IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

JEROME A. WILLIAMS, :

Petitioner, :

v. : CIVIL ACTION NO. 07-00123-KD-B

RALPH HOOKS, :

Respondent. :

REPORT AND RECOMMENDATION

Jerome A. Williams, a state prisoner currently in the custody

of Respondent, has petitioned this Court for federal habeas corpus

relief pursuant to 28 U.S.C. § 2254. Williams challenges the

validity of his 2004 convictions by a jury in the Mobile County,

Alabama Circuit Court, for rape, burglary, and theft of property,

for which he received sentences of life imprisonment without

parole, life imprisonment, and twenty (20) years imprisonment,

respectively, as a habitual offender. (Docs. 1; 9).

This matter is now before the undersigned Magistrate Judge on

Petitioner’s petition, Respondent’s answer and supplemental answer,

briefs, responses, and exhibits filed by the parties, the state

court records, various appellate briefs filed by the parties, and

opinions and orders of the state appellate courts. Following a

careful review of the petition and record, the undersigned finds

Case 1:07-cv-00123-KD-B Document 22 Filed 03/03/10 Page 1 of 29
1

Because Petitioner filed his federal habeas petition after

April 24, 1996, this case is governed by the Antiterrorism and

Effective Death Penalty Act (AEDPA). “AEDPA expressly limits the

extent to which hearings are permissible, not merely the extent

to which they are required.” Kelley v. Sec’y for Dep’t of

Corrs., 377 F.3d 1317, 1337 (11th Cir. 2004). The legal standard

for determining when an evidentiary hearing in a habeas corpus

case is allowed is articulated in 28 U.S.C. § 2254(e)(2), which

provides:

If the applicant has failed to develop the

factual basis of a claim in State court

proceedings, the court shall not hold an

evidentiary hearing on the claim unless the

applicant shows that–

(A) the claim relies on–

(I) a new rule of constitutional law, made

retroactive to cases on collateral review by

the Supreme Court, that was previously

unavailable; or

(ii) a factual predicate that could not have

been previously discovered through the

exercise of due diligence; and

(B) the facts underlying the claim would be

sufficient to establish by clear and

convincing evidence that but for

constitutional error, no reasonable

factfinder would have found the applicant

guilty of the underlying offense.

Petitioner has failed to establish that an evidentiary

hearing is warranted in this case.

2

that an evidentiary hearing is not warranted on the issues.1 See 28

U.S.C. § 2254(e)(2).

FINDINGS OF FACT

The Alabama Court of Criminal Appeals found the facts of this

Case 1:07-cv-00123-KD-B Document 22 Filed 03/03/10 Page 2 of 29
2

AEDPA directs that a presumption of correctness be afforded

factual findings of state courts, “which may be rebutted only by

clear and convincing evidence.” Bui v. Haley, 321 F.3d 1304,

1312 (11th Cir. 2003) (citing 28 U.S.C. § 2254(e)(1)). “This

presumption of correctness applies equally to factual

determinations made by state trial and appellate courts.” Id.

(citing Sumner v. Mata, 449 U.S. 539, 547 (1981)). 

3

case to be as follows:2

The appellant, Jerome Anthony Williams, was

convicted of one count of first-degree rape, a

violation of § 13A-6-61, Ala. Code 1975; one count

of second-degree burglary, a violation of § 13A-7-

6, Ala. Code 1975; and one count of first-degree

theft of property, a violation of § 13A-8-3, Ala.

Code 1975. He was sentenced as a habitual offender

to a term of life without the possibility of parole

for the rape conviction; life imprisonment for the

burglary conviction; and 20 years’ imprisonment for

the theft conviction. All of the sentences were

ordered to run consecutively. This appeal followed.

The evidence revealed that on May 30, 2003,

A.M. traveled to Mobile to visit her two daughters,

who were students at Springhill College. After

exiting the interstate in West Mobile, she checked

into the Comfort Inn Suites hotel. As A.M. entered

her hotel room, she was attacked from behind by a

black male. He pushed her into the room, slammed

the door, and closed the curtains. He emptied the

contents of A.M.’s purse on the coffee table and

took in excess of $87 in cash. He also took most

of A.M.’s jewelry that she was wearing at the time.

Finally, he ordered A.M. to remove her clothes and

then he raped her. Before leaving, A.M.’s

assailant warned her not to call anyone. A.M.

telephoned her family and then notified the police.

While the hotel room was examined for evidence,

A.M. went to the hospital where she received

medical attention. A rape kit was collected for

future use as evidence.

During the investigation, Detective David

McMeans recalled a similar case in the Mobile area

that involved a black male suspect named Claude

Jowers. He prepared a photographic lineup for

Case 1:07-cv-00123-KD-B Document 22 Filed 03/03/10 Page 3 of 29
3

The record reflects that Judge Kendall handled the

preliminary matters during Williams’ trial, while Judge Roderick

Stout presided over the remainder of the proceedings. See (Doc.

11, Ex. 1, Vol. 2, p. 8 (R.7)).

4

A.M.’s review; however, A.M. was unable to identify

her attacker from the photographs. 

Although A.M.’s assailant wore a condom, body

fluids were found on A.M.’s shorts during the

course of the investigation that were submitted to

the Alabama Department of Forensic Sciences for DNA

testing. The results were compared to the DNA test

results obtained from A.M.’s rape kit samples.

After extracting the DNA of the victim from the

samples, remaining DNA was found to be present in

the samples from an unknown source. The sample was

compared to the DNA sample from Claude Jowers but

no match was achieved. The results were then

entered into the FBI’s National DNA Identification

Index database of criminal offenders, (“CODIS”),

which revealed one specific match. The database

revealed that the DNA matched Williams, an exconvict from Prichard. Williams was subsequently

arrested and charged with the rape of A.M. 

(Doc. 10, Ex. 4 at 1-2). 

Williams was indicted by the Mobile County Grand Jury on

January 16, 2004, and charged with rape, burglary, and theft of

property. (Doc. 11, Ex. 1 at 25-27). On March 29, 2004, Williams

entered a plea of not guilty to the charges, and his jury trial

commenced on September 13, 2004, in the Circuit Court of Mobile

County, Alabama, the Honorable Robert Kendall presiding.3 (Id. at

5, 8). Attorney Greg Reese was initially appointed to represent

Petitioner; however, following the prosecution’s opening statement,

Williams requested and was granted permission to proceed pro se for

his trial proceedings, with Reese acting as stand-by counsel. (Id.

Case 1:07-cv-00123-KD-B Document 22 Filed 03/03/10 Page 4 of 29
5

at 5). On September 22, 2004, the jury returned a verdict of

guilty as to all three (3) counts, and on October 28, 2004,

Williams was sentenced under the Habitual Felony Offender Act to

life imprisonment without parole for the rape conviction, life

imprisonment for the burglary conviction, and twenty (20) years

imprisonment for the theft conviction. All of the sentences were

ordered to run consecutively. (Id. at 9-10, 16-17, 23-24, 28). 

On November 16, 2004, Williams filed written notice of appeal

to the Alabama Court of Criminal Appeals, and attorney Linda

Collins Jensen was appointed to represent Williams during his

appellate proceedings. (Doc. 11, Ex. 1, p. 10). On August 19, 2005,

the Alabama Court of Criminal Appeals affirmed Petitioner’s

convictions by unpublished memorandum opinion. (Doc. 10, Ex. 4).

The record does not reflect the date on which Williams’ application

for rehearing was overruled; however, it does reflect that his

petition for writ of certiorari was denied, on November 10, 2005,

by the Alabama Supreme Court. (Doc. 10, Ex. 5). The Alabama Court

of Criminal Appeals subsequently issued its certificate of final

judgment on November 14, 2005. (Id.) Williams’ conviction became

final on February 8, 2006, that is when the 90 day period in which

Petitioner could have sought review of his conviction by the U.S.

Supreme Court concluded. See Pugh v. Washington, 243 F. 3d 1229

(llth Cir. 2001). The record does not indicate, and Williams does

not allege that he filed any state post-conviction petition

Case 1:07-cv-00123-KD-B Document 22 Filed 03/03/10 Page 5 of 29
4

Although Williams’s petition was received and docketed by

the Clerk’s Office on February 16, 2007, the petition is signed

and dated February 7, 2007. Pursuant to the prison mailbox rule,

February 7, 2007 is to be used as the filing date. Houston v.

Lack, 487 U.S. 266, 276, 108 S. Ct. 2379, 101 L. Ed. 2d 245

(1988)( “absent evidence to the contrary in prison logs or other

records, [this court] will assume that [petitioner’s] motion was

delivered to prison officials the day he signed it...”). 

5

Respondent, on June 20, 2007, filed his initial answer to

Petitioner’s petition seeking habeas corpus relief, wherein he

alleged that Petitioner’s petition was barred by the one-year

statute of limitation. (Doc. 9). However, after a thorough

review of the record, the undersigned determined that

Petitioner’s petition was, in fact, timely filed and directed

Respondent to file an amended answer. (Doc. 15). Accordingly,

pursuant to the Court’s Order, Respondent filed a supplemental

response. (Doc. 16).

6

challenging his convictions. See (Doc. 1). 

On February 7, 20074, Williams filed the instant petition in

this Court setting forth three (3) claims in support of his request

for habeas relief. (Doc. 1 at 7-8). In his supplemental answer5,

Respondent asserts that the state courts properly denied relief on

all three (3) of Williams’ claims on the merits. (Doc. 16).

DISCUSSION

Upon careful review of the record, the undersigned notes that

Williams’ claims were raised in his direct appeal, were considered

by the state courts, and were denied on the merits. Thus, in order

to obtain federal habeas relief on the basis of any of these

claims, Williams must show that the state courts resolved his

claims in a manner contrary to or involving an unreasonable

application of federal law as established by United States Supreme

Case 1:07-cv-00123-KD-B Document 22 Filed 03/03/10 Page 6 of 29
7

Court precedent. 28 U.S.C. § 2254(d) provides that: 

(d) An application for a writ of habeas

corpus on behalf of a person in custody

pursuant to the judgment of a State court

shall not be granted with respect to any

claim that was adjudicated on the merits in

State court proceedings unless the

adjudication of the claim– 

(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.

Id. In Williams v. Taylor, 529 U.S. 362, 412 (2000), Justice

O’Connor, writing for a majority of the Court, recognized that “§

2254(d)(1) places a new constraint on the power of a federal habeas

court to grant a state prisoner’s application for a writ of habeas

corpus with respect to claims adjudicated on the merits in state

court.” 

A state court decision is contrary to

the Supreme Court’s clearly established

precedent (1) if the state court applies a

rule that contradicts the governing law as

set forth in Supreme Court case law, or (2)

if the state court confronts a set of facts

that are materially indistinguishable from

those in a decision of the Supreme Court and

nevertheless arrives at a result different

from Supreme Court precedent. See Williams

v. Taylor, 529 U.S. 362, 120 S. Ct. 1495,

1519-20, 146 L. Ed. 2d 389 (2000).

Case 1:07-cv-00123-KD-B Document 22 Filed 03/03/10 Page 7 of 29
6

It appears that in his direct appeal, Williams alleged that

the trial court denied him his right to waive representation

8

A state court decision involves an

unreasonable application of Supreme Court

precedent “if the state court identifies the

correct governing legal rule from [Supreme

Court] cases but unreasonably applies it to

the facts of the particular state prisoner’s

case.” Williams, 120 S. Ct. at 1520. In

addition, a state court decision involves an

unreasonable application of Supreme Court

precedent “if the state court either

unreasonably extends a legal principle from

[Supreme Court] precedent to a new context

where it should not apply or unreasonably

refuses to extend that principle to a new

context where it should apply.” Id.

Bottoson v. Moore, 234 F.3d 526, 531 (11th Cir. 2000). Moreover,

as discussed above, the Act, as amended, presumes as correct all

determinations of factual issues made by a state court and places

the burden upon the petitioner to rebut such a presumption of

correctness by clear and convincing evidence. 28 U.S.C. § 2254(e).

For the reasons set forth below, the Court finds that Williams is

not entitled to habeas relief on the basis of any of his federal

habeas claims. The Court will now address each of Petitioner’s

claims in turn.

 I. Claim 1. 

Petitioner argues first in his petition that he is entitled to

relief under § 2254 because the trial court violated his

constitutional right to waive counsel and represent himself during

the suppression hearing for his trial.6

 (Doc. 1 at 7). According

Case 1:07-cv-00123-KD-B Document 22 Filed 03/03/10 Page 8 of 29
during both the suppression hearings and jury selection for his

trial. However, in the instant petition, Williams only

challenges the alleged denial during the suppression hearings.

See (Doc. 1 at 7).

9

to Petitioner, the trial court denied his request without an

inquiry. (Doc. 1 at 7). The Court notes that Williams fails to

cite to any United States Supreme Court case to support his claim

in this matter. 

As indicated above, Williams raised this claim in the state

court on direct appeal, and the Alabama Court of Criminal Appeals

denied this claim on the merits as follows:

On appeal, Williams argues that the trial

court violated his constitutional right to waive

representation by appointed counsel in order to

represent himself during the suppression hearings

and jury selection for his trial. His contention is

that the trial court erred by waiting until the

jury was empaneled and the pretrial hearings were

concluded.

The record reveals that the trial court

appointed Williams’s trial counsel on March 29,

2004. On May 3, 2004, at a motion hearing, it

became apparent to the trial court that Williams

and his counsel had a difference of opinion over

trial strategy; however, Williams never indicated

that he wished to exercise his right to selfrepresentation. Only May 21, 2004, at a case

status hearing, no such assertion was made. It was

not until September 19, 2004, after voir dire was

completed and the petit jury was sworn and

empaneled, that Williams indicated that he wished

to represent himself.

We point out that jeopardy attached in this

case when the jury was empaneled and sworn. See,

e.g., Ex party Sullivan, 779 So. 2d 1157, 1162

(Ala. 2000); Ex parte McKenna, 655 So. 2d 989, 990

(Ala. 1995). Initially, the trial court denied

Case 1:07-cv-00123-KD-B Document 22 Filed 03/03/10 Page 9 of 29
10

Williams’s request and continued the suppression

hearing. However, prior to the commencement of

trial and before opening statements, Williams

renewed his request. The trial court reconsidered

Williams’s motion to represent himself at trial.

After cautioning him about the perils of selfrepresentation and ensuring that Williams

understood that it was not in his best interest to

proceed pro se, the trial court allowed Williams to

proceed pro se with the assistance of stand-by

counsel. Given the fact that he was allowed to

proceed pro se, we find no reversible error in the

trial court’s denial of his request to represent

himself at the suppression hearing and during voir

dire.

(Doc. 10, Ex. 4, p. 2-3).

In Parker v. State, 455 So. 2d 111, the Alabama Court of

Criminal Appeals, discussing the federal law applicable to this

claim in Faretta v. California, 422 U.S. 806, 45 L. Ed. 2d 562, 95

S. Ct. 2525 (1975), noted: “In Faretta v. California, 422 U.S. 806,

45 L. Ed. 2d 562, 95 S. Ct. 2525 (1975), the United States Supreme

Court held that a criminal defendant has a Sixth Amendment right to

conduct his own defense. The demand to proceed pro se must,

however, be timely made ... The defendant in Faretta made such a

motion weeks before coming to trial.” Id. at 112. In other words,

a defendant’s request to proceed pro se must be made in a timely

manner. See also Buhl v. Cooksey, 233 F.3d 783, 795 (3d Cir.

2000) (holding that a defendant’s request for self-representation

was timely because he first made it several weeks before trial and

then reasserted the request the day before the trial began); United

States v. Walker, 142 F.3d 103, 109 (2d Cir. 1998) (holding that a

Case 1:07-cv-00123-KD-B Document 22 Filed 03/03/10 Page 10 of 29
11

defendant’s request for self-representation was untimely although

he made it before empaneling of the jury because he asserted the

request after nineteen days of voir dire); United States v.

Lawrence, 605 F.2d 1321, 1325 (4th Cir. 1979) (holding that a

defendant’s request to proceed pro se was untimely because he made

it after the jury had been selected and before the trial court had

sworn the jury).

Further, in United States ex rel. Maldonado v. Denno, 348 F.2d

12 (2d Cir. 1965), the Second Circuit observed that 

[t]he right of a defendant in a criminal case to

act as his own lawyer is unqualified if invoked

prior to the start of the trial ... Once the trial

has begun with the defendant represented by

counsel, however, his right thereafter to discharge

his lawyer and to represent himself is sharply

curtailed. There must be a showing that the

prejudice to the legitimate interests of the

defendant overbalances the potential disruption of

proceedings already in progress, with considerable

weight being given to the trial judge's assessment

of this balance. 

Id. at 15 (citations omitted).

In this case, the record reflects that Petitioner first sought

to proceed pro se well after the jury was empaneled and sworn. See

(Doc. 11, Ex. 1, Pt. 2, pp. 36-37, 39, 41-42 (R. 35-36, 38, 40-

41)). 

THE COURT: Ladies and gentleman, raise your right

hands.

(Jury sworn)

.................................................

(Jury not present.)

Case 1:07-cv-00123-KD-B Document 22 Filed 03/03/10 Page 11 of 29
12

.................................................

THE DEFENDANT: Excuse me, Mr. Kendall.

THE COURT: Sir?

THE DEFENDANT: Your Honor, I would like to request

- - 

THE COURT: Talk into the microphone.

THE DEFENDANT: Judge Kendall, I would like to

request to proceed pro se at this time, sir.

THE COURT: I deny your request.

THE DEFENDANT: On what grounds, Judge Kendall?

THE COURT: On the grounds that you are not trained

as a lawyer, you have got to have a lawyer.

THE DEFENDANT: Judge, he can assist, Judge Kendall.

I insist on proceeding pro se, sir.

THE COURT: I deny your request.

...

THE DEFENDANT: Judge Kendall, you cannot stop me

from representing myself in these proceedings,

Judge Kendall.

THE COURT: I just did.

Id.

A short time later, after the suppression hearing regarding

DNA evidence had already commenced, Williams renewed his request.

THE DEFENDANT: Judge Kendall, in the Alabama

Constitution, Article 1 and 6, the defendant has an

absolute right to proceed pro se in any criminal

proceeding. Also, the sixth amendment - - the

clause of the sixth amendment also in the United

States Constitution, any defendant can proceed any

criminal defense pro se.

THE COURT: I deny your request....

Case 1:07-cv-00123-KD-B Document 22 Filed 03/03/10 Page 12 of 29
13

(Doc. 11, Ex. 1, Pt. 2, p. 55 (R. 54)). By the time of this

request, the suppression hearing had commenced and the state’s DNA

expert, William H. Jones, section head of the Mobile Regional

Laboratory of the Alabama Department of Forensic Sciences, had

undergone direct examination and was about to undergo cross

examination by defense counsel. Clearly, permitting Williams to

discharge his counsel and to proceed pro se once the suppression

hearing had commenced could have caused a “potential disruption of

proceedings already in progress.” Denno, 348 F.2d at 15. Moreover,

the record reflects that Williams’ subsequent request, made after

the prosecution’s opening statement, that he be permitted to

represent himself at trial was granted. See (Doc. 11, Ex 1, Vol. 2,

pp. 17-27 (R. 16-26)). 

As discussed above, in order to obtain federal habeas relief

on the basis of claim 1, Williams must show that the state courts

resolved this claim in a manner contrary to or involving an

unreasonable application of federal law as established by United

States Supreme Court precedent. While the Alabama Court of

Criminal Appeals did not mention Faretta v. California, or any

comparable case, in its analysis of Williams’ Sixth Amendment

claim, recognition by the appellate court of the proper analysis is

clear from a reading of that decision. Cf. Early v. Packer, 537

U.S. 3, 8 (2002) (“Avoiding these pitfalls does not require

citation to our cases - indeed, it does not even require awareness

Case 1:07-cv-00123-KD-B Document 22 Filed 03/03/10 Page 13 of 29
14

of our cases, so long as neither the reasoning nor the result of

the state-court decision contradicts them.”). The Alabama Court of

Criminal Appeals, in an unpublished opinion, noted that Williams’

initial request to represent himself did not come until after the

jury was empaneled and sworn. The Court found that “[g]iven the

fact that he was allowed to proceed pro se, we find no reversible

error in the trial court’s denial of his request to represent

himself at the suppression hearing and during voir dire.” For the

precise reasons found by the Alabama Court of Criminal Appeals, the

undersigned finds that there was no reversible error in the trial

court’s denial of Williams’ request to represent himself at the

suppression hearing and that his constitutional rights were not

violated. (Doc. 10, Ex. 4, p. 3). 

Therefore, with respect to habeas claim 1, Williams has failed

to establish under the “contrary to” clause of § 2254(d)(1) that

the Alabama Court of Criminal Appeals applied a rule that

contradicts the governing law as set forth in Supreme Court case

law, or that the court decided the case differently than the

Supreme Court did in a previous case presenting a set of materially

indistinguishable facts. Likewise, he has failed to establish

under the “unreasonable application” clause that the state court,

though recognizing the correct governing principles from the

Supreme Court’s decisions, unreasonably applied those principles to

the facts in this case. Thus, Williams has not established that he

is entitled to relief under § 2254(d)(1). 

Case 1:07-cv-00123-KD-B Document 22 Filed 03/03/10 Page 14 of 29
15

In addition, Petitioner has failed to establish entitlement to

relief under § 2254(d)(2) by showing that the decision of the

Alabama Court of Criminal Appeals was based on an unreasonable

determination of the facts in light of the evidence presented in

the state court proceeding. This Court must presume as correct the

determinations of all factual issues made by the state court. 28

U.S.C. § 2254(e). Williams has not rebutted that presumption of

correctness by clear and convincing evidence. Accordingly, his

request for habeas relief on the basis of his Sixth Amendment claim

is due to be denied.

 II. Claim 2. 

Williams next argues in his petition that he is entitled to

relief under § 2254 on the ground that the trial court improperly

questioned witness William Jones, which resulted in prejudice

against him. Specifically, Williams alleges that the trial court

invaded the province of the jury when it commented on the validity

of the CODIS (“Combined DNA Index System”) database. (Doc. 1 at

7). Williams raised this claim in the state court in his direct

appeal, which was denied by the Alabama Court of Criminal Appeals.

That court found as follows:

Williams next contends that the trial court

erred when it made comments regarding DNA evidence.

Williams argues that the court’s comments were

improper because, he says, such comments invaded

the province of the jury as the ultimate finder of

fact. The record indicates that the court made

several comments during the examination of Bill

Jones in order to clarify Jones’s testimony

relating to forensic testing that Jones performed

as an examiner for the Alabama Department of

Case 1:07-cv-00123-KD-B Document 22 Filed 03/03/10 Page 15 of 29
16

Forensic Sciences. This Court has previously held

that:

“‘The trial judge is more than a mere

moderator and it is his duty to conduct an

orderly trial and to make certain as far as

possible that there is no misunderstanding

of the testimony of witnesses. Thus, he may

ask any question which would be proper for

the prosecutor or defense counsel to ask so

prejudice does not arise merely because the

questions are asked by the court.” 23 C.J.S.

Criminal Law § 991 (1961).’ “Moore v. State,

502 So. 2d 882, 885-86 (Ala. Crim. App.

1987).” Hammonds v. State, 777 So. 2d 750,

771 (Ala. Crim. App. 1999).

Here the questions and summaries propounded by

the trial court were not accusatory or crossexamination type questions that amounted to an

abdication of the duties of the trial court; nor

were the comments made in such a manner as to

indicate that the judge was biased or to indicate

the judge’s opinion. These remarks were

straightforward, clarifying questions dealing with

the validity and scientific acceptability of the

state’s forensic evidence. These were questions

that trial court had a duty to resolve before

allowing the jury to consider the evidence in its

factfinding role. The trial court did not err, nor

did it abandon its neutral role, when it asked a

prosecution witness some clarifying questions

concerning DNA testing. Johnston v. City of

Birmingham, 338 So. 2d 7 (Ala. Crim. App. 1976).

(Doc. 10, Ex. 4 at 3-5).

Again, in order to obtain federal habeas relief on the basis

of claim 2, Williams must show that the state courts resolved this

claim in a manner contrary to or involving an unreasonable

application of federal law as established by United States Supreme

Court precedent. Williams has offered no United States Supreme law

Case 1:07-cv-00123-KD-B Document 22 Filed 03/03/10 Page 16 of 29
17

to support his claim and thus has failed to meet this burden. 

The Eleventh Circuit Court of Appeals addressed the issue of

trial courts commenting on witness testimony in United States v.

Block, 755 F.2d 770 (11th Cir. 1985). In Block, the defendants

alleged they were denied a fair trial by the actions and comments

of the trial judge during the course of the trial. Specifically,

the defendants alleged that the court made numerous comments in the

presence of the jury which demonstrated the court’s belief in their

guilt, notably that the judge admonished one defendant not to make

any “smart-ass remarks” while testifying. The Eleventh Circuit,

however, determined that the interventions of the trial court were

not so numerous or egregious to require reversal. The Court noted

the complex nature of the evidence and the fact that the

defendants’ trial took 10 weeks to complete. The Court also

observed that given one defendant testified three and one-half days

and was asked more than 1800 questions by the defense and the

prosecution, the court’s 33 questions was not reversible error. 

The Block court observed:

A trial judge is ... more than a mere moderator and

is under a duty to question witnesses and comment

on evidence when it appears necessary. United

States v. Harris, 720 F.2d 1259, 1260-61 (11th Cir.

1983); United States v. Bartlett, 633 F.2d 1184,

1188 (5th Cir.), cert. denied, 454 U.S. 820, 102 S.

Ct. 101, 70 L. Ed. 2d 91 (1981). The trial court

may interrogate a witness to clarify his testimony

or to insure that a case is fairly tried. Manchack

v. S/S Overseas Progress, 524 F.2d 918, 919 (5th

Cir. 1975). On the other hand, a trial judge

improperly interjects himself into the trial by

Case 1:07-cv-00123-KD-B Document 22 Filed 03/03/10 Page 17 of 29
18

questioning witnesses when the attorneys are

competently conducting their cases. United States

v. Welliver, 601 F.2d 203, 208-09 (5th Cir. 1979);

United States v. Daniels, 572 F.2d 535, 541 (5th

Cir. 1978).

Also, in United States v. Blackburn, 165 Fed. Appx. 721, 724 (11th

Cir. 2006), the Eleventh Circuit held that while the cumulative

effect of numerous intrusions by the trial court might inhibit a

defendant’s right to a fair trial, prejudice could be cured by

instructing the jury not to infer the court’s opinion from comments

or rulings. 

In this case, the undersigned finds that the trial judge’s

attempt to avoid jury confusion stemming from Williams’ questioning

of witness Jones was necessary given that Williams was proceeding

pro se and needed guidance in many aspects of legal procedure,

including the phrasing of questions to witnesses in order not to

run afoul of rules against hearsay, and the appropriate time to

offer evidence. Indeed, the record reflects that the court found

it necessary to intervene on more than one occasion to help clarify

Williams’ questioning of witnesses. See, e.g., (Doc. 11, Ex. 1,

Vol. 3, pp. 93, 98-99, 115-117, 132-33 (R.292, 297-98, 314-16, 331-

32)). See also (Doc. 11, Ex. 1, Vol. 2, pp. 56-63, 67-69, 96, 129,

160-61 (R.55-62, 66-68, 95, 128, 159-61)). 

Further, the undersigned finds no error or prejudice to

Williams as a result of the court’s interjections. See (Doc. 11,

Ex. 1, Vol. 3, pp. 89-139 (R.288-338)). It is clear from a reading

Case 1:07-cv-00123-KD-B Document 22 Filed 03/03/10 Page 18 of 29
7

As noted supra, Judge Kendall handled the preliminary

matters during Williams’ trial, while Judge Stout presided over

the remainder of the proceedings, including the examination of

William Jones. See (Doc. 11, Ex. 1, Vol. 2, p. 8 (R.7)).

19

of the transcript that the experienced trial judge played an active

role during the proceedings.7 However, the questions posed by the

court were not so “numerous or egregious as to constitute manifest

injustice.” Blackburn, 165 Fed. Appx. at 725 (citing United States

v. Benefield, 889 F.2d 1061, 1066 (11th Cir. 1989). The court’s

comments were intended to clarify the testimony given by Jones

regarding how he came to discover Petitioner’s name based on the

unknown DNA sample. Moreover, the Court, after attempting to

clarify Williams’ position and Jones’ response, stated: “I’m really

just trying to make sure we don’t confuse the jury, and they

understand the basic testimony that’s been elicited, but you’re

free to ask whatever you want to ask.” (Doc. 11, Ex. 1, Vol. 3, p.

90 (R. 289)). Thereafter, Williams availed himself of the

opportunity to question Jones further. 

Before the court interjected, it was not clear from the trial

testimony the scientific processes undertaken by Jones to link the

unknown sample of DNA to Williams. Williams’ repetitive, and at

times ambiguous, questions were potentially confusing to the jury.

Moreover, as prescribed in Blackburn, the trial court orally

charged the jury not to consider anything the court said as an

opinion on the evidence, stating: 

Case 1:07-cv-00123-KD-B Document 22 Filed 03/03/10 Page 19 of 29
20

It would be improper for me to have an opinion, and it’s

certainly improper for me to try to convey that opinion

to you. Please do not let any ruling I have made or

anything I have said during the source [sic] of this

trial, give you the impression that I have an opinion

about the true facts in this case one way or the other.

... [D]on’t take any comment I have made or anything I

have said to try to give you the impression that I have

an opinion about the facts, because that’s strictly your

job and not mine to determine the true facts in the case.

(Doc. 11, Ex. 1, Vol. 4, pp. 40-41 (R.439-440)). Further, the

court instructed the jury that they were the sole fact-finders in

this case. Thus, the undersigned finds that the court’s curative

instruction was sufficient to prevent prejudice, if any, and agrees

with the Alabama Court of Criminal Appeals that the trial judge

“did not abandon its neutral role.” Accordingly, the undersigned

cannot find that the state court adjudication was contrary to law

nor can it be found that the state court unreasonably applied

relevant precedent to the facts of this case. Accordingly,

Williams is not entitled to habeas relief on the basis of claim 2.

III. Claim 3

Williams next argues that he is entitled to habeas relief

because the trial court improperly admitted evidence concerning DNA

analysis, which constituted hearsay and which violated his right to

confront witnesses. Williams presented this same argument to the

Alabama Court of Criminal Appeals on direct appeal. Notably, that

court determined that Williams’ objection at trial related to the

constitutionality of the DNA testing procedures and his Sixth

Amendment right to confront witness, not hearsay. Thus, the court

Case 1:07-cv-00123-KD-B Document 22 Filed 03/03/10 Page 20 of 29
8

Section 36-18-30, Ala. Code 1975, provides: 

Expert testimony or evidence relating to the use

of genetic markers contained in or derived from

DNA for identification purposes shall be

21

held that Williams’ claim was not preserved for appellate review.

However, that court alternatively determined that Williams’ claim

had no merit and that the testimony did not constitute inadmissible

hearsay.

At trial, William Jones, who works with the Alabama Department

of Forensic Sciences in the Mobile Regional Laboratory, testified

that he ran an unknown DNA sample obtained from the victim’s shorts

through the CODIS DNA database and the name returned was for

Petitioner, Jerome Williams. Next, Jones next testified that a

known sample was obtained from Williams, and that he personally

tested the known sample that was obtained from Williams against the

unknown sample, which was obtained from the victim’s shorts, and

that it was a match. (Doc. 11, Ex. 1, Vol. 3, pp. 141-43 (R. 275-

283)). Williams objected to Jones’ testimony and argued that the

results were hearsay because the initial analysis of the unknown

sample was performed by CODIS and not by Jones. (Doc. 11, Ex. 1,

Vol. 3, pp. 49-50, 72-74, 88-89, 141-43 (R.248-49, 271-73, 287-88,

340-42)). As indicated, Williams raised Jones’ testimony as an

assignment of error on direct appeal. The Alabama Court of Criminal

Appeals held that the evidence was admissible under § 36-18-30,

Ala. Code 19758, and rejected Petitioner’s argument, finding no

Case 1:07-cv-00123-KD-B Document 22 Filed 03/03/10 Page 21 of 29
admissible and accepted as evidence in all cases

arising in all courts of this state, provided,

however, the trial court shall be satisfied that

the expert testimony or evidence meets the

criteria for admissibility as set forth by the

United States Supreme Court in Daubert, et. ux.,

et. al., v. Merrell Dow Pharmaceuticals, Inc.,

decided on June 28, 1993.

22

grounds for reversal, stating: 

Lastly Williams argues that the trial court

erred when, over his objection, Alabama Department

of Forensic Sciences Examiner Bill Jones was

allowed to testify that he entered the unknown DNA

sample that was extracted from the victim’s shorts

into the FBI’s CODIS database and was informed via

facsimile transmission that the profile matched

Williams. Specifically, he claims that the

information obtained from the database constituted

hearsay. Because Williams’s specific objection at

trial related to the constitutionality of the

testing procedures and his right to confront

witnesses, not hearsay, this issue is not properly

before this Court.

In D.D.A. v. State, 650 So. 2d 571 (Ala. Crim.

App. 1994), this Court supported its previous

holding in Hudgins v. State, 615 So. 2d 1297 (Ala.

Crim. App. 1993), that the right to confrontation

is not necessarily coextensive with the hearsay

rule. On that basis, a defendant’s objection

stated on the grounds of hearsay did not preserve

for appellate review a claim of violation of the

right to confront witnesses. Although in Crawford

v. Washington, 541 U.S. 36 (2004), the United

States Supreme Court seemed to make the distinction

less absolute in holding that the rights to

confrontation and protection from hearsay may or

may not be coextensive, we cannot say that the

CODIS results referenced by Jones in his testimony

were inadmissible hearsay.

Section 36-18-30, Ala. Code 1975, authorizes

the Department of Forensic Sciences to offer

testimony and evidence relating to the genetic

markers derived from or contained in DNA in all

Case 1:07-cv-00123-KD-B Document 22 Filed 03/03/10 Page 22 of 29
23

cases arising in all courts of this State pursuant

to the criteria outlines in Daubert v. Merrill-Dow

Pharmaceuticals, 509 U.S. 579 (1993). Even if we

determined that this issue was preserved for

appellate review, the CODIS results do not

constitute inadmissible hearsay. Thus, the trial

court did not err in allowing the testimony over

Williams’s objection.

We further note that the objected-to evidence

was subsequently admitted without objection as part

of State’s Exhibit 11, the Department of Forensic

Sciences report indicating that the unknown DNA

sample extracted from the victim’s shorts matched

Williams’s DNA profile. Thus, any error by the

trial judge in overruling Williams’ objection was

made harmless by the admission of the report

without another objection or a continuing

objection. See McCall v. State, 833 So. 2d 673,

677 (Ala. Crim. App. 2001). 

For all of the foregoing reasons, the judgment

of the trial court is due to be affirmed.

AFFIRMED.

(Doc. 10, Ex. 4 at 5-6).

In Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354,

158 L. Ed. 2d 177 (2004), the Supreme Court held that held that the

Confrontation Clause does not allow the admission at trial of

“testimonial” statements of a witness who does not appear at the

trial unless the witness is unavailable and the defendant has had

prior opportunity to cross-examine him. As asserted by Respondent,

a review of witness Jones’ trial testimony reflects that his

statement that the FBI CODIS database showed that the unknown DNA

sample which was obtained from the victim’s shorts was that of

Williams did not violate Crawford v. Washington because the

Case 1:07-cv-00123-KD-B Document 22 Filed 03/03/10 Page 23 of 29
24

statement was not offered to prove the truth of the assertion but

was instead offered to explain what led Jones to personally analyze

a DNA sample obtained from Williams with the unknown sample

obtained from the victim’s shorts, and determine that they were a

match. (Doc. 11, Ex. 1, Vol. 3, pp. 54-84 (R.253-283). See

Barriera-Vera, 303 Fed. Appx. 687, 697 (llth Cir.

2008)(“[A]dmission of [police officer’s] interview statements and

trial testimony regarding the anonymous phone call did not violate

hearsay rules or the Confrontation Clause because they were not

admitted for the truth of the matter asserted.”); see also United

States v. Tolliver, 454 F.3d 660, 666 (7th Cir. 2006) (rejecting

Crawford challenge to introduction of recorded conversations made

by Government informant and offered into evidence for purpose of

putting defendant's statements in context; noting that “aside from

the testimonial versus nontestimonial issue, a crucial aspect of

Crawford, is that it only covers hearsay, i.e., out-of-court

statements ‘offered in evidence to prove the truth of the matter

asserted’”); United States v. Faulkner, 439 F.3d 1221, 1226 (10th

Cir. 2006) (“One thing that is clear from Crawford is that the

[Confrontation] Clause has no role unless the challenged

out-of-court statement is offered for the truth of the matter

asserted in the statement”); State v. Rogers, 2005 WL 1576949, at

*3 (N.C. App. July 5, 2005)(“[T]estimony concerning Special Agent

Earle’s involvement simply explained to the jury how the CODIS data

Case 1:07-cv-00123-KD-B Document 22 Filed 03/03/10 Page 24 of 29
25

came to the attention of Special Agent Budzynski. It was not

offered to establish the CODIS match. Special agent Budzynski

testified that he conducted his own independent analysis of the

data, concluded that the two DNA profiles matched, and presented

the results of his analysis to the jury. The trial court did not

err in overruling the defendant’s objection.”).

Based upon a review of Williams’ Sixth Amendment claim, which

was considered by the Alabama Court of Criminal Appeals and denied

on the merits, the Court finds that he has failed to establish

under the "contrary to" clause of § 2254(d)(1) that the Alabama

Court of Criminal Appeals applied a rule that contradicts the

governing law as set forth in Supreme Court case law, or that the

court decided the case differently than the Supreme Court did in a

previous case presenting a set of materially indistinguishable

facts. Likewise, Williams has failed to establish under the

"unreasonable application" clause that the state court, though

recognizing the correct governing principles from the Supreme

Court's decisions, unreasonably applied those principles to the

facts in this case. Thus, Petitioner has not established that he is

entitled to relief under § 2254(d)(1). In addition, Williams has

failed to establish entitlement to relief under § 2254(d)(2) by

showing that the decision of the Alabama Court of Criminal Appeals

was based on an unreasonable determination of the facts in light of

the evidence presented in the state court proceeding. This Court

Case 1:07-cv-00123-KD-B Document 22 Filed 03/03/10 Page 25 of 29
26

must presume as correct the determinations of all factual issues

made by the state court. 28 U.S.C. § 2254(e). Williams has not

rebutted that presumption of correctness by clear and convincing

evidence. Accordingly, Williams’ request for habeas relief on the

basis of his Sixth Amendment claim is denied.

CERTIFICATE OF APPEALABILITY

A prisoner seeking a writ of habeas corpus has no absolute

entitlement to appeal a district court's denial of his petition. 28

U.S.C. § 2253(c)(1). Rather, pursuant to Rule 11(a) of the Rules

Governing § 2254 Cases, “[t]he district court must issue or deny a

certificate of appealability when it enters a final order adverse

to the applicant. Rule 11(a) of the Rules Governing 2254 Cases. “A

[COA] may issue ... only if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). To make such a showing, petitioner “must demonstrate

that reasonable jurists would find the district court’s assessment

of the constitutional claims debatable or wrong.” Tennard v.

Dretke, 542 U.S. 274, 282, 124 S. Ct. 2562, 159 L. Ed. 2d 384

(2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct.

1595, 146 L. Ed. 2d 542 (2000)), or that “the issues presented were

‘adequate to deserve encouragement to proceed further.’” Miller-El

v. Cockrell, 537 U.S. 322, 336, 123 S. Ct. 1029, 154 L. Ed. 2d 931

(2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4, 103 S.

Ct. 3383, 77 L. Ed. 2d 1090 (1983)). Based upon a careful review of

Case 1:07-cv-00123-KD-B Document 22 Filed 03/03/10 Page 26 of 29
27

the record in this case, the undersigned opines that Williams has

not made the requisite showing. Thus, he is not entitled to a

certificate of appealability.

CONCLUSION

Based on the foregoing, the undersigned Magistrate Judge is of

the opinion that Petitioner’s rights were not violated and that his

request for habeas corpus relief should be denied. The undersigned

further opines that Petitioner is not entitled to a certificate of

appealability. It is so recommended.

The attached sheet contains important information regarding

objections to the report and recommendation of the Magistrate

Judge.

DONE this 2nd day of March, 2010.

 /s/ SONJA F. BIVINS 

UNITED STATES MAGISTRATE JUDGE

Case 1:07-cv-00123-KD-B Document 22 Filed 03/03/10 Page 27 of 29
9

The Court’s Local rules are being amended to reflect the

new computations of time as set out in the amendments to the

Federal Rules of Practice and Procedure, effective December 1,

2009.

MAGISTRATE JUDGE’S EXPLANATION OF PROCEDURAL RIGHTS

AND RESPONSIBILITIES FOLLOWING RECOMMENDATION

AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

1. Objection. Any party who objects to this recommendation or

anything in it must, within fourteen (14) days of the date of

service of this document, file specific written objections with the

clerk of court. Failure to do so will bar a de novo determination

by the district judge of anything in the recommendation and will

bar an attack, on appeal, of the factual findings of the magistrate

judge. See 28 U.S.C. § 636(b)(1)(c); Lewis v. Smith, 855 F.2d 736,

738 (11th Cir. 1988). The procedure for challenging the findings

and recommendations of the magistrate judge is set out in more

detail in SD ALA LR 72.4 (June 1, 1997), which provides, in part,

that:

A party may object to a recommendation entered by a magistrate

judge in a dispositive matter, that is, a matter excepted by 28

U.S.C. § 636(b)(1)(A), by filing a "Statement of Objection to

Magistrate Judge’s Recommendation" within ten days9

 after being

served with a copy of the recommendation, unless a different time

is established by order. The statement of objection shall specify

those portions of the recommendation to which objection is made and

the basis for the objection. The objecting party shall submit to

the district judge, at the time of filing the objection, a brief

setting forth the party’s arguments that the magistrate judge’s

recommendation should be reviewed de novo and a different

disposition made. It is insufficient to submit only a copy of the

original brief submitted to the magistrate judge, although a copy

of the original brief may be submitted or referred to and

incorporated into the brief in support of the objection. Failure

to submit a brief in support of the objection may be deemed an

abandonment of the objection.

A magistrate judge’s recommendation cannot be appealed to a

Court of Appeals; only the district judge’s order or judgment can

be appealed.

2. Opposing party’s response to the objection. Any opposing

party may submit a brief opposing the objection within fourteen

(14) days of being served with a copy of the statement of

objection. Fed. R. Civ. P. 72; SD ALA LR 72.4(b). 

Case 1:07-cv-00123-KD-B Document 22 Filed 03/03/10 Page 28 of 29
3. Transcript (applicable where proceedings tape recorded).

Pursuant to 28 U.S.C. § 1915 and Fed. R. Civ. P. 72(b), the

magistrate judge finds that the tapes and original records in this

action are adequate for purposes of review. Any party planning to

object to this recommendation, but unable to pay the fee for a

transcript, is advised that a judicial determination that

transcription is necessary is required before the United States

will pay the cost of the transcript.

Case 1:07-cv-00123-KD-B Document 22 Filed 03/03/10 Page 29 of 29