such evidence is

obviously unavailable in the vast majority of cases, claims of actual innocence are rarely

successful.” 513 U.S. at 324.

Lingo has presented no reliable evidence nor suggested that any exists which could

satisfy the arduous standard set forth in Schlup. Consequently, Lingo’s procedurally

defaulted claims are foreclosed from federal habeas review.

III. CONCLUSION

Accordingly, it is the RECOMMENDATION of the Magistrate Judge that the petition

for habeas corpus relief filed by Ralph Wilson Lingo be denied and that this case be

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dismissed with prejudice. It is further 

ORDERED that on or before September 2, 2008 the parties may file objections to

the Recommendation. Any objections filed must specifically identify the findings in the

Magistrate Judge's Recommendation to which the party is objecting. Frivolous, conclusive

or general objections will not be considered by the District Court. The parties are advised

that this Recommendation is not a final order of the court and, therefore, it is not appealable.

Failure to file written objections to the proposed findings and advisements in the

Magistrate Judge's Recommendation shall bar the party from a de novo determination by the

District Court of issues covered in the Recommendation and shall bar the party from

attacking on appeal factual findings in the Recommendation accepted or adopted by the

District Court except upon grounds of plain error or manifest injustice. Nettles v.

Wainwright, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Sec., Inc., 667 F.2d 33

(11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981, en

banc), adopting as binding precedent all of the decisions of the former Fifth Circuit handed

down prior to the close of business on September 30, 1981.

Done this 18th day of August, 2008.

 /s/Charles S. Coody 

CHARLES S. COODY

UNITED STATES MAGISTRATE JUDGE

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