IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

EDWARD D. KLEINE :

 :

Petitioner, :

:

v. : CIVIL ACTION NO. 08-00531-WS-B

:

TROY KING, et al., :

:

Respondents. :

REPORT AND RECOMMENDATION

Edward Kleine, a state prisoner currently in the custody of

Respondents, has petitioned this Court for federal habeas corpus

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

validity of his 2006 convictions by a jury in the Circuit Court of

Baldwin County, Alabama, for manslaughter and leaving the scene of

an accident with injury or death, for which he was sentenced to

consecutive terms of twenty years for the manslaughter conviction

and ten years for leaving the scene of an accident. (Doc. 1 at 3;

Doc. 14, att. 1 at 7-12). 

This matter is now before the undersigned Magistrate Judge on

Petitioner’s petition, Respondents’ answer, briefs, and exhibits

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

briefs filed 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

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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

hearing is not warranted on the issues.1 See 28 U.S.C. §

2254(e)(2).

FINDINGS OF FACT

The Alabama Court of Criminal Appeals found the facts of

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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

this case to be as follows:2

The appellant was convicted of

manslaughter, a violation of § 13A-6-3(a)(1),

Ala. Code 1975, and leaving the scene of an

accident involving death or personal injuries,

a violation of § 32-10-1, Ala. Code 1975. The

trial court sentenced him to serve consecutive

terms of twenty years in prison on the

manslaughter conviction and ten years in

prison on the leaving the scene of an accident

conviction. The appellant did not file any

post-trial motions. This appeal followed. 

The State presented evidence that, during

the late evening hours of May 17, 2005, the

victim and his roommate, Josh Deese, went to a

bar called Mud Bugs; that they left the bar

around 1:30 a.m. on May 18, 2005, and were

walking back home on the sidewalk along

Highway 59; that, as they were walking, Deese

heard a loud bang and then saw the victim

flying in front of his face; and that Deese

turned and saw a vehicle speeding away from

the scene. The State’s evidence indicated

that the victim died from his injuries. 

Doug Dupre testified that he worked with

the appellant; that, on the evening in

question, he, the appellant, and some other

co-workers met at the Pink Pony; that the

defendant got there between 7:15 p.m. and 7:30

p.m.; that the appellant was driving his Kia;

that the defendant drank about four or five

beers and a couple of Jagermeister shots while

he was there; that he and the appellant left

and went to Mud Bugs; that the appellant was

driving; that the appellant drank between ten

and twelve more beers; that they left around

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2:00 a.m.; that the appellant was driving;

that they were heading north; that he saw two

men walking on the curb; that he told the

appellant two or three times that there were

two guys walking; that the appellant’s vehicle

was veering to the right side where the men

were walking; that the speed limit in that

area was 35 miles per hour, and they were

probably going close to 50 miles per hour;

that he turned to look at the appellant, and

the appellant was just staring at him and

smiling; and that, the next thing he

remembered, they jumped the curb and hit the

victim. He also testified that, after they

hit the victim, the appellant was in shock;

that he told the appellant they hit somebody,

and the appellant just kept saying he had hit

something; that the appellant stopped his

vehicle a little further down the road; that

the appellant drove up on the curb to try to

park the vehicle; and that he and the

appellant got out of the vehicle and walked

away from the area. 

The State presented evidence that Officer

Bryan Fillingim of the Gulf Shores Police

Department saw two men in the parking lot at

Sawgrass Landing; that that area was about

one-tenth of a mile from the area where the

appellant had left his vehicle; that, when

Fillingim turned around and went back to the

area, the appellant was the only person he

saw; that, when Fillingim asked the appellant

for his identification, the appellant asked

him if he had hit anyone; that Fillingim asked

the appellant if the abandoned vehicle was

his, and he said it was; and that, around that

time, Officer James Nelson arrived at Sawgrass

Landing. It also presented evidence that the

appellant’s speech was slurred and that he had

a stagger in his step; that Fillingim talked

to Nelson about field sobriety tests; that, at

that time, the appellant became nervous, and

the officers thought he might run; that the

officers took the appellant to the ground,

handcuffed him, and patted him down for

weapons; that Fillingim arrested the appellant

for DUI and leaving the scene of an accident;

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that the officers put the appellant in

Nelson’s vehicle, and Fillingim read him his

Miranda rights; that the appellant was

transported to the police department; that,

while they were at the police department,

Nelson administered a Draeger breath test to

the appellant; and that the appellant’s blood

alcohol content was .17.

(Doc. 14, att. 12 at 1-3) (footnote omitted).

Petitioner was indicted by the Baldwin County Grand Jury on

October 4, 2005, on four charges arising from his operation of a

motor vehicle which resulted in the death of Clinton Kyle Thomas,

a pedestrian: manslaughter, criminally negligent homicide, leaving

the scene of an accident resulting in death or injury, and driving

under the influence of alcohol. (Doc. 1 at 3; Doc. 14, att. 1 at

16-18). On November 16, 2005, Petitioner entered a plea of not

guilty to the charges. (Doc. 14, att. 1 at 27). On August 21,

2006, the State dismissed the charges for criminally negligent

homicide and driving under the influence of alcohol, and

Petitioner’s jury trial on the remaining charges commenced. (Id.

at 5). 

On August 25, 2006, the jury found Petitioner guilty of

manslaughter and leaving the scene of an accident with death or

injury. (Id.). On September 27, 2006, the trial court sentenced

Petitioner to twenty years imprisonment on the manslaughter

conviction and ordered him to pay a $1,000 fine, $2,946.88 in

restitution, $5,000 to the Alabama Crime Victims Compensation Fund,

and court costs. (Id. at 7-12). The trial court further sentenced

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Petitioner to a consecutive term of ten years imprisonment on his

conviction for leaving the scene of an accident. (Id.).

Petitioner filed a written notice of appeal to the Alabama

Court of Criminal Appeals on November 3, 2006. (Id. at 141). On

June 22, 2007, the Alabama Court of Criminal Appeals affirmed

Petitioner’s conviction in an unpublished memorandum opinion.

(Doc. 14, att. 12). The Court of Criminal Appeals overruled

Petitioner’s application for rehearing on July 13, 2007. (Doc. 14,

att. 14). The Alabama Supreme Court denied Petitioner’s petition

for a writ of certiorari and issued its certificate of judgment on

September 14, 2007. (Doc. 14, att. 16). Petitioner did not file

a petition for a writ of certiorari in the United States Supreme

Court, nor did he file a petition for post-conviction relief

pursuant to Rule 32 of the Alabama Rules of Criminal Procedure.

(Doc. 1 at 4).

On September 17, 2008, Petitioner filed the instant petition

for a writ of habeas corpus, setting forth the following five

claims in support of his request for habeas relief: (1) the trial

court violated Alabama law and Petitioner’s right to due process by

allowing a patrol officer to testify to point of impact without

having qualifications to provide such expert testimony and without

providing any factual basis for his opinion; (2) the trial court

violated Alabama law and Petitioner’s right to due process by

admitting into evidence a diagram of the point of impact; (3) the

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State violated Petitioner’s due process, the trial court’s

discovery order, and Alabama Rule of Criminal Procedure 16.1 by not

disclosing its intent to call an expert witness on point of impact,

and the trial court violated Petitioner’s due process and Alabama

Rule of Criminal Procedure 16.5 by denying Petitioner’s request for

a continuance so that Petitioner could retain an expert to

determine the point of impact; (4) the trial court violated Alabama

law and Petitioner’s right to due process by allowing into evidence

the results of the breath alcohol analysis; and (5) the trial court

violated Petitioner’s right to due process through the cumulative

effect of errors committed at trial. (Doc. 1 at 5-27).

Respondents filed an Answer to the petition on January 20, 2009.

(Doc. 14). The Court will consider each of Petitioner’s claims in

turn.

DISCUSSION

In their Answer to Petitioner’s habeas petition, Respondents

do not dispute that Petitioner’s claims are timely and have been

properly exhausted in the state courts. Rather, Respondents argue

that the state courts found Petitioner’s claims to lack merit and

that Petitioner’s habeas petition is due to be denied. (Doc. 14 at

5).

The Court begins its analysis of Petitioner’s claims with the

principle that federal habeas relief for state prisoners attacking

their conviction is limited in scope:

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The Supreme Court, a Justice thereof, a

circuit judge, or a district court shall

entertain an application for a writ of habeas

corpus in behalf of a person in custody

pursuant to the judgment of a State court

only on the ground that he is in custody in

violation of the Constitution or laws or

treaties of the United States.

28 U.S.C. § 2254(a) (emphasis added). “Federal courts hold no

supervisory authority over state judicial proceedings and may

intervene only to correct wrongs of a constitutional dimension.”

Smith v. Phillips, 455 U.S. 209, 221 (1982). Questions of state

law rarely have federal constitutional significance because “[a]

state’s interpretation of its own laws or rules provides no basis

for federal habeas corpus relief, since no question of a

constitutional nature is involved.” Carrizales v. Wainwright, 699

F.2d 1053, 1055 (11th Cir. 1983). Such questions are reviewed in

federal habeas proceedings only to determine whether the alleged

errors rendered “the entire trial fundamentally unfair.” Id. 

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 and quotation marks 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

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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 established a

well-documented resistance to granting relief

when a habeas petition alleges a federal

claim based merely on a state evidentiary

ruling. 

Id. For the reasons explained below, the Court finds that

Petitioner is not entitled to habeas relief on the basis of any of

his claims.

I. Claims 1, 2, and 3.

In his habeas petition, Petitioner asserts in Claims 1 and 2

that the trial court erred in applying Alabama rules of evidence

with respect to the admission of testimony and a diagram drawn by

a police officer, Joseph Diorio, regarding the point of impact of

Petitioner’s vehicle with the decedent, Kyle Thomas. (Doc. 1 at 5-

20). Petitioner further asserts in Claim 3 that the State violated

the trial court’s discovery order and Rule 16.1 of the Alabama

Rules of Criminal Procedure by not disclosing its intent to call

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Officer Diorio as an expert witness on point of impact and that the

trial court violated Rule 16.5 of the Alabama Rules of Criminal

Procedure by not granting Petitioner a continuance so that he could

retain an expert on point of impact. (Doc. 1 at 20-25). 

Petitioner raised Claims 1, 2, and 3 in the state court on

direct appeal, and the Alabama Court of Criminal Appeals affirmed

Petitioner’s convictions and denied relief on these claims,

stating:

I.

The appellant argues that the trial

court erroneously allowed Officer Joseph

Diorio of the Gulf Shores Police Department

to testify as an expert regarding the point

of impact. Specifically, he contends that

the State did not qualify Diorio as an expert

pursuant to Rule 702, Ala. R. Evid., and that

the State did not establish a reliable,

factual basis for his opinion as required by

Rule 703, Ala. R. Evid. On direct

examination, Diorio testified that, after he

arrived at the scene, he talked to Deese

about what had happened, walked off the

scene, made his conclusion, and drew a

diagram of the scene; that the diagram was

not drawn to scale, but did include

distances; and that, when making the diagram,

he evaluated the debris field of the victim’s

belongings and his discussion with Deese. He

also testified that he saw a dark scuff mark

on the curb that appeared to be fresh and

that the scuff mark was an important factor

in determining the crime scene diagram. When

describing the diagram, Diorio stated: 

“This is an accident diagram. This

is Windmill Ridge Road. This is

Gulf Shores, Highway 59. This

would actually be where the bridge

is and this is the water that

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crosses under the bridge. This is

a parking area. There was debris

scattered about, the shoes, the

battery, the light cover from the

car. Here. The scuff marks were

about here. This is actually where

the point of impact was with Mr.

Thomas and this is where he came to

rest.” 

(R. 395). On cross-examination, Diorio

testified that he did not use any

mathematical formulations or principles of

physics or engineering to determine the point

of impact. He also testified that his

diagram did not show a specific point of

impact and admitted that it only showed a

generalized point of impact. 

“If the witness is not testifying

as an expert, the witness’s

testimony in the form of opinions

or inferences is limited to those

opinions or inferences which are

(a) rationally based on the

perception of the witness and (b)

helpful to a clear understanding of

the witness’s testimony or the

determination of a fact in issue.” 

Rule 701, Ala. R. Evid. 

In this case, Diorio’s opinion regarding

the point of impact was not based on

scientific tests or specialized training. 

Instead, his opinion was based on his

investigation and his observations at the

scene. Therefore, Diorio’s testimony did not

constitute expert testimony, but was lay

testimony pursuant to Rule 701, Ala. R. Evid. 

See Gavin v. State, 891 So. 2d 907, 970 (Ala.

Crim. App. 2003) (holding that a law

enforcement officer’s testimony regarding

blood spatters was admissible because it “was

rationally based on his perception . . . as

well as his knowledge of the circumstances

surrounding the shooting”). Also, Diorio’s

testimony was helpful to a clear

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understanding of Deese’s and Dupre’s

testimony as well as the officers’ testimony

regarding their observations at the scene. 

Because Diorio did not testify as an expert

witness, the State was not required to

establish a factual basis for his opinion

pursuant to Rule 703, Ala. R. Evid. 

Accordingly, the trial court did not err when

it admitted Diorio’s testimony regarding the

point of impact. 

Moreover, Deese and Dupre testified that

the victim was on the sidewalk at the time

the appellant hit him. “[Evidence] that may

be inadmissible may be rendered harmless by

prior or subsequent lawful testimony to the

same effect or from which the same facts can

be inferred.” White v. State, 650 So. 2d

538, 541 (Ala. Crim. App. 1994), overruled on

other grounds, Ex parte Rivers, 669 So. 2d

239 (Ala. Crim. App. 1995). Because Diorio’s

testimony regarding the point of impact was

cumulative to Deese and Dupre’s testimony,

error, if any, in the admission of that

testimony was harmless. See Rule 45, Ala. R.

App. P.

II.

The appellant also argues that the trial

court erroneously admitted the accident

diagram into evidence because it was part of

an accident report. However, the State did

not introduce the accident report itself into

evidence. Rather, it only introduced the

diagram that was attached to the report. In

Spurgeon v. State, 560 So. 2d 1116 (Ala.

Crim. App. 1989), this court addressed the

admission of copies of diagrams that were

attached to an accident report. In that

case, we noted that “[t]he use of diagrams

for the purpose of illustrating testimony is

within the sound discretion of the trial

judge.” Id. at 1123. In this case, the

accident report illustrated the testimony of

Diorio and the other witnesses who were at

the scene on the morning in question. 

Therefore, the trial court did not abuse its

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discretion when it allowed the State to

introduce the diagram into evidence. 

III.

The appellant further argues that the

State violated Rule 16.1, Ala. R. Crim. P.,

and the trial court’s discovery order when it

did not timely notify him that it intended to

elicit expert testimony from law enforcement

officers regarding the point of impact. 

Specifically, he contends that, because the

State did not notify him that it intended to

introduce expert testimony regarding the

point of impact, the trial court should not

have allowed the officers to testify

regarding the point of impact and should have

given him additional time to retain an expert

regarding the point of impact. The only

officer who provided any testimony regarding

the point of impact was Diorio. As we noted

in Part I of this memorandum, Diorio did not

testify as an expert witness. Further,

Diorio did not do any scientific testing in

this case. Therefore, the State did not

violate Rule 16. 1, Ala. R. Crim. P., or the

trial court’s discovery order when it did not

identify Diorio as an expert witness before

the trial started. Accordingly, the

appellant’s argument is without merit.

(Doc. 14, att. 12 at 3-6).

In order to obtain federal habeas relief on the basis of

Claims 1, 2, or 3, Petitioner must show that the Alabama state

courts erred in applying Alabama law, and that error rendered his

entire trial “fundamentally unfair.” Carrizales, 699 F.2d at 1055.

For the precise reasons found by the Alabama Court of Criminal

Appeals in its memorandum opinion, this Court agrees that

Petitioner has failed to show that the state trial court erred in

admitting the evidence offered by Officer Diorio on point of impact

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(Claims 1 and 2), and Petitioner has failed to show that the state

trial court erred in refusing to grant him a continuance to obtain

an expert on point of impact. (Claim 3). There being no error in

the trial court’s rulings, Petitioner was not deprived of

fundamental fairness at his trial. 

Moreover, even assuming error in the state courts’ application

of Alabama law, as argued by Petitioner in Claims 1, 2, and 3,

habeas review of those errors is “severely restricted.” Shaw, 695

F.2d at 530. Habeas relief is available only if the error

fundamentally affected the fairness of the trial, that is, the

error must have been “material in the sense of a crucial, critical,

highly significant factor.” Id. This Petitioner has failed to

show. 

In each of these three claims, Petitioner rests his argument

on the proposition that the decedent, Kyle Thomas, was walking on

the side of the street at the time of the impact, not on the

sidewalk, as Officer Diorio testified. (Doc. 1 at 5-25).

According to Petitioner, the erroneous admission of Officer

Diorio’s point of impact evidence violated his right to due process

because it boosted the credibility of Deese and Dupree, who

testified that the point of impact was on the sidewalk. (Id. at

15). However, Petitioner’s argument is misplaced. 

First, even if Officer Diorio’s evidence on point of impact

had been excluded, the overwhelming evidence presented at trial

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indicated that the point of impact between Petitioner’s vehicle and

the decedent occurred on the sidewalk: Doug Dupre, the passenger in

Petitioner’s vehicle, testified that the impact occurred on the

sidewalk; Josh Deese, the decedent’s friend who was walking beside

the decedent at the time that he was struck, testified that the

impact occurred on the sidewalk; and another police investigator,

Skip Callaway, testified that he located a fresh tire mark on the

curb “up onto the sidewalk” in the area where Josh Deese testified

that the decedent was hit. (Doc. 14, att. 2 at 169-70, 172-73,

178, 190; Doc. 14, att. 3 at 32, 73, 112, 137-40, 155; Doc. 14,

att. 4 at 65-66). To contradict this evidence, Petitioner relies

on evidence of a 911 call in which Deese stated to the 911

operator, “[m]y friend got hit on the side of the road;” “[w]e was

just walking down the road and it hit from the back....;” and “[i]t

knocked him off the side of the road over the bridge” (Doc. 14,

att. 2 at 182, 184, 186); as well as Dupre’s statement given to the

police forty-five minutes after the accident in which he stated

that he saw “two guys walking on the side of the street on a bridge

or over a canal or something,” and he told Petitioner to “[l]ook

out for the two guys walking on the side of the road.” (Doc. 14,

att. 3 at 72, 83). However, these statements referring to the

“side of the street” or road could be interpreted as simply less

precise than, but not inconsistent with, the witnesses’ subsequent

testimony that the decedent was walking on the sidewalk at the time

Case 1:08-cv-00531-WS-B Document 15 Filed 04/21/10 Page 15 of 26
3 There is no evidence to support Petitioner’s statement in

his petition that the decedent was walking “in the road” at the

time of impact. (Doc. 1 at 5). 

16

of the impact. In fact, Dupre explained that, when he said “on the

side of the road,” he meant “[o]ff to the side,” “[u]p on that curb

by that railing.”3 (Doc. 14, att. 3 at 112). 

Second, Petitioner cites Snowden v. Singletary, 135 F.3d 732,

739 (11th Cir. 1998), to support his argument that Officer Diorio’s

expert testimony on point of impact rendered his trial

fundamentally unfair because it improperly boosted the credibility

of the two main witnesses, Deese and Dupre. However, Petitioner

misreads Snowden. In that case, the Eleventh Circuit held that the

petitioner was entitled to habeas relief where the State’s expert

witness testified on the issue of the credibility of child

witnesses who allegedly had been sexually abused by the petitioner.

The Eleventh Circuit held that the expert testimony, which

“forcefully” vouched for the children’s credibility, improperly

invaded the province of the jury, and, in that case, the error was

material in the sense of a “crucial, critical, highly significant

factor” because there was, otherwise, “very little evidence” of

guilt in the case. Id. at 738-39. That is not the case here.

In this case, Officer Diorio did not testify to the

credibility of any witness. Moreover, Deese and Dupre were

independent eye witnesses to the same incident who both testified

that the point of impact between Petitioner’s vehicle and the

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decedent occurred on the sidewalk. (Doc. 14, att. 2 at 169-70,

172-73, 178, 190; Doc. 14, att. 3 at 32, 73, 112). Their testimony

was corroborated by physical evidence of a fresh tire mark on the

curb in the area where Deese testified that the decedent was hit.

(Doc. 14, att. 3 at 137, 139-40, 155; Doc. 14, att. 4 at 65-66).

Thus, the Snowden case is inapposite to the present one, and

Officer Diorio’s testimony that the point of impact was on the

sidewalk did not render Petitioner’s trial fundamentally unfair by

improperly “boost[ing] the credibility” of the two main witnesses

at the trial. Id., 135 F.3d at 739.

Third, Officer Diorio’s point of impact evidence did not

render Petitioner’s trial fundamentally unfair because, even

assuming, as Petitioner argues, that the impact occurred on the

side of the road, not on the sidewalk, there still was sufficient

evidence to convict Petitioner of manslaughter. Alabama Code,

1975, § 13A-6-3(a) (1), provides that a person commits the crime of

manslaughter if he “recklessly causes the death of another person.”

A person acts recklessly with respect to a

result or to a circumstance described by a

statute defining an offense when he is aware

of and consciously disregards a substantial

and unjustifiable risk that the result will

occur or that the circumstance exists. The

risk must be of such nature and degree that

disregard thereof constitutes a gross

deviation from the standard of conduct that a

reasonable person would observe in the

situation. A person who creates a risk but is

unaware thereof solely by reason of voluntary

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intoxication, as defined in subdivision

(e)(2) of Section 13A-3-2, acts recklessly

with respect thereto. 

Ala. Code, 1975, § 13A-2-2(3).

As recounted by the Alabama Court of Criminal Appeals in its

memorandum opinion, the evidence showed that Petitioner had a blood

alcohol content of .17 at the time of the accident. (Doc. 14, att.

4 at 32-33). Prior to the accident, Petitioner had consumed

approximately fourteen beers and four shots of Jagermeister at two

different bars. (Doc. 14, att. 3 at 26, 29). Petitioner drove his

vehicle from the first bar to the second bar. (Id. at 28).

Petitioner also drove his vehicle after leaving the second bar.

(Id. at 31). Upon leaving the second bar, Petitioner began driving

in excess of the speed limit and his vehicle began to veer to the

right. (Id. at 33-34). His passenger, Doug Dupre, warned him

“that there were two guys walking.” (Id.). However, Petitioner

was looking at Dupre, not the road, and his vehicle collided with

the decedent, Kyle Thomas. (Id. at 34-35). Under these

circumstances, whether the point of impact was on the side of the

road or on the sidewalk, there was sufficient evidence to find that

Petitioner was reckless in causing the death of Kyle Thomas and,

thus, to convict Petitioner of manslaughter. Therefore, any

alleged error with respect to the admission of evidence through

Officer Diorio that the point of impact was on the sidewalk was not

“material in the sense of a crucial, critical, highly significant

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19

factor,” and, thus, did not deprive Petitioner of fundamental

fairness at his trial. Shaw, 695 F.2d at 530. 

For each of these reasons, Petitioner’s Claims 1, 2, and 3

fail to state cognizable federal habeas claims and are due to be

denied. 

II. Claim 4. 

Petitioner next argues in his petition that he is entitled to

relief under § 2254 because the state trial court violated Alabama

law and Petitioner’s right to due process by allowing into evidence

the results of the breath alcohol analysis or “Draeger test.”

(Doc. 1 at 25). Petitioner raised Claim 4 in the state court on

direct appeal, and the Alabama Court of Criminal Appeals affirmed

Petitioner’s convictions and denied relief on this claim, stating:

IV.

Additionally, the appellant argues that

the trial court erroneously denied his motion

to suppress the results of the Draeger test

because the State did not comply with the

implied consent law set forth in § 32-5-192,

Ala. Code 1975. Specifically, he contends

that the trial court should have excluded the

results of the Draeger test because he had not

been arrested at the time Nelson administered

the test. 

“Under Alabama’s Chemical Test for

Intoxication Act (Implied Consent

Law) Ala. Code 1975, § 32-5-191, et

seq., a motorist must have been

‘lawfully arrested’ before any

chemical test to determine

intoxication is conducted in order

to authorize the admission into

evidence of the test results. Ex

Case 1:08-cv-00531-WS-B Document 15 Filed 04/21/10 Page 19 of 26
20

parte Love, 513 So. 2d 24 (Ala.

1987), on remand, 513 So. 2d 31

(Ala. Cr. App. 1987).”

Hays v. City of Jacksonville, 518 So. 2d 892,

893 (Ala. Crim. App. 1987). 

In support of his contention, the

appellant relies on the fact that Sergeant

Skip Callaway of the Orange Beach Police

Department testified at the preliminary

hearing that he did not have any knowledge

that the appellant had been arrested before

the Draeger test was administered and the fact

that his report indicated that Fillingim had

told him that the appellant was in his patrol

vehicle, that he transported the appellant to

the police department, and that the appellant

was directed to take a chemical test.

However, both Fillingim and Nelson testified

that the appellant had already been arrested

at the time Nelson administered the Draeger

test. Also, during the suppression hearing,

Callaway testified that, based on the records,

the appellant had been arrested when the

Draeger test was administered. Further,

during the trial, Callaway testified that he

did not have any knowledge regarding whether

the appellant was arrested before the Draeger

test was administered because he was not

present when the appellant was arrested or

when the test was administered. Finally, he

testified that he had been confused as to

which officer transported the appellant to the

police department. Because the State

presented evidence from which the trial court

could have reasonably concluded that the

appellant had been arrested at the time Nelson

administered the Draeger test, it properly

denied the appellant’s motion to suppress the

results of the Draeger test. 

(Doc. 14, att. 12 at 6-7). 

As with Claims 1 through 3, this Court’s review of habeas

Claim 4, which asserts a state trial court error with respect to

Case 1:08-cv-00531-WS-B Document 15 Filed 04/21/10 Page 20 of 26
21

the admission of evidence, is limited to whether the error rendered

Petitioner’s entire trial “fundamentally unfair.” Carrizales, 699

F.2d at 1055. Having reviewed the entire record in this case, the

Court agrees with the Alabama Court of Criminal Appeals, for the

precise reasons stated in its memorandum opinion, that Petitioner

has failed to show that the results of the breath alcohol analysis

were inadmissible. The evidence fully supports the trial court’s

ruling that Petitioner was arrested prior to taking the Draeger

breath alcohol test. (Doc. 14, att. 7 at 33, 37-38, 53, 58, 62-63,

67-68, 73, 102; Doc. 14, att. 4 at 22, 30, 54-55, 136; Doc. 14,

att. 3 at 195). There being no error in the trial court’s ruling,

Petitioner was not deprived of fundamental fairness at his trial,

and, thus, habeas Claim 4 is due to be denied. 

III. Claim 5. 

Last, Petitioner argues in his petition that he is entitled to

relief under § 2254 because the cumulative effect of the state

trial court’s errors violated his right to due process. (Doc. 1 at

27). Petitioner raised Claim 5 in the state court on direct

appeal, and the Alabama Court of Criminal Appeals affirmed

Petitioner’s convictions and denied relief on this claim, stating:

V.

Finally, the appellant argues that the

cumulative effect of all of the abovereferenced allegations of error affected his

substantial rights. We have considered each

of the allegations of error individually, and

we have not found that any of those

Case 1:08-cv-00531-WS-B Document 15 Filed 04/21/10 Page 21 of 26
22

allegations of error require reversal. We

have also considered the allegations of error

cumulatively, and we do not find that “the

accumulated errors have ‘probably injuriously

affected [the appellant’s] substantial

rights.’” Ex parte Woods, 789 So. 2d 941, 942-

43 n.1 (Ala. 2001) (quoting Rule 45, Ala. R.

App. P.). Therefore, the appellant’s argument

is without merit.

For the above-stated reasons, we affirm

the trial court’s judgment. 

(Doc. 14, att. 12 at 7). 

Again, having reviewed the entire record in this case, the

Court agrees with the Alabama Court of Criminal Appeals that

Petitioner has failed to show that any of the claimed errors denied

him a fair trial. Moreover, even considering the cumulative effect

of these alleged errors, “reversal is only warranted if the entire

trial is so replete with errors that the defendant was denied a

fair trial.” U.S. v. Adams, 280 Fed. Appx. 940, 944 (11th Cir.

2008) (citing United States v. Eckhardt, 466 F.3d 938, 947 (11th

Cir. 2006)). Petitioner’s trial was not so replete with errors

that he was denied a fair trial. Thus, Petitioner’s habeas Claim

5 is due to be denied. 

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

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23

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

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

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24

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

The events which underlie this habeas are tragic for all

concerned, including the Petitioner. However, the undersigned

Magistrate Judge has extensively reviewed Petitioner’s claims and

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 instructions which follow the undersigned’s signature

contain important information regarding objections to the report

and recommendation of the Magistrate Judge.

DONE this 21st day of April, 2010.

 /s/SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE 

 

Case 1:08-cv-00531-WS-B Document 15 Filed 04/21/10 Page 24 of 26
4 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).

25

 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 days4 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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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.

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