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

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

THOMAS SINCLAIR, :

Petitioner, :

v. : CIVIL ACTION NO. 07-00214-CG-B

WARDEN JERRY FERRELL, :

Respondent. :

REPORT AND RECOMMENDATION

Thomas Sinclair, 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. Petitioner challenges the

validity of his 2004 conviction by a jury in the Clarke County,

Alabama, Circuit Court for first degree rape, for which he received

a sentence of ten (10) years imprisonment. (Doc. 1; Doc. 6).

This matter is now before the undersigned Magistrate Judge on

Petitioner’s petition, Respondent’s answer and amended 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

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

Case 1:07-cv-00214-CG-B Document 16 Filed 03/15/10 Page 1 of 29
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

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.

2

U.S.C. § 2254(e)(2).

FINDINGS OF FACT

The Alabama Court of Criminal Appeals found the facts of this

case to be as follows:2

Case 1:07-cv-00214-CG-B Document 16 Filed 03/15/10 Page 2 of 29
(citing Sumner v. Mata, 449 U.S. 539, 547 (1981)). 

3

The appellant, Thomas Sinclair was

convicted of one count of first-degree rape, a

violation of § 13A-6-61, Ala. Code 1975. He

was sentenced to 10 years’ imprisonment. This

appeal followed.

(Doc. 6, Ex. C at 1). 

Sinclair was indicted by the Clarke County Grand Jury on

August 14, 2003, and charged with rape, first degree. See (Docs.

7, Ex. A at 12-13). On November 30, 2004, Petitioner executed a

Plea of Not Guilty and Waiver of Arraignment. (Id. at 55).

Following a jury trial in the Circuit Court of Clarke County,

Alabama, Petitioner was convicted on December 1, 2004, of one count

of first degree rape, in violation of § 13A-6-61, Ala. Code 1975.

Petitioner was represented by attorneys J. Glen Padgett and Robert

Roy Bedwell. (Docs. 1 at 10; 7, Ex. A at 7). 

Ben Kelly, Esq., was appointed to represent Sinclair during

the direct appeal of his conviction and sentence. Attorney Kelly

filed a motion to withdraw and a brief in substantial compliance

with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed.

2d 493 (1967), stating that his review of the record established no

meritorious issues that could be raised on appeal from Petitioner’s

convictions. (Doc. 6, Ex. B). Sinclair filed a letter with the

appellate court, pro se, stating that he wished to pursue a claim

of ineffective assistance of counsel. (Doc. 6, Ex. C). On April 7,

2005, the Alabama Court of Criminal Appeals notified Sinclair that

Case 1:07-cv-00214-CG-B Document 16 Filed 03/15/10 Page 3 of 29
3

The appellate court opined:

Our review of the record reveals that Sinclair did

not present this issue to the trial court; as such, it

is not properly preserved for appellate review. Review

by this Court is limited to matters properly raised

before the trial court. See Carter v. State, 627 So.2d

1027 (Ala. Crim. App. 1992), aff’d, 627 So.2d 1030

(Ala. Crim. App. 1993). “Even constitutional claims may

be waived on appeal if not specifically presented to

the trial court.” ... “‘“[T]o preserve an issue for

appellate review, it must be presented to the trial

court by timely and specific motion setting out the

specific grounds in support thereof.... An issue raised

for the first time on appeal is not correctly before

this court.”’”... In addition, “‘[w]e will not make

exception to the rule that a claim for ineffective

assistance of counsel may not be considered on appeal

if it was not first presented to the trial court.’”

(Doc. 6, Ex. C at 2, n.1). 

4

he would only be permitted to raise his claim of ineffective

assistance of counsel if he raised that claim at the trial court

level either during trial or within 30 days of sentencing. See

(Doc. 6, Ex. C). In affirming the judgment of the circuit court,

the Alabama Court of Criminal Appeals, by unpublished memorandum,

specifically determined that appellate review was limited to

matters properly raised before the trial court and that Sinclair

did not present his claim to the trial court; thus, Sinclair’s

claim was not preserved for review.3 Additionally, the court noted

that it “reviewed the record in this case and [] found no error

harmful to Sinclair’s rights. (Doc. 6, Ex. C at 2). A certificate

of judgment was entered on June 29, 2005. (Id. at Ex. D). The

record does not reflect, and Sinclair does not allege that he

Case 1:07-cv-00214-CG-B Document 16 Filed 03/15/10 Page 4 of 29
5

sought a rehearing or that he filed a petition seeking certiorari

review before the Supreme Court of Alabama. 

On May 5, 2006, Sinclair filed a petition for post-conviction

relief under Rule 32 of the Alabama Rules of Criminal Procedure,

which was summarily denied by the trial court on June 13, 2006.

(Docs. 1; 6, Ex. E at 32); see (Doc. 6, Ex. E, p. 13). Sinclair

appealed, and the Alabama Court of Criminal Appeals affirmed the

trial court’s decision on October 27, 2006. (Docs. 1; 6, Ex. I). In

affirming the trial court’s denial of Sinclair’s Rule 32 petition,

the Alabama Court of Criminal Appeals ruled that Sinclair’s claims

of ineffective assistance of trial and appellate counsel “were

either precluded from appellate review or without merit.” (Id.)

Sinclair’s subsequent application for rehearing was overruled on

December 1, 2006. (Doc. 6, p. 2; Ex. J). Sinclair then filed a

petition seeking certiorari review before the Alabama Supreme

Court. (Doc. 6, Ex. K). His petition was denied, and a certificate

of judgment was entered on February 9, 2007. (Doc. 6, Ex. L). On

that same day, the Alabama Court of Criminal Appeals issued its

certificate of judgment. (Doc. 6, Ex. M). 

On or about March 10, 2007, Sinclair filed the instant

petition for a writ of habeas corpus, in which he alleges several

instances of ineffective assistance of counsel in support of his

request for habeas relief. (Doc. 1). The essence of Sinclair’s

claims is that his trial counsel rendered ineffective assistance

Case 1:07-cv-00214-CG-B Document 16 Filed 03/15/10 Page 5 of 29
4

Respondent, on May 15, 2007, filed his initial answer to

Sinclair’s petition seeking habeas corpus relief, wherein he

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

statute of limitation. (Doc. 6). However, after a thorough

review of the record, the undersigned determined that Sinclair’s

petition was, in fact, timely filed and directed Respondent to

file an amended answer by January 25, 2010. (Doc. 13). By Order

dated February 5, 2010, the time for Respondent to submit an

amended answer was extended to February 12, 2010. (Doc. 14).

Accordingly, pursuant to the Court’s Order, Respondent

subsequently filed his amended answer. (Doc. 15).

6

when counsel denied him his right to call witnesses and to testify

on his behalf; misinformed him about his trial; failed to

investigate and to prepare for trial and admitted to being

inexperienced in rape cases. (Id.) In his Amended Answer4,

Respondent asserts that Sinclair is not entitled to relief on the

basis of any of his claims. (Doc. 15). Specifically, Respondent

contends that Sinclair’s claims are procedurally defaulted and were

insufficiently pleaded in his federal habeas petition. (Id.) This

case is ripe for a decision by this Court.

DISCUSSION

Upon careful review of the record, the undersigned notes that

Sinclair’s claims were raised in his direct appeal and in his Rule

32 proceedings, were considered by the state courts, and were

denied on the merits. 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– 

Case 1:07-cv-00214-CG-B Document 16 Filed 03/15/10 Page 6 of 29
7

(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).

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

Case 1:07-cv-00214-CG-B Document 16 Filed 03/15/10 Page 7 of 29
8

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 of rebutting such a presumption of

correctness by clear and convincing evidence. 28 U.S.C. §

2254(e).

To prevail on any of his claims of ineffective assistance of

counsel, Petitioner bears the additional burden of establishing by

a preponderance of the evidence that his trial counsel’s

performance was deficient and that he was actually prejudiced by

the inadequate performance. Strickland v. Washington, 466 U.S. 668

(1984). The elements to be considered are as follows: 

First, the defendant must show that counsel’s

performance was deficient. This requires

showing that counsel made errors so serious

that counsel was not functioning as the

“counsel” guaranteed the defendant by the

Sixth Amendment. Second, the defendant must

show that the deficient performance prejudiced

the defense. This requires showing that

counsel’s errors were so serious as to deprive

the defendant of a fair trial, a trial whose

result is reliable.

Id., 466 U.S. at 687. Thus, Sinclair must demonstrate that his

counsel’s performance “fell below an objective standard of

Case 1:07-cv-00214-CG-B Document 16 Filed 03/15/10 Page 8 of 29
9

reasonableness,” Strickland, 466 U.S. at 688, and that “there is

a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.”

Id. at 694. “Establishing these two elements is not easy: ‘the

cases in which habeas petitioners can properly prevail on the

ground of ineffective assistance of counsel are few and far

between.’” Van Poyck v. Florida Dep’t of Corr., 290 F.3d 1318,

1322 (11th Cir. 2002) (quoting Waters v. Thomas, 46 F.3d 1506, 1511

(11th Cir. 1995)). 

An ineffective assistance of counsel claim is examined under

the “totality of the circumstances.” House v. Balkcom, 725 F.2d

608, 615 (11th Cir. 1984). An attorney’s performance is presumed

to have been reasonable and must not be examined with the aid of

judicial hindsight. Messer v. Kemp, 760 F.2d 1080, 1088 (11th Cir.

1985). A federal court must apply a “heavy measure of deference to

counsel’s judgments.” Singleton v. Thigpen, 847 F.2d 668, 670 (11th

Cir. 1988) (quoting Strickland, 446 U.S. at 691).

The test has nothing to do with what the best

lawyers would have done. Nor is the test even

what most good lawyers would have done. We

ask only whether some reasonable lawyer at the

trial could have acted, in the circumstances,

as defense counsel acted at trial. . . . We

are not interested in grading lawyers’

performances; we are interested in whether the

adversarial process at trial, in fact, worked

adequately. 

Grayson v. Thompson, 257 F.3d 1194, 1216 (11th Cir. 2001) (quoting

White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992)). The

Case 1:07-cv-00214-CG-B Document 16 Filed 03/15/10 Page 9 of 29
5

As indicated above, Sinclair’s claims were barred on direct

appeal due to his failure to properly raise them before the trial

court. Specifically, the Alabama Court of Criminal Appeals

determined that Sinclair’s ineffective assistance of trial

counsel claims were precluded because of his failure to raise

those claims either during trial or within 30 days of the date of

sentencing. (Doc. 6, Ex. C). However, Sinclair presented his

claims in a Rule 32 petition, which was denied by the trial

court. (Doc. 6, Ex. E at 32). The relevant portion of the trial

court’s Order reads as follows:

The Petitioner has failed to sufficiently prove by a

preponderance of the evidence an issue of material fact

or law that would entitle him to relief. (See Rule 32.2

A.R.Cr.P.) It was Petitioner’s decision not to testify

and not his counsels’ as he alleges. Furthermore, the

Petitioner was not prejudiced by his counsels’

strategic decision to only call one defense witness.

Furthermore, a bare allegation that a constitutional

right has been violated and mere conclusions of law

shall not be sufficient to warrant any further

proceedings. (See Rule 32.6(b) A.R.Cr.P.)

(Doc. 6, Ex. E at 32)

10

Court will consider each of Sinclair’s ineffective assistance of

counsel claims in turn.

As a preliminary matter, Respondent alleges that the decisions

of the Alabama state courts, denying Sinclair relief, are correct

and that Sinclair’s instant claims would be procedurally defaulted

in this Court because the state courts properly determined that his

petition was ripe for summary disposition under Ala.R.Cr.P.

32.7(d). (Doc. 15).5

 The Alabama Court of Criminal Appeals affirmed

the lower court’s decision denying the claims in Sinclair’s Rule 32

pleadings, stating:

Here, Sinclair has failed to meet the two-prong test

required by Strickland to prevail on an ineffective

Case 1:07-cv-00214-CG-B Document 16 Filed 03/15/10 Page 10 of 29
11

assistance of counsel claim. Sinclair has failed to prove

that his counsel’s performance was deficient as well as

failing to prove how that alleged deficiency prejudiced

his defense. Sinclair’s claims of ineffectiveness appear

to concern his attorney’s trial strategy. When reviewing

strategic decisions, this Court has held:

“Strategic choices made after a thorough

investigation of relevant law and facts are

virtually unchallengeable.” Ex parte Lawley, 512

So.2d at 1372. Further, a mere difference of

opinion between defendant and his trial counsel is

insufficient to render counsel’s performance

ineffective. Patrick v. State, 680 So.2d 959, 962

(Ala. Crim. App. 1996). Under the circumstances of

this case, defense counsel made a well-reasoned

decision to focus his efforts on that part of the

trial that he believed offered the greatest chance

of success. We see no reason to second-guess

defense counsel’s decisions regarding this

strategy.”

Miller v. State, 913 So.2d 1148, 1161 (Ala. Crim. Appl.

2004). Based on the foregoing, it is clear that

Sinclair’s claim of ineffective assistance of trial and

appellate counsel is without merit.

Rule 32.7(d), Ala. R. Crim. P., authorizes the trial

court to summarily dismiss a petitioner’s Rule 32

petition:

“[i]f the court determines that the petition is

not sufficiently specific, or is precluded, or

fails to state a claim, or that no material issue

of fact or law exists which would entitle the

petitioner to relief under this rule and that

purpose would be served by any further

proceedings, the court may either dismiss the

petition or grant leave to file an amended

petition.”

[] As discussed above, Sinclair’s claims were either

precluded from appellate review or without merit. Thus,

summary disposition was appropriate.

Based on the foregoing, the judgment of the trial

court is affirmed.

Case 1:07-cv-00214-CG-B Document 16 Filed 03/15/10 Page 11 of 29
6

Summary rejection of a claim by a state court, even without

explanation, qualifies as an adjudication of the merits. See

Arroyo v. Sec'y, Fla. Dep’t of Corrs., 2010 U.S. Dist. LEXIS

12794, at *6 (M.D. Fla. Jan. 26, 2010).

12

AFFIRMED.

(Doc. 6, Ex. I) (citations omitted). Thus, contrary to

Respondent’s assertions, Sinclair’s challenges to his trial

counsel’s performance were, indeed, rejected on the merits by the

state trial and appellate courts.6 Consequently, the present

challenge to trial counsel's performance should be addressed

applying the deferential standard for federal court review of state

court adjudications, as required by AEDPA.

As noted supra, the essence of all of Sinclair’s claim is the

alleged ineffective assistance of trial counsel. Specifically,

Sinclair alleges he received ineffective assistance of counsel

where his trial attorneys, J. Glen Padgett and Robert Roy Bedwell,

denied him his right to call witnesses and to testify on his own

behalf, misadvised him about his trial and failed to fully

investigate the case. Sinclair also alleges that trial counsel were

inexperienced in rape trials. (Doc. 1, p. 7). After a thorough

review of the record in this case, and construing Sinclair’s

vaguely pled petition liberally, it appears that Sinclair is

asserting the identical allegations he raised in his direct appeal

and Rule 32 proceedings.

In his state court proceedings, Sinclair alleged that his

Case 1:07-cv-00214-CG-B Document 16 Filed 03/15/10 Page 12 of 29
7

In his Rule 32 petition filed in the trial court, Sinclair

states that Alexander and Crawford were in fact subpoenaed to

testify (Doc. 6, Ex. E at 16); however, in Sinclair’s response to

the State’s Answer to his Rule 32 petition, he states that “trial

counsel has no subppoenas [sic] issued for the named witness.”

(Doc. 6, Ex. E at 33). It is not clear from the record whether

trial subpoenas were in fact issued for either Crawford or

Alexander. 

13

trial counsel were ineffective for failing to call witnesses in his

defense to show that he was innocent of the offense of rape and

forbade him from testifying. To be exact, Sinclair contends that he

advised trial counsel that there were two (2) witnesses he wished

to call at trial, namely, Glen Alexander and Franky Crawford, who

“would have and could have verified the Petitioners [sic]

innocence.” (Doc. 6, Ex. E at 15).7

 Further, Sinclair avers that

the testimony of these witnesses “went to the core of the

Petitioner’s defense, which was the fact that the Petitioner and

the alleged victim was [sic] in fact having an extramarital (so-tospeak) relationship, and one [sic] the victim has learned that her

male counterpart had become suspicious, the alleged victim created

this story of the Petitioner raping her....” (Doc. 6, Ex. E at 17).

According to Sinclair, both potential witnesses would somehow

corroborate his claim that he was not guilty of rape and could

verify that he and the rape victim in his case were engaged in a

consensual sexual relationship. (Doc. 6, Exs. E & F). Sinclair

maintains that had Alexander and Crawford’s testimonies been heard,

the outcome of the trial would have been different as to the charge

Case 1:07-cv-00214-CG-B Document 16 Filed 03/15/10 Page 13 of 29
8

Respondent contends that Sinclair has failed to allege the

substance of Alexander and Crawford’s testimonies and that even

if he had, their testimonies would amount merely to inadmissible

hearsay. (Doc. 15).

9

The defense called one witness to testify, Ralph D. Neal,

Jr., M.D. See (Doc. 7, Vol. 2 at 9).

10The Eleventh Circuit in Bonner v. City of Prichard, 661

F.2d 1206, 1209 (11th Cir. 1981) (en banc), adopted as binding

precedent the decisions of the former Fifth Circuit rendered

prior to October 1, 1981.

14

of first degree rape.8 (Id.)

Based on the record before the Court, the undersigned finds

that Sinclair has not shown that defense counsel erred in failing

to call either Alexander or Crawford as witnesses.9 Generally,

complaints of uncalled witnesses are not favored because the

presentation of testimonial evidence is a matter of trial strategy

and because allegations of what a witness would have testified to

are largely speculative. See Buckelew v. U.S., 575 F.2d 515 (5th

Cir. 1978) (citations omitted)10. “Failing to call a particular

witness constitutes ineffective assistance of counsel only when the

absence of the witness’ testimony amounts to the abandonment of a

viable, outcome-changing defense.” Jordan v. McDonough, 2008 U.S.

Dist. LEXIS 831, *12, 2008 WL 89848, *5 (M.D. Fla. Jan. 7, 2008)

(citations omitted). “In all other cases, the failure to call a

witness is either an objectively-reasonable strategic decision or

a non-prejudicial error.” Id. (citation omitted). 

Additionally, self-serving speculation about putative witness

Case 1:07-cv-00214-CG-B Document 16 Filed 03/15/10 Page 14 of 29
15

testimony will not sustain an effective assistance of counsel

claim. United States v. Ashimi, 932 F.2d 643, 650 (7th Cir. 1991);

see Malone v. Sec’y, Fla. Dep’t of Corr., 2009 WL 2579216, at *3

(M.D. Fla. Aug. 20, 2009). Rather, to succeed on a challenge to

trial counsel’s failure to subpoena or call a witness, Sinclair

must present evidence about the witness testimony in the form of

actual testimony by the witness or through a witness’ affidavit

stating to what they would have testified. Ashimi, 932 F.2d at 650.

Plainly stated, a petitioner cannot simply state that the testimony

sought would have been favorable. 

Sinclair has clearly not demonstrated attorney error based on

his counsel’s failure to call Alexander and Crawford as witnesses.

First, Sinclair has failed to present evidence of the actual

testimony that was to be offered or an affidavit from either

witness; therefore, he has not made the requisite factual showing.

Second, Sinclair has failed to show that Alexander or Crawford

could have been located even if they had been subpoenaed or that

their testimonies, if adduced, would have been admissible at trial,

let alone favorable. Where a petitioner fails to make the necessary

factual showing, mere conclusory allegations are insufficient to

demonstrate that trial counsel was ineffective for failing to call

a witness to testify. See Strickland, 466 U.S. at 688-689; see also

Williamson v. Moore, 221 F.3d 1177, 1181 (11th Cir. 2000) (“Counsel

cannot be said to be ineffective for failing to call an unavailable

Case 1:07-cv-00214-CG-B Document 16 Filed 03/15/10 Page 15 of 29
16

witness.”) (citation omitted). Third, although Alexander and

Crawford may have testified that Sinclair and the victim had been

engaged in a consensual sexual relationship, Sinclair does not

allege that they would have presented testimony that they were

present and witnessed the alleged rape, that Sinclair was not

present when the alleged rape occurred or that Sinclair was not the

actual perpetrator. Thus, there is no basis for believing that

their testimony would have likely resulted in “a viable, outcome

changing defense.” Jordan, 2008 U.S. Dist. LEXIS 831 at *12, 2008

WL 89848 at *5. 

Counsel’s decision whether to call a particular witness is a

matter of trial strategy entitled to great deference. Chandler v.

United States, 218 F.3d 1305, 1314 (11th Cir. 2000) (en banc)

(citing Waters v. Thomas, 46 F.3d 1506, 1512, 1518-19 (11th Cir.

1995) (en banc)). “Which witnesses, if any, to call, and when to

call them, is the epitome of a strategic decision, and it is one

that [the court] will seldom, if ever, second guess.” Waters, 46

F.3d at 1512; Chandler, 218 F.3d at 1314 n. 14 (describing the

decision to call some witnesses and not others as “the epitome of

a strategic decision” (quotation marks omitted)); United States v.

Long, 674 F.2d 848, 855 (11th Cir. 1982) (appellate court “will not

second-guess tactical decisions of counsel in deciding whether to

call certain witnesses”).

Further, even assuming that trial counsel’s failure to call

Case 1:07-cv-00214-CG-B Document 16 Filed 03/15/10 Page 16 of 29
17

Alexander or Crawford to support Sinclair’s theory was somehow

deficient, Sinclair has not shown that such failure prejudiced him

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

Strickland, 466 U.S. at 688. Put another way, Sinclair has not

shown that a reasonable probability exists that the outcome of the

case would have been different if his lawyers had taken the action

that he alleges they should have taken. Because Sinclair’s trial

attorneys’ tactical decision not to call Alexander or Crawford as

witnesses was well within the range of prevailing professional

standards, this claim fails under Strickland. 

In addition, Sinclair contends that his trial counsel

prevented him from testifying in his own defense. Again, although

not specified herein, in Petitioner’s previous pleadings in the

state courts, he complains that he relied on trial counsel’s advice

in deciding whether or not to testify in his own defense and that

“attorneys for the Petitioner merely scared the Petitioner from the

stand by using the State entitlement to cross examine this

petitioner and bring up other insignificant charges, which clearly

worked and kept the Petitioner from testifying which was counsel’s

choice and not the petitioner who was claiming his innocence....”

(Doc. 6, Ex. E at 34-5). 

It is well settled that a criminal defendant has a fundamental

constitutional right to testify in his own behalf at trial. Rock

v. Arkansas, 483 U.S. 44, 49-52, 107 S. Ct. 2704, 97 L. Ed. 2d 37

Case 1:07-cv-00214-CG-B Document 16 Filed 03/15/10 Page 17 of 29
18

(1987); United States v. Teague, 953 F.2d 1525, 1532 (11th Cir.

1992) (en banc). Thus, every criminal defendant is privileged to

testify in his own defense or refuse to do so. Faretta v.

California, 422 U.S. 806, 834 n. 45, 95 S. Ct. 2525, 45 L. Ed. 2d

562 (1975) (quotation omitted). Defense counsel bears the primary

responsibility for advising the defendant of his right to testify

or not to testify, the strategic implications of each choice, and

that it is ultimately for the defendant himself to decide. Teague,

953 F.2d at 1533. Because the burden of ensuring that a criminal

defendant is informed of the nature and existence of the right to

testify rests upon trial counsel, it is therefore a component of

effective assistance of counsel. Teague, 953 F.2d at 1533; Sexton

v. French, 163 F.3d 874, 882 (4th Cir. 1998). 

The record in this case reflects that after being fully

advised of his right to testify, Sinclair affirmatively advised the

trial judge that he, and not his lawyers, elected not to testify at

trial:

Mr. Padgett: Judge, I just want to put on the record

that we have discussed the matter of whether or not Mr.

Sinclair will testify in this trial. And we discussed

it with Mr. Sinclair, and he is determined that he is

not going to testify in this trial.

Is that right, Mr. Sinclair?

The Defendant: Yes, sir.

Mr. Bedwell: And you feel it’s in your best interest,

Thomas, not to testify in this trial?

The Defendant: Yes, sir, I do.

Case 1:07-cv-00214-CG-B Document 16 Filed 03/15/10 Page 18 of 29
19

Mr. Bedwell: Have we tried to persuade you in anyway as

not to testify?

The Defendant: No, sir.

Mr. Bedwell: Have we told you it’s totally your

decision; if you want to testify you can?

The Defendant: Yes, sir.

Mr. Bedwell: And you choose not to testify in this

trial?

The Defendant: I do.

The Court: Is that all?

Mr. Bedwell: Yes, sir.

The Court: Anything from the State?

Mr. Winters: No, sir. Nothing from the State.

The Court: Okay. Thank you.

(Doc. 7, Vol. 2, pp. 34-35 (R.103-104)). Sinclair’s allegation that

he was improperly precluded from testifying is affirmatively

contradicted by the record, and the state court was entitled to

rely upon Petitioner’s statements on the record. Further,

Sinclair’s acknowledgment to the trial judge demonstrates his

ultimate accord with the defense strategy and belies his allegation

that counsel forbade him from testifying. Moreover, such advice of

counsel was clearly reasonable under the circumstances, amounting

to proper trial strategy, given the fact that Sinclair’s

credibility, due to a prior criminal history, would have been

subject to attack by the prosecution. See Strickland, 466 U.S. at

Case 1:07-cv-00214-CG-B Document 16 Filed 03/15/10 Page 19 of 29
11Sinclair’s allegation that counsel “misadvised” him about

his trial is unclear. As best the Court can discern, Sinclair

appears to allege that not only did trial counsel deny him his

right to testify, but they misinformed him concerning the value

or necessity of his testimony at trial. See (Doc. 6, Ex. F at

17).

20

689-91; United States v. Costa, 691 F.2d 1358, 1364 (11th Cir.

1982). Aside from his bare assertions, Sinclair has offered nothing

to demonstrate that his statements to the trial judge were false,

that he did not knowingly or voluntarily waive his right to testify

before the court, or that his trial counsel improperly coerced him

into not taking the stand. Sinclair has not alleged that he was not

apprised that he had a right to testify. To the contrary, he

admits repeatedly throughout his pleadings that counsel advised him

of this right but contends that counsel “misadvised him on

testifying In his own defense....” (Doc. 6, Ex. F at 17).

Moreover, even if Sinclair testified to a having a prior

relationship with the victim and made a blanket assertion of

innocence, or attempted to negate his involvement in the offenses,

he has not established any basis to believe his testimony would

have resulted in an acquittal. Thus, Sinclair’s trial counsel was

not ineffective under Strickland for failing to call him to

testify. Accordingly, Petitioner’s instant claim fails to provide

a basis for relief. 

Interrelated with Sinclair’s claim that counsel prevented him

from testifying is his contention that counsel “misadvised”11 him

Case 1:07-cv-00214-CG-B Document 16 Filed 03/15/10 Page 20 of 29
21

concerning his trial. This claim of ineffective assistance of

counsel is also without merit. To begin, even if counsel did advise

Sinclair that they believed it would not be a good idea for him to

testify because if he did so, the State would be able to impeach

him with evidence of a prior conviction, Sinclair has not shown

that counsel’s actions were improper. See (Doc. 6, Ex. F at 35).

Trial counsel may advise the defendant, and should do so in the

strongest possible terms, not to testify if counsel believes that

it would not be wise for the defendant to testify. Teague, 953 F.2d

at 1533. Moreover, assuming arguendo that counsel’s advice to

Sinclair regarding his right to testify was somehow deficient,

Sinclair has not shown that he was prejudiced by counsel’s alleged

deficiency. The record reflects that defense counsel made a

reasonable investigation of the facts, including the victim’s

medical history, was well-prepared for trial, provided a thorough

cross-examination of the state’s witnesses, made appropriate

objections, and moved for judgment of acquittal at the close of the

State’s evidence. (Doc. 7, Vol. A, Pt. 1, pp. 4-111 (R. 4-73));

(Doc. 7., Vol. 2, pp. 5-38 (R. 74-107)). Accordingly, Sinclair

cannot demonstrate that there is a reasonable probability that the

jury would have rejected the evidence against him and acquitted him

based upon his proposed testimony. Because Sinclair has failed to

establish he was prejudiced by counsel’s allegedly erroneous advice

concerning whether he should testify, the instant claim likewise

Case 1:07-cv-00214-CG-B Document 16 Filed 03/15/10 Page 21 of 29
22

fails under Strickland. See Strickland, 466 U.S. at 688; see also

Evans v. McNeil, 2009 U.S. Dist. LEXIS 91121, at *45 (N.D. Fla.

Sept. 30, 2009) (Defendant failed to show that his testimony would

have established a reasonable doubt about his guilt in light of the

record); United States v. Willis, 273 F.3d 592, 598 (5th Cir. 2001)

(noting defendant did not even address the viability of the

countervailing tactical reasons that his counsel might have had for

declining to call him to the stand, that is, the government could

have easily attacked his credibility by using his prior drug

convictions); Ross v. Johnson, 2000 U.S. Dist. LEXIS 3576, 2000 WL

284204 (S.D. Ala. Feb. 7, 2000) (petitioner cannot establish

prejudice under Strickland since he failed to demonstrate that he

would have testified to an exculpatory set of facts that a

reasonable jury could have accepted, or that under these

circumstances his taking the stand would have affected the outcome

of trial).

Lastly, Sinclair alleges that his trial counsel failed to

fully investigate his case and that they were admittedly

inexperienced in rape cases. However, Sinclair fails to allege with

sufficient specificity his attorneys’ failures with respect to

these claims. For instance, Sinclair asserts that his attorneys

failed to investigate his case, but he does not concretely indicate

what action they should have reasonably taken. In addition,

Sinclair points to no clearly exculpatory evidence that his counsel

Case 1:07-cv-00214-CG-B Document 16 Filed 03/15/10 Page 22 of 29
23

should have discovered but did not. Nor has he indicated what, if

anything, a more thorough investigation would have revealed.

Indeed, an attorney is under no obligation to undertake an

unpromising investigation. Harvey v. United States, 850 F.2d 388,

403 (8th Cir. 1988). Sinclair’s claim in this regard should fail

because he has not demonstrated what possible affect further

investigation would have had on the jury’s verdict, nor has he

shown through credible evidence that his attorneys’ performance was

deficient. Aside from Sinclair’s self-serving allegations, he fails

to provide evidence to demonstrate deficient performance or actual

prejudice. As such, his bare and conclusory allegations of

ineffective assistance of counsel are insufficient to necessitate

further consideration. See United States v. Robinson, 64 F.3d 403,

405 (8th Cir. 1995); Ferguson v. United States, 699 F.2d 1071 (11th

Cir. 1983). Thus, Sinclair’s challenge to trial counsel’s alleged

failure to investigate does not show the harm necessary to

establish ineffective assistance of counsel. Strickland, 466 U.S.

at 687-688. 

To the extent Sinclair claims that he is entitled to relief

merely because, he alleges, counsel were inexperienced in defending

rape case, this claim must likewise fail. While the inexperience of

counsel may be a factor that contributes to a finding of a lack of

effective counsel, it is not in itself enough to establish

ineffective assistance of counsel. U.S. v. Kelley, 559 F.2d 399,

Case 1:07-cv-00214-CG-B Document 16 Filed 03/15/10 Page 23 of 29
24

401, (5th Cir.), cert. denied, 434 U.S. 1000, 98 S. Ct. 644, 54 L.

Ed. 2d 497 (1977). In other words, a lawyer’s inexperience does not

per se mean that he is ineffective. Chandler, 218 F.3d at 1316

n.18 (citation omitted). Indeed, an attorney can render effective

assistance of counsel even if he has had no prior experience in all

aspects of criminal advocacy. See United States v. Cronic, 466 U.S.

648, 665, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984) (rejecting the

presumption of ineffectiveness where defendant was represented by

a young attorney in his first jury trial); United States v. Lewis,

786 F.2d 1278, 1281-82 (5th Cir. 1986) . Whether a defendant has

been afforded the right to counsel depends on whether the attorney

is reasonably likely to render effective assistance and does not do

so, not on whether counsel has an extensive background in criminal

defense practice. Chandler, 218 F.3d at 1316. Because prejudice

cannot be presumed merely from the relative inexperience of

counsel, Sinclair ‘must identify specific errors or omissions

allegedly committed by counsel[,] ... establish that those errors

or omissions were professionally unreasonable, and [establish] that

the identified errors or omissions resulted in actual harm to the

defense in the sense that there exists a reasonable probability

that the outcome of the proceeding would have been different had

the errors not occurred.” Waldrop v. Thigpen, 857 F. Supp. 872, 906

(N.D. Ala. 1994). As indicated above, Sinclair fails to specify

actions his counsel would have taken had they been more

Case 1:07-cv-00214-CG-B Document 16 Filed 03/15/10 Page 24 of 29
25

experienced. Moreover, the record is devoid of any evidence which

supports Sinclair’s vague assertions. Consequently, Sinclair has

not demonstrated that trial counsel’s performance was deficient and

that he suffered prejudice as a result of the deficient

performance; thus, his claim fails under Strickland. 

As noted previously, the appellate court affirmed the trial

court’s decision denying the claims presented in Sinclair’s direct

appeal and Rule 32 pleadings, including his challenges to trial

counsel’s performance. Upon a thorough review of the record and the

applicable law, it is clear that Sinclair is not entitled to relief

on the basis of any of these claims of attorney error because he

has failed to establish under the “contrary to” clause of §

2254(d)(1) that the Alabama state courts 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 courts,

though recognizing the correct governing principles from the

Supreme Court’s decisions, unreasonably applied those principles to

the facts in this case. To the contrary, the decisions of the

Alabama Court of Criminal Appeals regarding Petitioner’s

ineffective assistance of counsel claims is completely consistent

with Strickland. Thus, Sinclair has not established that he is

Case 1:07-cv-00214-CG-B Document 16 Filed 03/15/10 Page 25 of 29
12Additionally, because Sinclair’s vaguely pled petition was

liberally construed, any other claim not specifically addressed

herein is found to be without merit under the legal principles

set forth above. 

26

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

In addition, Sinclair 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). Sinclair has not rebutted that presumption of

correctness by clear and convincing evidence. Accordingly,

Sinclair’s request for habeas relief on the basis of his claims of

ineffective assistance of counsel is due to be denied.12

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. “A [COA] may issue ... only if the applicant has

made a substantial showing of the denial of a constitutional

right.” Id. at § 2253(c)(2). To make such a showing, petitioner

“must demonstrate that reasonable jurists would find the district

Case 1:07-cv-00214-CG-B Document 16 Filed 03/15/10 Page 26 of 29
27

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, 335-36, 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 the record in this case, the

undersigned opines that Sinclair 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 Sinclair’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 15th day of March, 2010.

 /s/ SONJA F. BIVINS 

UNITED STATES MAGISTRATE JUDGE

Case 1:07-cv-00214-CG-B Document 16 Filed 03/15/10 Page 27 of 29
13The 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

l. Objection. Any party who objects to this recommendation, or

anything in it, must, within fourteen days of the date of service

of this document, file specific written objections with the Clerk

of this 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); Nettles v. Wainwright, 677 F.2d 404 (5th Cir.

Unit B, 1982)(en banc). 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 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 days13 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

Case 1:07-cv-00214-CG-B Document 16 Filed 03/15/10 Page 28 of 29
(14) days of being served with a copy of the statement of

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

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-00214-CG-B Document 16 Filed 03/15/10 Page 29 of 29