IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF ALABAMA

EASTERN DIVISION

TOMMY LEE WILSON, #225500, )

)

 Petitioner, )

)

v. ) CIVIL ACTION NO. 3:06-CV-751-WKW

)

RALPH HOOKS, et al., )

)

 Respondents. )

O R D E R

Respondents contend in their Answer and supplement that the claims raised in this

habeas corpus petition by Tommy Lee Wilson [“Wilson”] lack merit. They show that

Wilson’s challenge to the sufficiency of the evidence provides no basis for relief because the

Alabama Court of Criminal Appeals adjudicated this claim on direct appeal properly on the

merits and adversely to Wilson. Williams v. Taylor, 529 U.S. 362, 404-405, 120 S.Ct. 1495,

1518- 1523 (2000). Moreover, on appeal from the denial of the Rule 32 petition, the

appellate court likewise determined that Wilson failed to “sufficiently plead[] facts necessary

to establish . . . his claims” challenging the sufficiency of the evidence, the assistance

provided by trial counsel, and the testimony of Darcell Brown. Respondents’ Exhibit B-1

at 3. 

Title 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 court may grant a writ of habeas corpus only “if the relevant state-court

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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.

th

2001). In the vast majority of 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.”).

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

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. . . 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). 

With respect to the newly discovered evidence claim related to the veracity of Darcell

Brown’s testimony, the respondents further argue “procedural default” as the last state court

to address the issue deemed it defaulted due to Wilson’s failure to plead this claim in

accordance with the requirement in Rule 28(a)(10), Alabama Rules of Appellate Procedure

“that an argument contain ‘the contentions of the appellant with respect to the issues

presented, and the reasons therefor, with citations to the cases, statutes, other authorities, and

parts of the record relied on.’” Respondents’ Exhibit B-1 at 4. Based on this rule of state

appellate procedure, the Alabama Court of Criminal Appeals held that Wilson waived this

claim because he “presented no argument on appeal supporting this allegation.” Id. The

respondents also maintain that the claims of ineffective assistance of counsel are without

merit. 

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 O’Sullivan v. Boerckel, 526 U.S. 838, 844-845

(1999); Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Wainwright v. Sykes, 433 U.S. 72

(1977); Brownlee v. Haley, 306 F.3d 1043, 1065 (11 Cir. 2002); Holladay v. Haley, 209 th

F.3d 1243, 1254 n. 9 (11 Cir.), cert denied, 531 U.S. 1017 (2000); Collier v. Jones, 901 th

F.2d 770, 773 (11 Cir. 1990). However, even if the petitioner fails to show cause and th

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

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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. 

Accordingly, it is

ORDERED that on or before November 14, 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 November 14, 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

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

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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 he has

procedurally defaulted on a claim 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 post-conviction 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 claim under

the fundamental miscarriage of justice exception, the petitioner must show specific reasons

for the application of this exception.

Done this 25 day of October, 2006. th

/s/ Delores R. Boyd

DELORES R. BOYD

UNITED STATES MAGISTRATE JUDGE

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