IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

SOUTHERN DIVISION

 _______________________________

JAMES HICKMAN HOLLOMAN *

Petitioner, * 

 v. * 1:06-CV-786-MHT

 

RICHARD ALLEN, et al., *

Respondents. *

 _______________________________

O R D E R

This cause is before the court on a 28 U.S.C. § 2254 petition filed September 1, 2006

by counsel on behalf of James Holloman, a state prisoner. In this petition, Petitioner

challenges convictions entered against him on June 18, 2003 by the Circuit Court for Houston

County, Alabama, for capital murder during a burglary, capital murder during a kidnapping,

and two counts of attempted murder.

The Clerk is DIRECTED to mail a copy of the petition and this order to the Attorney

General of the State of Alabama and to cause a copy of the same to be served upon Warden

Ralph Hooks. An answer shall be filed within 20 days of service on the Attorney General.

In filing their answer, Respondents should comply with the provisions of Rule 5 of the rules

governing § 2254 cases in the district courts which requires, in pertinent part, that the answer

. . . indicate what transcripts (of pretrial,

trial sentencing, and post-conviction 

proceedings) are available, when they can be

furnished, and also what proceedings have

been recorded and not transcribed.

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Rule 5 also requires that Respondents attach to their answer such portions of the transcript

as they deem relevant. Additionally, Respondents should make specific reference to 28

U.S.C. § 2244(d) which provides that: 

(1) A 1-year period of limitation shall apply to an application for

a writ of habeas corpus by a person in custody pursuant to the

judgment of a State court. The limitation period shall run from

the latest of--

(A) the date on which the judgment became final

by the conclusion of direct review or the

expiration of the time for seeking such review;

(B) the date on which the impediment to filing an

application created by State action in violation of

the Constitution or laws of the United States is

removed, if the applicant was prevented from

filing by such State action;

(C) the date on which the constitutional right

asserted was initially recognized by the Supreme

Court, if the right has been newly recognized by

the Supreme Court and made retroactively

applicable to cases on collateral review; or

(D) the date on which the factual predicate of the

claim or claims presented could have been

discovered through the exercise of due diligence.

(2) The time during which a properly filed application for State

post-conviction or other collateral review with respect to the 

pertinent judgment or claim is pending shall not be counted

toward any period of limitation under this subsection.

Respondents are advised that the answer should contain a procedural history from

which the court can determine the applicability of 28 U.S.C. § 2244(d). In so doing,

Respondents shall provide the court with copies of documents indicating the disposition of

the case in the state appellate court, including but not limited to the case action summary

maintained by the trial court, all state court appellate decisions, the docket sheet(s) indicating

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the dates of such decisions, and copies of the briefs filed in the state court. Respondents are

cautioned that if they fail to assert the timeliness issue it may be waived. Respondents

shall also inform the court of whether this is the first habeas petition filed by Petitioner

challenging the conviction which is the basis for the instant petition. If Petitioner has a

filed previous petition challenging the conviction underlying the present petition,

Respondents shall provide the court with the disposition of such petition. This information

is relevant to the disposition of this case as 28 U.S.C. § 2244(b)(3)(A) requires that "[b]efore

a second or successive application permitted by this section is filed in the district court, the

applicant shall move in the appropriate court of appeals for an order authorizing the district

court to consider the application." However, Respondents are advised that a prior petition

dismissed for failure to exhaust state remedies does not render a subsequent petition

successive. 

Section 2254(d)(1) of the AEDPA significantly “modifies the role of federal habeas

courts in reviewing petitions filed by state prisoners.” Williams v. Taylor, 529 U.S. 362, 403,

120 S.Ct. 1495, 1518 (2000). In sum, § 2254(d)(1) places new constraints on the power of

a federal court to grant a state prisoner’s application for habeas corpus relief with respect to

those claims adjudicated on the merits in state court. Specifically, the statute allows this court

to 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

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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 cases, th

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.”).

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). 

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If Respondents, therefore, contend that this court is precluded from granting

habeas relief because claims raised by Petitioner have been properly adjudicated by the

state courts in accordance with clearly established Supreme Court precedent,

Respondents must identify to this court the Supreme Court authority on which the state

court relied in adjudicating Petitioner’s claims and the decision of the state court on

each claim. Moreover, if Petitioner has not raised his federal claims in the state courts and

has an available state court remedy wherein he may present such claims, Respondents shall

identify the remedy available to Petitioner. The court deems such action necessary as the law

requires that an application for writ of habeas corpus filed by "a person in custody pursuant

to the judgment of a State court shall not be granted unless it appears that the applicant has

exhausted the remedies available in the courts of the State . . ." 28 U.S.C. §

2254(1)(b)(1)(A). In addition, if this court is barred from reviewing a petitioner’s

claims due to his failure to properly present any of the federal claims to the state courts,

Respondents shall identify the defaulted claim(s) and provide a basis for the procedural

default. 

Where Petitioner alleges ineffective assistance of counsel or insufficiency of the

evidence and these claims must be addressed on their merits, the entire trial record must be

filed. The entire trial record should also be filed if Respondents assert that a ruling of the trial

court is entitled to a presumption of correctness or if they defend on grounds that a particular

ruling did not render the trial "fundamentally unfair" or that a particular error is "harmless

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error." The Magistrate Judge recognizes that the burden of producing the state court record

is sometimes unduly onerous. However, it is clear that pursuant to the procedure governing

habeas corpus actions, "[t]he obligation to come forward with the state court record is

squarely upon the Respondent, not upon the petitioner." Bundy v. Wainwright, 808 F.2d

1410, 1415 (11th Cir. 1987).

The parties are advised that no motion for summary judgment, motion to dismiss

or any other dispositive motions addressed to the petition may be filed by any party

without permission of the court. If any pleading denominated as a motion for summary

judgment, motion to dismiss or other dispositive motion is sent to the court, the court shall

not file or otherwise treat the pleading as a dispositive motion until and unless further order

of the court. Petitioner is cautioned that all amendments to the petition should be

accompanied by a motion to amend and must be filed within ninety (90) days from the

date of this order.

Done this 5 day of September, 2006. th

 /s/Charles S. Coody 

CHARLES S. COODY

CHIEF UNITED STATES MAGISTRATE JUDGE

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