CLARENCE WATERS

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

PETITIONER

(

VS. CASE NO: 2:06-CV-6.5O-'M,T

T

KENNETH JONES

et al

RESPONDENT (

PETITIONER'S WRITTEN OBJECTIONS

COMES NOW THE ABOVE STYLED PETITIONER "CLARENCE WATERS" AND

FILES THIS HIS "PETITIONER'S WRITTEN OBJECTIONS" TO THE MAGISTRAT

JUDGE'S RECOMMENDATION AND IN SUPPORT OF SAME THIS PETITIONERWILL

SHOW UNTO THIS HONORABLE COURT THE FOLLOWING TO WIT.

1. ADJUDICATION OF INDICTMENT CLAIM BYTHE STATE COURTS

THIS HONORABLE COURT IN IT"S "RECOMMENDATION OF THE MAGISTRATE

JUDGE" CONTENDS THAT A HABEAS PETITION WHOSE CLAIM WAS ADJUDICATE

ON THE MERITS IN STATE COURT IS NOT ENTITLED TO RELIEF IN FEDERAL

COURT UNLESS HE MEETS THE REQUIREMENTS OF "28 USC 2254 (d)" SEE

PRICE V. VINCENT 538 US 634 638 123 s ct 1848 1852 (2003) SEE

ALSO WILLIAMS V. TAYLOR 529 US 362 402 120 s ct 1495 1518 (2000)

WITH RESPECT TO A CLAIM ADJUDICATED ON THE MERITS IN STATE COURT

FEDERAL HABEAS RELIEF FROM A STATE COURT JUDGEMENT MAY NOT BE

GRANTED UNLESS THE ADJUDICATION ON THE MERITS IN STATE COURT,

FEDERAL HABEAS RELIEF FROM A STATE COURT JUDGEMENT MAY NOT BE

GRANTED UNLESS THE ADJUDICATION OF THE CLAIM

1

Case 2:06-cv-00650-MEF-SRW Document 42 Filed 04/15/2008 Page 1 of 14
(1) RESULTED IN A DECISION THATWAS 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 THATWAS BASED ON AN UNREASONABLE

DETERMINATION OF THE FACTS IN LIGHT OF THE EVIDENCE PRESENTED

IN THE STATE COURT PROCEEDING

THE PETITIONER ARGUES THAT, IT IS POSITION THAT THE STATE COURT

BASED IT"S FINDINGS ON AN UNREASONABLE DETERMINATION OF THE FACTS

IN LIGHT OF THE EVUJDENCE PRESENTED IN THE STATE COURT PROCEEDINGS

"28 USC 2254 (d) (2)"

THE PETITIONER ARGUES THAT A STATE COURTS DETERMINATION OF FACT

SHALL BE PRESUMED TO BE CORRECT AND THE HABEAS PETITIONER SHALL

HAVE THE BURDEN OF REBUTTING THE PRESUMPTION OF CORRECTNESS BY

CLEAR AND CONVINCING EVIDENCE "28 USC 2254 (e) (1)"

THE PETITIONER ARGUES FURTHER THAT, THE TRIAL COURTLACKED

JURISDICTION TO RENDER JUDGEMENT BECAUSE THE INDICTMENT FAILED TO

CHARGE THE OFFENSE OF "STALKING" AS IT DOES NOT CHARGE IN THE

FACE OF THE INDICTMENT THE PERSON WHOM THE PETITIONER MADE A

CREADIBLE THREAT WITH INTENT TO PLACE THAT PERSON IN REASONABLE

FEAR OF DEATH OR SERIOUS BODILY HARM

THE PETITIONER ARGUES THAT, THE SUFFICIENCY OF A STATE COURT

INDICTMENT IS AN ISSUE ON FEDERAL HABEAS CORPUIS ONLY IF THE

INDICTMENT WAS SO DEFICIENT THAT THE CONVICTING COURT WAS DEPRIVE

OF JURISDICTION DEBENEDICTIS V. WAINWRIGHT 674 F2d 841 (11TH

CIR. 1982), HEATH V. JONES 863 F2d 815 821 (11TH CIR. 1989) SEE

ALSO BRANCH V. ESTELLE 631 F2d 1229 1233 (5TH CIR. 1980)

2

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THE PETITIONER ARGUES THAT THE STATE COURT CHOSE THE METHOD OF

INDICTMENT AS THE CHARGING INSTRUMENT, IT CHOSE TO GIVE THE

PETITIONER FAIR NOTICE OF THE CHARGES AGAINST HIM, TO PERMIT

ADEQUATE PREPERATION OF THE PETITIONERS DEFENSE JACKSON V.

VIRGINIA 443 US 307 314 (1979) FARETTA V. CALIFORNIA 422 US

806 818 (1975)

THE PETITIONER ARGUES THAT THE INDICTMENT ISSUED AGAINST THE

PETITIONER, ALTHOUGH IT TRACKED THE LANGUAGE OF THE STATE

"STALKING" STATUTE AND NAMED THE VICTIM OF SUCH OFFENSE, THIS

INDICTMENT FAILED TO ALLEDGE THE NAME OF THE PERSON TO WHOM THE

PETITIONER MADE A CREADIBLE THREAT WITH THE INTENT TO PLACE THAT

PERSON IN REASOBALE FEAR OF DEATH OR SERIOUS BODILY HARM

THE PETITIONER ARGUES THAT THE ALABAMA COURT OF CRIMINAL

APPEALS DECIDED THE PETITIONERS CHALLENGE TO THE VALIDITY OF THE

INDICTMENT TOTALLY DIFFERENT THAN OUR UNITED STATES SUPREME

COURT HAS, DECIDED OTHER CASES, ON A SET OF INDISTINGUISHABLE

FACTS, AND CLEARLY APPLIED A FINDING THAT CONTRADICTS GOVERNING

FEDERAL LAW, WILLIAMS V. TAYLOR 529 US at 413 120 s Ct at 1523

THE PETITIONER ARGUES THAT THE ALABAMA COURT OF CRIMINAL

APPEALS DECISION RESULTED IN A DECISION THAT WAS BASED ON AN

UNREASONBALE DETERMINATION OF THE FACTS IN LIGHT OF THE EVIDENCE

PRESENTED IBN THE STATE COURT PROCEEDINGS 28 USC 2254 (d) (2)

PRICE V. VINCENT 538 US 634 638 123 s ct 1848 1852 (2003)

THE PETITIONER ARGUES THAT, THH "DUE PROCESS CLAUSE" OF THE

FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION REQUIRES

NOT ONLY MUST THE STATE GIVE A CRIMINAL DEFENDANT FAIR NOTICE OF

THE CHARGESM AGAINST HIM, TO PERMIT ADEQUATE PREPERATION OF HIS

DEFENSE, JACKSON V. VIRGINIA 443 US 307 314 (1979), FARETTA V.

CALIFORNIA 422 US 806 818 (1975), BUT THE INDICTMENW MUST NOT

BE SO DEFICIENT THAT THE CONVICTING COURT WAS DEPRIVED OF

3

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JURISDICTION, HEATHV. JONES 863 F2d 815 821 (11TH CIR. 1989)

THE PETITIONER ARGUES FURTHER THAT, ALL EVIDENTIARY MATERIALS

SUBMITTED BY THE PETITIONER AS WELL AS THE RESPONDENT ESTABLISHS

BY CLEAR AND CONVINCING EVIDENCE THAT THE STATE COURT DENIAL OF

THE PETITIONER"S INDICTYMENT CLAIM WAS CLEARLY UNREASONABLE IN

RELATION TO THE FACTS AND EVIDENEE, AND THE ALABAMA COURT OF

CRIMINAL APPEALS DECISION ON THE PETITIONERS INDICTMENT CLAIM

CONSTITUTED A UNREASONABLE DETERMINATION OF THE FACTS IN LIGHT

OF THE EVIDENCE PRESENTED IN THE STATE COURT PROCEEDINGS SEE

28 USC 2254 (d) (2)" WILLIAMS V. TAYLOR 529 US 362 402 120

s ct 1495 1518 (2000).

2. SENTENCE ENHANCEMENT CLAIM - VIOLATION OF STATE LAW

THE PETITIONER "CLARENCE WATERS" ARGUES THAT THETRIAL COURT

VIOLATED HIS "DUE PROCESS" GUARANTEED BY THE 14TH AMENDMENT TO

THE UNITED STATES CONSTITUTION WHEN IT RELIED SOLELY UPON THE

"PRESENTENCE INVESTIGATION REPORT" TO PROVE THE SPECIFIC PRIOR

FELONY CONVICTIONS IT RELIED UPON FOR PURPOSSES OF ENHANCING

THE PETITIONERS SENTENCE PURUSNA TO "TITLE 13A-5-9 (c) (2)"

"CODE OF ALABAMA (1975)" IN VIOLATION OF EX PARTE COOPER 632 so

2d 1344 (ALA. 1994). AS SUCH, RESULTED IN A SENTENCE NOT

AUTHORIZED BY LAW JONES V. STATE 724 so 2d 75 (ALA. CRIM. APP.

THE PETITIONER ARGUES FURTHER THAT, THIS HONORABLE COURT

CONTENDSTHAT THIS CONTENTION BY THE PETITIONER DOES NOT PRESENT

A CLAIM UPON WHGICH FEDERAL RELIEF CAN BE GRANTED AS THIS CLAIM

INVOLVES THE STATE COURTS APPLICATION OF STATE LAW, BEVERLY V.

JONES 854 F2d 412 (11TH CIR. 1988), ESTELLE V. McGUIRE 502 US

62 (1991), AS A FEDERAL COURT HAS NO AUTHORITY TO RE-EXAMINE

STATE COURT DETERMINATIONS ON QUESTIONS OF STATE LAW.

4

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THE PETITIONER ARGUES TO THE CONTRARY, THAT BY THE STATE OF

ALABAMA ENHANCEMENT OF THE PETITIONER"S SENTENCE PURSUANT TO

"TITLE 13A-5-9 (c) (2)" "CODE OF ALABAMA (1975)" BY RELYING

SOLELY UPON THE PRESENTENCE INVESTIGATION REPORT WHICH LISTED

SEVERAL PRIOR FELONY CONVICTIONS, WAS IN VIOLATION OF EX PARTE

COOPER 632 so 2d 1344 (ALA. 1994).AS SUCH RESULTED IN AN SENTENC

NOT AUTHORIZED BY LAW, IN VIOLATION OF JONES V. STATE 724 so 2d

75 (ALA. CRIM. APP.) AS THE ALABAMA COURT OF CRIMINAL APPEALS

HAS HELD IN THE AUTHORITY OF JONES V. STATE SUPRA THE FOLLOWIN

(" A TRIAL COURT HAS NO JURISDICTION TO IMPOSE A SENTENCE WHICH

IS NOT AUTHORIZED BY LAW") SO AGAIN TO THE CONTRARY, THIS

HONORABLE COURT CAN CLEARLY FIND THAT, THE PETITIONERS SENTENCE

ENHANCEMENT CLAIM PRESENTS A CLAIM UPON WHICH FEDERAL HABEAS

RELIEF CAN BE GRANTED, AND THERE IS NO NEED TO RE-EXAMINE STATE

COURT DETERMINATION S ON QUESTIONS OF LAW, WHICH THIS COURT HAS N

NO AUTHORITY TO DO. BECAUSE This claim does

NOT INVOLVE THE STATE COURTS APPLICATION OF STATE LAW, SIMPLY

BECAUSE EX PARTE COOPER 632 so 2d 1344 (ALA. 1994) CLEARLY INVOL

VES A STATE COURTS APPLICATION OF STATE LAW WHUICH IS BINDING ON

THIS HONORABLE COURTS A K1ATXNXRXSTATEX AND IS NOT DISPUTED

BY THIS HONORABLE COURT SEE THIS HONORABLE COURTS ORDER DATED

FEBRUARY 5, 2008 IN WHICH THIS COURT RELIED UPON THE AUTHORITY

OF EX PARTE COOPER 632 so 2d 1344 (ALA. 1994).

THE PETITIONER ARGUES THAT, THIS HONORABLE COURT FINDS FROM THE

RECORD, WHICH REFUTES THE PETITIONERS ALLEGATION OF AN IMPROPER

SENTENCE ENHANCEMENT THAT THE RECORD CONTAINS TWO (2) DOCUMENTS

ENTITLED "NOTICE OF INTEBNT TO USE PRIOR CONVICTIONS" "INTENT TO

INVOKE SENTENCING ENHANCEMENTS" WHICH THE STATE PROVIDED TO TRIAL

COUNSEL IN JANUARY AND FEBRUARY OF 2005 AND FILED SIMULTANEOU

SLY WITH THE CIRCUIT COURT OF MONTGOMERY COUNTY RESPONDENTS EXHX

5

Case 2:06-cv-00650-MEF-SRW Document 42 Filed 04/15/2008 Page 5 of 14
EXHIBIT 17 COURT DOC. NO. 38-4 AT 14-17 AND RESPONDENTS EXHIBIT

17 COURT DOC NO 38-4 AT 21-23

THE PETITIONER ARGUES THAT THIS HONORABLE COURT ALSOCONTENDS

THAT THESE NOTICES, THE STATE IDENTIFIED THE PRIOR CONVICTIONS ON

WHICH IT INTENDED TO RELY FOR ENHANCEMENT OF THE PETITIONERS

SENTENCE UNDER THE ALABAMA HABITUAL FELONY OFFENDER ACT "TITLE

13A-5-9 (c) (2)" "CODE OF ALABAMA (1975)" SPECIFICALLY EACH

NOTICE IDENTIFIED PRIOR FELONY CONVICTIONS FOR FIRST DEGREE RAPE

SECOND DEGREE ESCAPE AND CAR THEFT

THE PETITIONER ARGUES THAT THE JANUARY AND FEBRUARY 2005

NOTICES CLEARLY PROVIDES NOTICE OF TWO (2) AND THREE (3) PRIOR

FELONY CONVICTIONS IN RESPONDENTS EXHIBIT 17

THE PETITIONER ARGUES THAT, CLEARLY THE STATES NOTICES IN

JANUARY AND FEBRUARY 2005 PROVIDES NOTHING BUT NOTICE TO THE

PETITIONER OF THE PRIOR FELONY CONVICTIONS IT WOULD RELY UPON

TO ENHANCE THE PETITIONERS SENTENCE PURSUANT TO "TITLE 13A-5-9

(C) (2)" "CODE OF ALABAMA (1975)"

THE PETITIONER ARGUES FURTHER THAT, THIS HONORABLE COURT ALSO

CONTENDS THAT AT THE PETITIONERS ACTUAL GUILTY PLEA PROCEEDINGS

THE PETITIONER STIPULATED TO PRIOR FELONY CONVICTIONS FOR RAPE

AND ESCAPE "RESPONDENTS EXHIBIT 16 COURT DOC. NO. 38-3 at 3-4"

THE PETITIONER ARGUES THAT THIS HONORABLE COURT ALSO CONTENDS

THAT THE PETITIONER STIPULATED TO THE EXISTENCE OF TWO (2) PRIOR

FELONY CONVICTIONS AGAIN "RESPONDENTS EXHIBIT 9 COURT DOC. NO 32

-2 at 2)"

THE PETITIONERARGUES THAT THIS HONORABLE COURT CONTENDS THAT

THESE STIPULATIONS BY THE PETITIONER OF TWO (2) PRIOR FELONY

CONVICTIONS RENDERED THE PETITIONER ELIBIBLE FOR ENHANCEMENT OF

HIS SENTENCE PURSUANT TO "TITLE 13A-5-9 (c) (2)" "CODE OF ALABAMA

(1975)"

6

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AND AS A RESULT IN ACCORDANE WITH STATE LAW, THE TRIAL COURT

RELIED ON THE STIPULATED PRIOR FELONY CONVICTIONS TO IMPOSE A

ENHANCED SENTENCE PURSUANT TO "TITLE 13A-5-9 (c) (2)" "CODE OF

ALABAMA (1975)" TO THIRTY (3G) YEARS IMPRISONMENT.

THE PETITIONER ARGUES THAT UNDER WELL SETTLED ALABAMA LAW, WHEN

A DEFENDANT ADMITS PRIOR FELONY CONVICTIONS THEY ARE DEEMED PROVE

FOR PURPOSSES OF "TITLE 13A-5-9" "CODE OF ALABAMA (1975)"

KASKA V. STATE 740 so 2d415 477 (ALA. CRIM. APP. 1998), SEE

ALSO EX PARTE CHAMBERS 522 so 2d 313 (ALA. 1987) WHITT V. STATE

461 so 2d 2930 (ALA. CRIM. APP. 1984), BURRELLV. STATE 429 so 2d

636 640 (ALA. CRIM. APP. 1982).

THE PETITIONER ARGUES THAT THE RESPONDENTS OWN (RESPONDENTS

EXHIBIT 9 PAGE 2-4) REFUTES IT"S ARGUMENT IN HIS "ANSWER" TO

THE PETITIONERS PETITION FOR WRIT OF HABEAS CORPUS, IN WHICH THE

(RESPONDENTS EXHIBIT 9 PAGE 2-4) CLEARLY SHOWS ON THEIR FACE

THAT THE STATE NEVER INTRODUCED INTOEVIDENCE ANY PRIOR FELONY

COWVICTIONS, WHATSOEVER, OR DID THE STATE PROVIDE THE TRIAL COURT

WITH ANY PRIOR FELONY CONVICTIONS IT WAS RELYING UPON TOENHANCE

THE PETITIONERS SENTENCE TOTHIRTY (30) YEARS IMPRISONMENT.

THE PETITIONER ARGUES FURTHER THAT, THERESPONDENTS OWN (RESPONDENTS STATES EXHBIT 13) (PHOTOCOPY OF THE MARCH 10, 2008 ORIGIN

NOTE OF DEBBIE HUDSON, BUTLER COUNTY CIRCUIT COURT SPECIALIST

STATING THAT THE RECORDS OF THE BUTLER COUNTY CIRCUIT COURT

CONTAIN NO DOCUMENTATION OF THE PETITIONERS 1980 SECOND DEGREE

ESCAPE CONVICTION) DISPUTES THE RESPONDENTS CONTENTIONS THROUGH

OUT THIS ENTIRE LITIGATION THAT THE STATE PROVIDED THE PETITIONER

WITH TWO (2) PRIOR FELONY CONVICTIONS THAT THE TRIAL COURT USBED

TO ENHANCE THE PETITIONERS SENTENCE TO THIRTY (30) YEARS SEE

(RESPONDEDNTS EXHIBIT ( PAGE 2-4) AS STATES EXHIBIT 13 CLEARLY

SHOEWS ON IT"S FACE THAT THE STATE OF ALABAMA OR THE TRIAL COURT

7

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COULD NOT HAVE HAD TWO (2) COPIES OF PRIOR FELONY CONVICTIONS

THATWERE ALLEDGEDLY USED TO ENHANCE THE PETITIONERS SENTENCE TO

THIRTY (30) YEARS IMPRISONMENT AT THE ACTUAL SENTENCING HEARING

HELD ON MAY 12, 2005

THE PETITIONER ARGUES THAT IN SUMMARY BY DISMISSING THE

PETITIONERS RULE 32 PETITION, THE MONTGOMERY COUNTY CIRCUIT COURT

FOUND THE CHALLENGE TO THE PETITIONERS SENTENCE IMPOSED WAS

MERITLESS (RESPONDENTS EXHIBIT 1)

THE PETITIONER ARGUES FURTHER THAT ON APPEAL FROM THIS DECISION

BY THE TRIAL COURT, THE ALABAMA COURT OF CRIMINAL APPEALS LIKEWIS

DEEMED THE PETITIONER"S SENTENCE CLSAIM TO BE WITHOUT MERIT

(RESPONDENTS EXHIBIT 5)

THE PETITIONER ARGUES THAT THE DENIAL OF THIS CLAIM BY THE STAT

COURT IBN THE RULE 32 PETITION AS WELL AS THE ALABAMA COURT OF

CRIMINAL APPEALS RESULTED INA DECISION THATWAS BASED ON AN

UNREASONABLE DETERMINATION OF THE FACTS IN LIFGHT OF THE EVIDENCE

PRESENTED IN THE STATE COURT PROCEEDINGS 28 USC 2254 (D) (2)

3. SILENT RECORD

THE PETITIONER "CLARENCE WATERS" ARGUES THAT IN THIS HONORABLE

COURTS "RECOMMENDATION OF THE MAGISTRATE JUDGE" DATED APRIL 3, 20

THIS HONORABLE COURT INFORMED THE PETITIONER THATY ON OR BEFORE A

APRIL 16, 2008 THE PARTIES MAY FILE "WRITTEN OBJECTIONS" TO THE

"RECOMMENDATION OF MAGISTRATE JUDGE" AND THAT OBJECTIONS MUST

SPECIFICAL IDENTIFY THE FINDINGS IN THE RECOMMENDATION TO WHICH

THE PARTIES IS OBJECTING TO.

THE PETITIONER DEEMS IT APPROPRIATE TO TOUCH ON A ARGUMENT WHIC

IS NOT SPECIFICALLY IDENTIFIED IN THIS HONORABLE COURTS RECOMMENDATION OF THE MAGISTRATE JUDGE, DATED APRIL 3, 2008 AND WITH

LEAVE OF THUIS HONORABLE COURT WILL BRIEFLY ARGUES HIS PERSPECTIV

8

Case 2:06-cv-00650-MEF-SRW Document 42 Filed 04/15/2008 Page 8 of 14
POSITION ON "SILENT RECORD"

THE PETITIONER ARGUES THAT THIS HONORABLE COURT IN IT"S

"RECOMMENDATION OF THE MAGISTRATE JUDGE" DATED APRIL 3, 2008

CONTENDWS THAT THE RECORD REFUTES THE PETITIONER"S CONCLUSIONARY

ALLEGATION OF AN IMPROPER SENTENCE ENHANCEMENT, SPECIFICALLY THE

RECORD CONTAINS TWO (2) DOCUMENTS ENTITLED "NOTICE OF INTENT TO

USE PRIOR CONVICTIONS" AND "INTENT TO INVOKE SENTENCING

ENHANCEMENTS" WHICH THE STATE PROVIDED TOTRIAL COUNSEL IN

JANUARY AND FEBRUARY OF 2005 AND FILED SIMULTANEOUSLY WITH THE

CIRCUIT COURT OF MONTGOMERY COUNTYALABAMA (RESPONDENTS EXHIBIT 17

AND THAT IN THESE NOTICES, THE STATE IDENTIFIED THE PRIOR FELONY

CONVICTIONS ON WHICH IT INTENDED TO RELY FOR ENHANCEMENT OF THE

PETITIONER"S SENTENCE UNDER THE HABITUAL FELONY OFFENDER ACT

SPECIFICALLY, EACH NOTICE IDENTIFIED PRIOR FELONY CONVICTIONS

FOR "RAPE 1ST DEGREE" AND"ESCAPE 2ND DEGREE" AND "THEFT OF

A AUTOMOBILE" (CAR THEFT)

FURTHERMORE, THIS HONORABLE COURT CONTENDS THAT THE RECORD

ALSO SHOWS THAT THE PETITIONER STIPULATED TO TWO (2) PRIOR

FELONY CONVICTIONS AT THE GUILTYPLEA PROCEEDINGS (RESPONDENTS

EXHIBIT 16) AND AGAIN AT THE SENTENCING HEARING (RESPONDENTS

EXHIBIT 9) THIS COURT FURTHER CONTENDS THAT THE PETITIONER

STIPULATED TO "FIRST DEGREE RAPE" AND "SECOND DEGREE ESCAPE"

AND THAT THE RECORD CLEARLY SHOWS THIS.

THE PETITIONER ARGUES FURTHER THAT, (RESPONDENTS EXHIBIT 9)

(PAGE 2-4) CLEARLY SHOWS THAT NO WHERE AT THE SENTENCING

HEARING HELD ON MAY 12, 2005 DOES THE RECORD SHOW WHICH TWO

OF THE THREE (3) PRIOR FELONY CONVICTIONS THE PETITIONER WAS

STIPUKLATING TO, OR TO WHICH TWO (2) PRIOR FELONY CONVICTIONS

THE STATE OF ALABAMA RELIED UPON TO ENHANCE THE PETITIONERS

SENTENCE TO THIRTY (30) YEARS IMPRISONMENT, OR TO WHICH TWO (2)

9

Case 2:06-cv-00650-MEF-SRW Document 42 Filed 04/15/2008 Page 9 of 14
PRIOR FELONY CONVICTIONS THE TRIAL COURT ACTUALLY USED TO ENHANCE

THE PETITIONER"S SENTENCE TOTHIRTY (30)YEARS IMPRISONMENT.

THE PETITIONER ARGUES THAT, THE RECORDS BEFORE THIS HONORABLE

COURT IS (SILENT) AS TO WHICH TWO (2) PRIORFELONY CONVICTIONS

THE PETITIONER ACTUALLY STIPUKATED TO, AND TO WHICH TWO (2) PRIOR

FELONY CONVICTIONS THAT THE TRIAL COURT ACTUALLY USED TO ENHANCE

THE PETITIONER"S SENTENCE TOTHIRTY (30) YEARS IMPRISONMENT AT THE

PETITIONER"S SENTENCING HEARING ON MAY 12, 2005

THE PETITIONER ?CLARENCE WATERS" ARGUES THAT,ORGINALLY A

JUDGEMENT ENTRY IS SAID TO IMPORT ABSOLUTE VERITY, AS COURTS

OF RECUDS, SPEAK ONLY THROUGH THEIR RECORDED MINUTES, AT LEAST

AS FAR AS SHOWING SUBSTANTIALLY ALL THAT WAS DONE AT THE TRIAL

WHICH THE LAW REQUIRES TO BE DONE CRIST V. STATE 21 ALA. 137

NARO V. STATE 212 ALA. 5 101 so 666 EVANS V. STATE 215 ALA.

61 109 so 357

THE PETITIONER ARGUES FURTHER THAT, CONVERSELY THE SILENCE OF

THE MINUTES ADMITS OF BUT ONE CONCLUSION THAT IF THE CLERK OMITS

MANDATED MATTERS FROM THE RECORD THEN THEY WERE NOT DONE, SEE

WALKER V. COMMONWEALTH 144 VA. 648 131 S.E 230 (6) SEE ALSO

STATE V. UNDERWOOD 130 W. VA. 166 43 S.E 2d 61 WHAT IS NOT

DISCLOSED BY THE RECORDS OF COURTS OF RECORDS DOES NOT LEGALLY

EXISTS.

THE PETITIONER ARGUES FURTHER THAT, IN McDONALD V. CRAWFORD

28 ALA. APP. 163 180 so 130 OUR ERSTWHILE COURT OF APPEALS HELD

TART IT IS A RULE, AND THE ONLY SAFE ONE,SAYS JUDGE STONE, THAT

IN JUDICIAL PROCEEDINGS NOTHING IS TO BE LEFT TO UNRECORDED

MEMORY, THE RECORD MUST SPEAK BY AND FOR ITSELF, WITHOUT THE

AID OF ORAL PROOF OR HUMAN RECOLLECTION (FIRST BRICKELL"S DIGEST

78-79) THE RECORD MUST BE SO COMPLETE THAT A SUCCEEDING OFFICER

COMING INTO THE PLACE OF ONE BEFORE WHICH THE BUISNESS WAS

1D

Case 2:06-cv-00650-MEF-SRW Document 42 Filed 04/15/2008 Page 10 of 14
TRANSACTED, CANNOT REASONABLY MISTAKE WHATWAS DONE.

THE RULE IS TO DESCRIBE THE PAGE BY IT:S DATE, AMOUNT, PARTIES

OR OTHER IDENTIFYING FEATURES, AS TO LEAVE NO ROOM FOR MISTAKES

IN THE TRANSCRIBIJJG OFFICER, THE ABOVE HAS CONSISTENTLY BEEN THE

RULE IN THIS STATE SINCE THAT TIME.

THE PETITIONER ARGUES THAT IT IS WELL SETTLED THAT THE RECITALS

IN THE JUDGEMENT IMPORT ABSOLUTELY VERITY, UNLESS CONTRADICTED

BY OTHER PORTIONS OF THE RECORD EX PARTE TANNER 219kLA. 7 121

so 423 BURTON V. STATE 40 ALA. APP. 146 109 so 2d 311 SEE ALSO

HAUN V. STATE 44 ALA. APP. 585 217 so 2d 249

THE PETITONER ARGUES THAT OUR BASIC STATUTORY COMMAND IS FOUND

IN (ALABAMA CODE 1940) "TITLE 15 389" WHICH WAS CARRIED OVER

INTO THE ALABAMA CODE (1975)

THE PETITIONER ARGUES THAT AMOUNG OTHER THINGS WE ARE CHARGED

THATWE, AFTER CONSIDERING ALL QUESTIONS APPARENT ON THE RECORD,

MUST RENDER SUCH JUDGEMENT AS THE LAW DEMANDS ITALICS ADDED, CITI

CITING JONES V. STATE .7 ALA. APP. 419 MARCH 16, 1977) SEE ALSO

DAVIS V. STATE 348 so 2d 846 (ALA. CRIM. APP. 1977) SEE ALSO

LAVENDER V. CITY O MOBILE 527 so 2d 1339 (ALA. CRIM. APP. 1987

11

Case 2:06-cv-00650-MEF-SRW Document 42 Filed 04/15/2008 Page 11 of 14
WHEREFORE PREMISES CONSIDERED PETITIONER MOVES THIS HONORABLE

COURT TO VACATE IT"S "RECOMMENDATION OF THE MAGISTRATE JUDGE"

DATED APRIL 3, 2008 AND TO ENTER A "AMENDED RECOMMENDATION OF

THE MAGISTRATE JUDGE" GRANTING THE PETITIONER"S "PETITION FOR

WRIT OF HABEAS CORPUS" ORDERING THAT THE PETITIONER BE GRANTED

A NEW SENTENCING HEARING, IN THE MONTGOMERY COUNTY CIRCUIT COURT

WITHOUT THE USE OF ANY PRIOR FELONY CONVICTIONS FOR ENHANCEMENT

PURPOSSES AND TO FURTHER ORDER THAT THE PETITIONER RECEIVE A

SENTENCE WHICH IS APPROPRISATE UNDER THE LAWS OF THIS STATE AS

TOTHE CHARGE HE WAS CONVICTED OF THEREIN IN THE CIRCUIT COURT

OF MONTGOMERY COUNTYALABAMA

DONE THIS THE /F APRIL 2008

RESPECTFULLY SUBMITTED

CRENCE WATERS

A±S# 132116

WILLIAM E. DONALDSON CORRECTIONAL FACILI

100 WARRIOR LANE

BESSEMER, ALABAMA 35023-7299

12

Case 2:06-cv-00650-MEF-SRW Document 42 Filed 04/15/2008 Page 12 of 14
CERTIFICATE OF SERVICE

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

FOREGOING UPON THE FOLLOWING BY PLACING A COPY IN THE UNITED

STATES AMAIL POSTAGE PREPAID AND PROPERLY ADDRESSED THIS THE

OF APRIL 2008 AS FOLLOWS

CC: HONORABLE TROY KING

ATTORNEY GENERAL

STATE OF ALABAMA

ALABAMA STATEHOUSE

11 SOUTH UNION STREET

MONTGOMERY, ALABAMA 36130

RESPECTFULLY SUBMITTED

/i

CLENCE WATERS

AI# 132116

WILLIAM E. DONALDSON CORRECTIONAL FAC

100 WARRIOR LANE

BESSEMER, ALABAMA 35023-7299

13

Case 2:06-cv-00650-MEF-SRW Document 42 Filed 04/15/2008 Page 13 of 14
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Case 2:06-cv-00650-MEF-SRW Document 42 Filed 04/15/2008 Page 14 of 14