IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

WILLIAM HERBERT VILLAR :

AIS # 245066 :

 :

Petitioner, :

:

v. : CIVIL ACTION NO. 08-00082-CG-B

:

GRANTT CULLIVER, :

:

Respondent. :

REPORT AND RECOMMENDATION

William Herbert Villar, 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 2005 convictions in the Circuit Court of Mobile

County, Alabama, for second degree rape, second degree sodomy,

enticing a minor to enter a vehicle, intimidating a witness, and

criminal solicitation to commit murder, for which he was sentenced

to concurrent terms of ten years each, with the exception of his

conviction for solicitation to commit murder, for which he was

given a life sentence to be served concurrently with the other

sentences. (Doc. 1 at 2; Doc. 25 at 2; Doc. 25, Att. 3 at 160-61,

165-66).

This matter is now before the undersigned Magistrate Judge on

Petitioner’s petition and supplements thereto, Respondent’s answer

and amendment thereto, briefs, responses, and exhibits filed by the

parties, the state court records, various state court briefs filed

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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. Secretary 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

by the parties, and opinions and orders of the state trial and

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 U.S.C. § 2254(e)(2).

Case 1:08-cv-00082-CG-B Document 37 Filed 04/22/10 Page 2 of 28
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

FINDINGS OF FACT

The Alabama Court of Criminal Appeals found the facts of

this case to be as follows:2

The appellant, William Herbert Villar, was

convicted of one count of second-degree rape,

a violation of § 13A-6-62, Ala. Code 1975; one

count of second-degree sodomy, a violation of

§ 13A-6-63, Ala. Code 1975; one count of

enticing a child to enter a motor vehicle for

immoral purposes, a violation of § 13A-6-69,

Ala. Code 1975; one count of intimidating a

witness, a violation of § 13A-10-123, Ala.

Code 1975; and one count of solicitation to

commit murder, a violation of § 13A-4-1, Ala.

Code 1975. He was sentenced to life

imprisonment for his solicitation to commit

murder conviction and to a term of 10 years’

imprisonment for each of his second-degree

rape and second-degree sodomy convictions; the

sentences were ordered to run concurrently.

Additionally, Villar was sentenced to a term

of 10 years’ imprisonment for his intimidating

a witness conviction and to a term of 10

years’ imprisonment for his enticing a child

to enter a vehicle for immoral purposes; these

sentences were ordered to run concurrently

with Villar’s earlier sentences. Villar was

ordered to pay a $50 crime victims

compensation fund assessment and $250 in

attorneys fees. 

The evidence established that in the fall of

2003, 12-year-old J.N.H. began communicating

with the appellant, William Herbert Villar,

over the internet. They communicated on a

regular basis. On one occasion, Villar picked

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J.N.H. up from her house in his red Pontiac

Trans-Am; the passenger seat of the car was

lowered “all the way back.” J.N.H. testified

that, as Villar drove her to an unidentified

location, he threatened to burn her house and

harm her family if she did not cooperate with

his wishes. Villar suggested that he wanted

to have intercourse with J.N.H.; however, she

told him “no.” Ignoring her response, Villar

pulled her pants off and put his penis into

her vagina. Before driving her back to her

home, Villar told J.N.H. not to tell anyone

what had happened that night. As instructed,

J.N.H. told no one what had happened. 

Over the next few months, J.N.H. maintained

contact with Villar. She talked to Villar on

the telephone. Additionally, Villar would

come to her house and pick her up in his car,

with J.N.H. sneaking out via a hole in the

back fence that Villar had created. On

occasion, Villar would take J.N.H. to his

house where, according to J.N.H., after

threatening to kill her family and friends, he

would make her perform fellatio. 

In April 2004, Villar called J.N.H.’s mother,

pretending to be someone else. He accused

J.N.H. and her cousin of picking up his son to

do drugs “across the Bay.” Because J.N.H.’s

mother knew that her daughter had been in that

vicinity, and because of the details outlined

by the caller, she believed the caller’s

accusation to be credible. As a result of the

telephone call, J.N.H. was disciplined by her

grandmother, who had custody of her. J.N.H.’s

grandmother later called J.N.H.’s mother at

work to tell her that J.N.H. was missing.

Based on the telephone call she had received

from the strange man earlier and J.N.H.’s

disappearance, J.N.H.’s mother took her

daughter’s school picture to a local photocopy

establishment and printed missing person

flyers to distribute around the neighborhood.

J.N.H.’s mother also called the police and

reported that her daughter had disappeared.

During the course of their investigation,

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Lieutenant Victor Vaughn and Detective Troy

Faulk of the Mobile Police Department visited

Villar at his residence. Lieutenant Vaughn

showed Villar a copy of the missing person

flyer and asked Villar if he knew the girl.

Villar stated that he did not know the girl.

Before the officers left, however, Villar

stated that he might have seen her near an

intersection on University Avenue. He told

the officers that he would contact police if

he saw her again. The officers left their

business cards and several telephone numbers

where Villar could contact them if he heard

from J.N.H. 

The next day, Villar called the officers and

told them that he was traveling throughout

southeast Alabama “trying to get his head

together” without further detail as to why he

needed to do so. After several similar

conversations during which Villar was driving

around in Louisiana, Mississippi, and Alabama,

Lieutenant Vaughn asked Villar if he was ready

to come back to Mobile so that they could

talk. Villar indicated that he was not yet

ready to do that.

According to J.N.H., she was with Villar

during this period of time. He had picked her

up at the Home Builders Association located

behind her house. Because her grandmother was

mad at her, J.N.H. gathered clothing and

compact discs from her room, placed them in a

bag, and met Villar at the hole in the back

fence. Villar took J.N.H. to his house and

they had sexual intercourse and oral sex.

While J.N.H. was at his house, Villar cut

J.N.H.’s hair and dyed it auburn. When

Villar’s employer called informing him that

the police were looking for him, Villar

ordered J.N.H. to pack her belongings and

drove her in a blue truck to a travel trailer

near Dauphin Island. He left her there with a

cooler containing food and drinks, and told

her not to leave the trailer. J.N.H. did as

she was instructed. Also, as instructed, she

destroyed her purse.

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Two days later, Villar returned to the

trailer. J.N.H. gathered up her belongings

and the two set out for Louisiana in a

Chevrolet Astro van. Villar told J.N.H. that

they were going to New Orleans, but they ended

up stopping at a Motel 6 in Slidell.

Investigating officers eventually learned of

Villar’s location from Villar’s son, who had

called them, indicating he feared that his

father was going to commit suicide. Mobile

police officers traveled to the Motel 6 in

Slidell, where they were assisted by officers

from the Slidell Police Department and SWAT

team. When the Slidell police forced their

way into the hotel room, they saw Villar lying

on one of the hotel beds with his hands spread

out. J.N.H. was sitting on the bed closet to

the door screaming and crying. Officers

removed J.N.H. from the room and called

paramedics to render medical assistance to

Villar. Villar repeatedly told the officer

that it was his intention to bring the girl

back to Mobile. Slidell police officers

arrested Villar and charged him with the

offense of contributing to the delinquency of

a minor. He was later taken into custody by

the Mobile Police Department. J.N.H.

submitted to a medical examination. Dr. John

Shriner testified that he found a tear in her

hymen consistent with a penetrating object

entering her vagina. Because J.N.H. and

Villar had not engaged in intercourse for a

number of days, no semen collection was

attempted. 

While at the Mobile Metro Jail, Villar spoke

with his son, Michael Villar, and his son’s

friend, Michael “Red” Phillips, by telephone

on numerous occasions. Many of these

telephone conversations were audiotaped and

they were admitted as evidence at trial.

According to Michael and Phillips, Villar

requested that they call J.N.H.’s family and

“work out a deal to keep them from

testifying.” Phillips telephoned J.N.H.’s

residence and spoke with J.N.H.’s mother.

Phillips told her that he had over 200 nude

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photographs of J.N.H., and he threatened to

embarrass J.N.H. and her family by showing the

photographs if the charges were not dropped.

Undaunted, J.N.H.’s mother told Phillips to

“come on over” with the photographs. Phillips

testified that at that point he did not feel

right about making the call and hung up.

On another occasion, according to the young

men, Villar asked his son and Phillips to pour

gasoline around the house and set it on fire

with all of the family members inside.

Michael Villar and Phillips were shocked that

Villar’s requests had become more hostile and

agreed that they would not comply with this

request. However, they told Villar that they

would do it because he had threatened to

commit suicide if he could not get out of

jail. 

In the telephone conversations that [were]

audiotaped, Villar never specifically referred

to burning J.N.H.’s house down; rather, he

used such phrases as “going to another level,”

“other stage,” and “extremities.” Michael

Villar interpreted those phrases to mean

burning down J.N.H.’s house. 

While Villar was in the Mobile Metro Jail,

Lieutenant Nina Gordon discovered some digging

around the concrete blocks in an exterior wall

of Villar’s cell, as well as a hand-fashioned

shiv made from the metal component of a

squeeze mop, leading her to conclude that

Villar had attempted to escape. 

(Doc. 7, Att. 1at 1-5) (footnote omitted). 

In addition to the foregoing statement of facts, the record

reflects that, at the time that Petitioner began communicating with

twelve-year-old J.N.H., he was fifty-two years old. (Doc. 25, Att.

3 at 49-50). During their internet communication in the fall of

2003, J.N.H. told Petitioner where she went to church, and

Case 1:08-cv-00082-CG-B Document 37 Filed 04/22/10 Page 7 of 28
3 Petitioner was also tried on one count of second degree

escape, a violation of § 13A-10-32, Ala. Code 1975, and the jury

returned a verdict of not guilty on that count. (Doc. 25, Att. 3

at 143). 

8

Petitioner appeared there on more than one occasion and sat a

couple of pews in front of her, which frightened her. (Doc. 25,

Att. 2 at 30-31). Eventually, Petitioner convinced J.N.H. to sneak

out of her house and go riding with him in his “red Trans Am,”

whereupon he raped her. (Id. at 5-7). When the police arrested

Petitioner at a hotel in Louisiana with J.N.H. on April 20, 2004,

she had been missing for eleven days. (Doc. 25, Att. 1 at 5; Doc.

25, Att. 2 at 107-10; Doc. 25, att. 3 at 47). 

On November 28, 2005, Petitioner was tried in the Circuit

Court of Mobile County, Alabama, and convicted of second degree

rape, second degree sodomy, enticing a minor to enter a vehicle,

intimidating a witness, and criminal solicitation to commit

murder.3

 (Doc. 25, Att. 1 at 8; Doc. 25, Att. 3 at 142-43). On

January 24, 2006, Petitioner filed a motion for a new trial, which

the trial court denied. (Doc. 25, Att. 1 at 9). Petitioner then

filed a notice of appeal to the Alabama Court of Criminal Appeals,

which affirmed his convictions on August 11, 2006, in an

unpublished memorandum opinion. (Id. at 104; Doc. 7, Att. 1). On

September 1, 2006, the court overruled Petitioner’s application for

rehearing. (Doc. 7, Att. 2). Petitioner filed a petition for a

writ of certiorari with the Alabama Supreme Court, which the court

Case 1:08-cv-00082-CG-B Document 37 Filed 04/22/10 Page 8 of 28
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denied on February 9, 2007, issuing a certificate of judgment on

that date. (Doc. 7, Att. 3).

On May 22, 2007, Petitioner filed a petition for postconviction relief, pro se, pursuant to Rule 32 of the Alabama Rules

of Criminal Procedure. (Doc. 7, Att. 5 at 1). On January 7, 2008,

the court denied the petition, and Petitioner appealed the denial

to the Alabama Court of Criminal Appeals on February 5, 2008. (Id.

at 2). That appeal is still pending. 

On February 8, 2008, Petitioner filed the instant petition for

a writ of habeas corpus setting forth four claims in support of his

request for habeas relief. (Doc. 1). Petitioner subsequently

filed a motion to dismiss two of his habeas claims, which the Court

granted, leaving the following two claims: (1) there was

insufficient evidence to support Petitioner’s conviction for

solicitation to commit murder (“Claim 1”); and (2) Petitioner’s due

process rights were violated by the improper consolidation of six

charges at trial and by the improper admission of a missing persons

poster into evidence (“Claim 2”). (Doc. 1 at 7-8; Doc. 8; Doc.

22). On March 25, 2008, Respondent filed an Answer to the petition

and, on February 12, 2009, Respondent filed an Amended Answer, to

which Petitioner filed various responses. (Docs. 7, 9, 10, 11, 12,

14, 16, 25, 27, 28). The Court will now consider each of

Petitioner’s claims in turn.

DISCUSSION

Case 1:08-cv-00082-CG-B Document 37 Filed 04/22/10 Page 9 of 28
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Respondent asserts in his Amended Answer that Petitioner has

failed to properly exhaust Claim 2 in the state courts and that the

state courts, in any event, denied relief on Claims 1 and 2 on the

merits. (Doc. 25 at 10-12). For the reasons set forth below, the

Court finds that Petitioner is not entitled to habeas relief on the

basis of either Claim 1 or Claim 2.

 I. Claim 1. 

Petitioner argues first in his petition that he is entitled to

relief under § 2254 based on the insufficiency of the evidence to

support his conviction for solicitation to commit murder. (Doc. 1

at 7). Respondent asserts that this claim was raised in the state

courts and 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– 

(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

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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

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,

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).

Case 1:08-cv-00082-CG-B Document 37 Filed 04/22/10 Page 11 of 28
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Petitioner claims that the evidence in support of his

conviction for solicitation to commit murder was insufficient

because there was no corroboration of the solicitees’ testimony, as

required by Alabama law. Petitioner presented this same argument

to the Alabama Court of Criminal Appeals on direct appeal, and, in

its memorandum opinion affirming his conviction, the court stated:

Villar argues that the trial court erred when

it denied his motion for judgment of acquittal

because, he says, the State failed to present

sufficient evidence to support his conviction

for solicitation to commit murder.

Specifically, he argues that there was

insufficient evidence to corroborate the

testimony of his son Michael Villar and

Michael “Red” Phillips. 

Section 13A-4-1, Ala. Code 1975, provides:

“(a) A person is guilty of criminal

solicitation if, with the intent

that another person engage in

conduct constituting a crime, he

solicits, requests, commands or

importunes such other person to

engage in such conduct.

“A person may not be convicted of

criminal solicitation upon the

uncorroborated testimony of the

person allegedly solicited, and

there must be proof of circumstances

corroborating both the solicitation

and the defendant’s intent.”

We have held that, although corroboration of

the solicitation and the Defendant’s intent

are required, the corroborating evidence may

be circumstantial. Thornton v. State, 570 So.

2d 762, 769 (Ala. Crim. App. 1990). There was

sufficient corroboration presented in this

case. Michael Villar and Michael “Red”

Phillips testified that Villar asked them to

Case 1:08-cv-00082-CG-B Document 37 Filed 04/22/10 Page 12 of 28
13

burn down the house of the family of the

victim, J.N.H., while her family was inside.

The audiotapes of telephone communications

between the appellant and his accomplices

while at the Mobile Metro Jail corroborated

both Villar’s intent and the solicitation. 

As this Court explained in Kimbrough v.

State, 544 So. 2d 177 (Ala. Crim. App. 1989),

given the requisite intent, the crime is in

the communication to another to commit the

offense; no resulting action by the person

being solicited is necessary. The offense

is complete when the solicitation is made; it 

does not matter that the offense is never 

accomplished or that no overt act toward 

accomplishment of the solicited offense is

made. Accordingly, the State was not required

to corroborate the testimony of Michael Villar

and Michael “Red” Phillips with independent 

evidence that would prove the criminal 

solicitation beyond a reason doubt; rather, 

the State had the burden of presenting such 

other evidence that would connect Villar with 

to (sic) the criminal solicitation and tend to

 show that Villar was serious about his son and

Red carrying out the requested crime. See 

Thornton v. State, 570 So. 2d at 769.

Here Michael Villar and Red Phillips testified

that the appellant solicited them to commit

murder – specifically, he asked the young men

to burn J.N.H.’s family’s house down with the

family inside. Although these specific

“words” were not memorialized on the

audiotaped telephone call from jail, Villar

used a form of “code” to express his wishes.

Villar referenced “mail[ing] another letter,”

“go[ing] to that other stage,” “extremities,”

and “tak[ing] it to the next level.” He also

asked his son if “this is going to end on a

peaceful note” and at one point made a comment

referencing “kill or be killed.” In context,

the phrases clearly reference killing J.N.H.

and her family.

The jury was entitled to disbelieve Villar’s

futile attempts to explain that his

Case 1:08-cv-00082-CG-B Document 37 Filed 04/22/10 Page 13 of 28
14

conversation related to his pending court date

and his divorce from his wife. His comments

to his son and Phillips were an effort to plan

the murder of J.N.H. and her family. “The

weight and probative value to be given to the

evidence, the credibility of the witnesses,

the resolution of conflicting testimony, and

inferences to be drawn from the evidence are

for the jury.” Smith v. State, 698 So. 2d

189, 214 (Ala. Crim. App. 1996). We will not

invade the province of the jury and reweigh

the evidence. Thus, the evidence was

sufficient to corroborate Michael Villar and

Phillips’s testimony that Villar asked them to

burn down J.N.H.’s house with her family

inside. 

(Doc. 7, Att. 1 at 5-7).

On habeas review of the sufficiency of the evidence to support

a criminal conviction, the critical inquiry is “whether the

evidence could reasonably support a finding of guilt beyond a

reasonable doubt.” Wilson v. Hooks, 2009 WL 3003964, *10 (M.D.

Ala. 2009). 

[T]his inquiry does not require a court to

“ask itself whether it believes that the

evidence at the trial established guilt

beyond a reasonable doubt.” Woodby v. INS,

385 U.S., at 282, 87 S. Ct., at 486 (emphasis

added). Instead, the relevant question is

whether, after viewing the evidence in the

light most favorable to the prosecution, any

rational trier of fact could have found the

essential elements of the crime beyond a

reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 318-319 (1979).

Having thoroughly reviewed the record in this matter, the

Court is satisfied that a rational trier of fact could have found

the essential elements of the crime of solicitation to commit

Case 1:08-cv-00082-CG-B Document 37 Filed 04/22/10 Page 14 of 28
4

 At trial, Petitioner admitted that he used phrases such as

“let’s go to another level” and “kill or be killed” in telephone

conversations with his son and Michael Phillips. (Doc. 25, Att.

3 at 58-62). 

5 Petitioner’s son, Michael Villar, testified that the first

time that Petitioner told him that he wanted him to kill J.N.H.

and her family was when he was visiting with his father alone at

the jail. (Doc. 25, Att. 2 at 134-35). Michael Villar testified

that his father came up with the idea and that they “talked about

going over there and pouring gas around the house and setting it

on fire with everybody in it.” (Id.). He stated that, when the

conversation first occurred, he “couldn’t believe it.” (Id.). 

In an effort to keep his father calm, he told him that he would

“handle it.” (Id.). 

15

murder beyond a reasonable doubt. In addition to the evidence

cited by the Alabama Court of Criminal Appeals in its opinion, the

record shows that the twelve-year-old victim, J.N.H., testified

that, when the Petitioner raped her the first time in the fall of

2003, he told her that he would burn her house down with her family

in it if she “didn’t do what he said.” (Doc. 25, Att. 2 at 6-7).

Then, when he took her from her home in the spring of 2004 and kept

her for eleven days, she did not run away or seek help because he

told her that he would kill her and her family. (Id. at 32).

Finally, Petitioner called J.N.H. from jail and threatened to burn

her house down and kill her family if she did not drop the charges

against him. (Id. at 28). This evidence, along with the audiotape

evidence and Villar’s own testimony from the stand4

 fully

corroborates the solicitees’ testimony that Petitioner instructed

them to murder J.N.H. and her family, and he intended that J.N.H.

and her family be killed.5 

Case 1:08-cv-00082-CG-B Document 37 Filed 04/22/10 Page 15 of 28
16

Therefore, with respect to habeas claim 1, Petitioner 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 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, Petitioner 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. To the contrary, the

decision of the Alabama Court of Criminal Appeals regarding

Petitioner’s insufficiency of the evidence claim is completely

consistent with the principles outlined in Jackson, 443 U.S. 307,

324 (1979). Thus, Petitioner has not established that he is

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

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). Petitioner has not rebutted that presumption of

correctness by clear and convincing evidence. 

Case 1:08-cv-00082-CG-B Document 37 Filed 04/22/10 Page 16 of 28
6 The exhaustion doctrine requires that a petitioner “give

the state courts one full opportunity to resolve any

constitutional issues by invoking one complete round of the

State’s established appellate review process.” O’Sullivan v.

Boerckel, 526 U.S. 838, 845 (1999). In Alabama, the established

appellate review process includes an appeal to the Alabama Court

of Criminal Appeals, an application for rehearing to the Alabama

Court of Criminal Appeals, and an application for discretionary

review by the Alabama Supreme Court. See Ala. R. App. P. 4, 39,

40. A review of the record of Petitioner’s state court

proceedings shows that Petitioner did raise each of these issues

on direct appeal; however, he failed to raise them in his

application for rehearing or in his petition for a writ of

certiorari. (Doc. 7, Att. 1; Doc. 25, Att. 6; Doc. 25, Att. 7). 

Therefore, his due process claims were not fully exhausted and

are now procedurally defaulted.

17

Accordingly, Petitioner is not entitled to habeas relief on

the basis of claim 1, and that claim is, therefore, due to be

denied.

II. Claim 2. 

Petitioner next argues in his habeas petition that he is

entitled to relief under § 2254 because his due process rights were

violated by: (a) the improper consolidation of six charges at his

trial; and (b) by the improper admission of a “missing persons

poster” into evidence. While it appears that Petitioner failed to

fully exhaust these claims in the state courts,6 under 28 U.S.C. §

2254(b)(2), “[a]n application for a writ of habeas corpus may be

denied on the merits, notwithstanding the failure of the applicant

to exhaust the remedies available in the courts of the State.” See

also Thompson v. Secretary for Dep’t of Corrs., 517 F.3d 1279, 1283

(11th Cir. 2008) (“We may, however, deny Petitioner’s petition for

Case 1:08-cv-00082-CG-B Document 37 Filed 04/22/10 Page 17 of 28
18

habeas relief on the merits regardless of his failure to exhaust

the claim in state court.”) (citing 28 U.S.C. § 2254(b)(2)).

Having considered both of these claims de novo, the Court finds

them to be without merit. 

A. Improper Consolidation of Charges.

In his petition, Petitioner argues that he is entitled to

relief under § 2254 because his due process rights were violated by

the improper consolidation of all six charges at his trial, those

being, second degree rape, second degree sodomy, enticing a minor

to enter a vehicle, intimidating a witness, criminal solicitation

to commit murder, and second degree escape. (Doc. 1 at 20; Doc. 27

at 105). Petitioner presented this argument on direct appeal, and

the Alabama Court of Criminal Appeals affirmed his convictions,

stating: 

Next, Villar argues that the trial court erred

when it consolidated all six charges against

him for a single trial. 

Rule 13. 3, Ala. R. Crim. P., allows charges

to be consolidated for trial if they (1) are

of the same or similar character, or (2) are

based on the same conduct or otherwise

connected in their commission, or (3) are

alleged to have been part of a common plan or

scheme. Here, the State offered evidence that

the appellant committed numerous offenses

against the victim. The offenses were of

similar character because all of them were

sexual offenses or intimidation tactics to

prevent J.N.H. or her family from prosecuting

him for sexual offenses. 

“A trial court’s decision to consolidate is

entitled to deference on appeal and will not

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7

 The Eleventh Circuit has adopted as binding precedent all

decisions of the former Fifth Circuit rendered prior to October

1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th

Cir. 1981).

19

be overturned absent a showing of abuse of

discretion.” Gibbs v. State, 695 So. 2d 649,

652 (Ala. Crim. App. 1996). Our examination

of the evidence in this case convinces us that

the consolidation of these offenses was

correct. 

(Doc. 7, Att. 1 at 7). 

Having considered this issue, de novo, the Court is satisfied

that Petitioner has failed to show that he is entitled to habeas

relief on this basis. 

The propriety of a consolidation rests within

the sound discretion of the state trial judge.

The simultaneous trial of more than one

offense must actually render petitioner’s

state trial fundamentally unfair and hence,

violative of due process before relief

pursuant to 28 U.S.C. § 2254 would be

appropriate.

Tribbitt v. Wainwright, 540 F.2d 840, 841 (5th Cir. 1976).7

In McLeod v. Attorney General, Florida, 2009 WL 3242015, *7

(M.D. Fla. 2009), the court recently stated:

The issue of joinder of offenses is a state

law matter to be decided within the broad

discretion of the state trial court. The only

issue before this Court in a federal habeas

proceeding is not whether the trial court was

right or wrong, but whether the trial of

separate offenses together actually rendered

the state trial unfair such that it violated a

defendant’s federal constitutional rights of

due process. To prevail on this claim, a

petitioner must show more than the potential

for prejudice. He must show actual prejudice

Case 1:08-cv-00082-CG-B Document 37 Filed 04/22/10 Page 19 of 28
20

resulting from the events of the trial.

Tribbitt v. Wainwright, 540 F.2d 840 (5th Cir.

1976); see also Hernandez v. Conway, 485 F.

Supp. 2d 266 (W.D.N.Y. 2007).

McLeod v. Attorney General, Florida, 2009 WL 3242015, *7 (M.D.

Fla. 2009).

In the present action, the charges of second degree rape,

second degree sodomy, enticing a minor to enter a vehicle,

intimidating a witness, and criminal solicitation to commit murder

are obviously related to each other as they were committed by

Petitioner against the victim, J.N.H. Thus, there was no error in

their consolidation. 

Further, because Petitioner was planning the murders of J.N.H.

and her family while he was incarcerated at the Mobile Metro Jail,

his alleged escape attempt was arguably related to his plan to harm

J.N.H. and her family. In any event, if each of the six charges

had been tried separately, evidence of the alleged escape attempt

would have been admissible in the trial of the other charges as

evidence of consciousness of guilt, and evidence of the other

charges would have been admissible in the trial of the escape

charge as motive for the escape. See, e.g., Brown v. State, 821

So. 2d 219, 225 (Ala. Crim. App. 2000) (evidence of defendant’s

escape from custody was properly admitted as evidence of

consciousness of guilt); Barnes v. State, 571 So. 2d 372, 374 (Ala.

Crim. App. 1990) (Evidence of collateral criminal activity is

admissible if it relates to the defendant’s motive and intent to

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21

commit the crime presently charged.). Thus, there was no error in

the consolidation of all six charges at trial. 

Moreover, even assuming error, Petitioner has failed to show

that the consolidation of the six charges against him rendered his

trial fundamentally unfair and violative of due process. Thus, he

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

B. Improper Admission of “Missing Persons Poster”.

Next, Petitioner argues that he is entitled to relief under §

2254 because his due process rights were violated by the improper

admission of a ‘missing persons poster’ into evidence. (Doc. 1 at

9). Petitioner presented this argument on direct appeal, and the

Alabama Court of Criminal Appeals affirmed his convictions,

stating: 

Finally, Villar argues that the trial court

erred when it allowed the State to admit

evidence of a “missing person’s poster”

prepared by J.N.H.’s mother when it should

have been precluded pursuant to Rule 403, Ala.

R. Evid.

The record reveals that, J.N.H.’s mother

identified a flyer she had printed at Kinko’s

upon learning of her daughter’s disappearance.

The flyer contained a recent photograph of

J.N.H., and copies of it had been nailed to

utility poles in the neighborhood and had been

posted in local businesses, J.N.H.’s school,

and at the post office. The same flyer was

presented to Villar by Lieutenant Victor

Vaughn when he asked Villar if he knew the

missing girl. Although Villar initially

denied that he knew the girl, he later

admitted that he may have seen her before and

offered his cooperation to law enforcement

officers. Thus, because the poster was

Case 1:08-cv-00082-CG-B Document 37 Filed 04/22/10 Page 21 of 28
22

relevant to the investigation of J.N.H.’s

disappearance, and to Villar’s role in

J.N.H.’s disappearance, the poster was

properly admitted as probative evidence.

Villar has failed to show that the admission

of such probative evidence was outweighed by

any prejudicial effect on his defense. The

balancing test of Rule 403, Ala. R. Evid., is

within the trial judge’s discretion and will

not be reversed in the absence of an abuse of

discretion. See Sanders v. State, 512 So. 2d

809 (Ala. Crim. App. 1985).

(Doc. 7, Att. 1 at 7-8).

In reviewing an evidentiary determination of a state trial

court, the federal court will “not sit as a ‘super’ state supreme

court.” Shaw v. Boney, 695 F.2d 528, 530 (11th Cir. 1983)

(citations omitted). In Shaw, the Eleventh Circuit explained:

Unlike a state appellate court, we are not

free to grant the petitioner relief simply

because we believe the trial judge has erred.

The scope of our review is severely

restricted. Indeed, the general rule is that

a federal court will not review a trial

court’s actions with respect to the admission

of evidence. [Citations omitted]. A state

evidentiary violation in and of itself does

not support habeas corpus relief. [Citations

omitted]. Before such relief may be granted,

the violation must rise to the level of a

denial of “fundamental fairness.” [Citations

omitted]. 

In the context of state evidentiary rulings,

the established standard of fundamental

fairness is that habeas relief will be granted

only if the state trial error was “material in

the sense of a crucial, critical, highly

significant factor.” [Citations omitted].

Moreover, application of this standard has

been notably one-sided, consistent with the

reluctance of federal courts to second-guess

state evidentiary rulings. This court has

Case 1:08-cv-00082-CG-B Document 37 Filed 04/22/10 Page 22 of 28
23

established a well-documented resistance to

granting relief when a habeas petition alleges

a federal claim based merely on a state

evidentiary ruling. 

Id. Thus, this claim will be reviewed only to determine whether

the alleged error “render[ed] the entire trial fundamentally

unfair.” Carrizales v. Wainwright, 699 F.2d 1053, 1055 (11th Cir.

1983). 

Having considered this claim de novo, the Court finds that the

“missing persons poster” made by J.N.H.’s mother was admissible for

the precise reasons cited by the Alabama Court of Criminal Appeals.

As discussed above, the record shows that J.N.H.’s mother made the

poster the day that her twelve-year-old daughter went missing,

using a school photograph of the child. (Doc. 25, Att. 2 at 89).

In the days following J.N.H.’s disappearance, the police questioned

Petitioner at his home and showed him the poster. (Id. at 101-02).

Petitioner denied knowing J.N.H., although he was, in fact, hiding

her at a trailer near Dauphin Island at the time. (Id.; Doc. 25,

Att. 3 at 37, 54). Eleven days after she was reported missing by

her mother, J.N.H. was found in a hotel room in Louisiana with

Petitioner. (Doc. 25, Att. 3 at 47; Doc. 25, Att. 2 at 104-10).

Thus, as the Alabama Court of Criminal Appeals found, the poster

was relevant as part of the police investigation into J.N.H.’s

disappearance and Petitioner’s involvement with the missing child.

Moreover, even assuming, arguendo, that the poster should not

have been admitted, Petitioner has failed to show that any error in

Case 1:08-cv-00082-CG-B Document 37 Filed 04/22/10 Page 23 of 28
24

admitting the poster was “material in the sense of a crucial,

critical, highly significant factor” in the trial, and that it

“render[ed] the entire trial fundamentally unfair.” Shaw, 695 F.2d

at 530; Carrizales, 699 F.2d at 1055. Therefore, Petitioner is not

entitled to habeas relief on the basis of this claim.

CERTIFICATE OF APPEALABILITY

Pursuant to Rule 11(a) of the Rules Governing § 2254

Proceedings, the undersigned recommends that a certificate of

appealability in this case be denied. 28 U.S.C. foll. § 2255, Rule

11(a) (“The district court must issue or deny a certificate of

appealability when it enters a final order adverse to the

applicant.”). The habeas corpus statute makes clear that an

applicant is entitled to appeal a district court’s denial of his

habeas corpus petition only where a circuit justice or judge issues

a certificate of appealability. 28 U.S.C. § 2253(c)(1). A

certificate of appealability may issue only where “the applicant

has made a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2243(c)(2). Where a habeas petition is being

denied on the merits of an underlying constitutional claim, a

certificate of appealability should issue only when the petitioner

demonstrates “that reasonable jurists would find the district

court’s assessment of the constitutional claims debatable or

wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (“To obtain a

COA under § 2253(c), a habeas prisoner must make a substantial

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25

showing of the denial of a constitutional right, a demonstration

that, under Barefoot [v. Estelle, 463 U.S. 880, 893 (1983)],

includes showing that reasonable jurists could debate whether (or,

for that matter, agree that) the petition should have been resolved

in a different manner or that the issues presented were ‘adequate

to deserve encouragement to proceed further.’”); accord Miller-El

v. Cockrell, 537 U.S. 322, 336 (2003).

None of Petitioner’s claims warrant the issuance of a

Certificate of Appealability. The recommendation that the claims

be denied is based on the straightforward application of clear

Circuit precedent, and no reasonable jurist could differ on the

appropriate disposition of Petitioner’s claims on the record

presented. It is thus recommended that the Court deny any request

for 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. Further, the

undersigned Magistrate Judge is of the opinion that Petitioner is

not entitled to issuance of 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.

Case 1:08-cv-00082-CG-B Document 37 Filed 04/22/10 Page 25 of 28
26

DONE this 21st day of April, 2010.

 /s/SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE 

 

Case 1:08-cv-00082-CG-B Document 37 Filed 04/22/10 Page 26 of 28
8 Effective December 1, 2009, the time for filing written

objections was extended to “14 days after being served with a

copy of the recommended disposition[.]” Fed. R. Civ. P.

72(b)(2).

27

 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 (14) 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 days8 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.

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28

2. 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

case 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 1:08-cv-00082-CG-B Document 37 Filed 04/22/10 Page 28 of 28