IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

PATRICK JOSEPH CHAREST, )

)

Petitioner, )

)

v. ) Civil Action No. 10-067-CG-C

)

BILLY MITCHEM, )

)

Respondent. )

ORDER

This matter is back before the Court following the Eleventh Circuit 

Court of Appeals’ order vacating the certificate of appealability (“COA”) and 

remanding this case for further consideration. (Doc. 101). The Eleventh 

Circuit specifically directed this Court to “consider whether Charest has 

made a substantial showing of the denial of a constitutional right, in 

conformity with Slack.” (Doc. 101, p. 2). After careful consideration, the Court 

concludes Charest has not made a substantial showing of the denial of a 

constitutional right, and a COA should not issue. 

BACKGROUND1

Patrick Joseph Charest is an Alabama prisoner in the custody of 

respondent, Billy Mitchem. On March 14, 1995, a jury found Charest guilty of 

first-degree rape, first-degree sodomy, and contributing to the delinquency of 

a minor in the Circuit Court of Baldwin County, Alabama. (Appendix A, p. 15

 1 This is an abbreviated background of this twenty-year-old case. The facts 

and procedural history are thoroughly described in the magistrate judge’s 

Report and Recommendation. (Doc. 63, pp. 1 – 33). 

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– 19).2 The circuit court judge sentenced him in May 1995 to two consecutive 

life terms for the rape and sodomy convictions, and one year for the 

delinquency conviction. (Appendix A, pp. 6 – 10). The Court of Criminal 

Appeals confirmed his convictions on direct appeal. Charest v. State, 682 So. 

2d 528 (Ala. Civ. App. 2005).

After being convicted of these crimes, Charest filed his first Rule 32 

petition in state court in February 1998. Charest v. State, 854 So. 2d 1102, 

1103 (Ala. Crim. App. 2002) overruled by Ex parte Jenkins, 972 So. 2d 159 

(Ala. 2005). The Circuit Court of Baldwin County denied that petition, but 

the Court of Criminal Appeals remanded the petition and directed the circuit 

court to address certain ineffective assistance of counsel claims. Id. at 1106. 

Charest raised the basis of the present appeal – that the circuit court lacked 

jurisdiction to hear the case because the crimes occurred in Florida, not 

Alabama – in his initial Rule 32 petition. But as the Court of Criminal 

Appeals recognized, he did not assert this argument on appeal. Charest v. 

State, 854 So. 2d at 1105, n. 3 (“Those claims that Charest raised in his 

petition, but did not assert on appeal, have been abandoned.”). After the 

circuit court addressed the ineffective assistance of counsel claims on 

 2 Appendix A contains excerpts from the record of Charest’s first habeas case, 

03-CV-283-CB-D, including portions of the 1995 state court trial transcript. A 

hard copy of the entire trial transcript was filed as an exhibit during the 

proceedings in Charest’s first habeas case, along with hard copies of 

Charest’s post conviction motions, state responses, and state court orders. 

(03-CV-283-CB-D, Docs. 5, 11). Appendix A contains copies of the original 

record cited in this order to assist with reviewing this case. 

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remand, the court again denied the Rule 32 petition. The Court of Criminal 

Appeals affirmed that ruling. (Doc. 63, p. 17). 

Charest next filed a petition for writ of habeas corpus in the Southern 

District of Alabama on May 8, 2003. (Case 03-cv-283-CB-D). While that 

petition was pending, Charest filed a second Rule 32 petition in the Circuit 

Court of Baldwin County in February 2004. During circuit court hearings in 

2005 related to that petition, Charest reached an agreement with the 

prosecutor and the judge where his delinquency conviction was set aside and 

his life sentences were ordered to run concurrently instead of consecutively as 

originally imposed. (Doc. 59-1; Doc. 62-1, pp. 84 – 91; pp. 95 – 105). In 

exchange for the sentence modification, Charest agreed to waive all pending 

claims in his second Rule 32 petition, with the “exception of his issue of 

whether the court had subject-matter jurisdiction over the actions 

complained of,” because he alleged the crimes occurred in Florida, not 

Alabama.3 (Doc. 62-1, p. 101).

 3 This Court does not condone bargaining with criminal defendants by 

offering sentence modifications in exchange for waiving legal claims. 

Additionally, this Court notes the trial judge erroneously believed the Circuit 

Court of Baldwin County did not have subject matter jurisdiction over 

Charest’s misdemeanor charge and conviction. (Doc. 62-1, p. 100). This is 

incorrect, as the grand jury indicted Charest on felony and misdemeanor 

charges, bringing his entire case within the original jurisdiction of the Circuit 

Court. A copy of the indictment is included in Appendix A. See Appendix A, 

pp. 12 – 13. See also Ex parte City of Tuscaloosa, 636 So. 2d 692, 694 (Ala. 

Crim. App. 1993) (explaining that Alabama law provides “all misdemeanor 

and ordinance violations which arise from the same incident as the felony 

charge are within the exclusive original jurisdiction of the circuit court”); Ala. 

Code § 12-11-30; Ala. Code § 12-12-32(a)(2). 

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Also in 2005, the Southern District of Alabama denied Charest’s first 

petition for writ of habeas corpus (Case 03-cv-283-CB-D; Doc. 16), which the 

Eleventh Circuit Court of Appeals later affirmed (Case 03-cv-283-CB-D; Doc. 

25), because it was time-barred. (Case 03-cv-283-CB-D; Doc. 16, p. 1). 

Charest filed a third Rule 32 petition in September 2006 (Doc. 62-6, p.

1), but he did not argue in that petition that the crimes occurred in Florida.

(Doc. 62-6, pp. 2 – 3). The circuit court denied his petition, which the Court of 

Criminal Appeals affirmed in 2008. (Doc. 62-6, p. 5 – 6). Charest filed a 

fourth Rule 32 petition in 2009, which the circuit court also denied and the 

Court of Criminal Appeals affirmed. (Doc. 9-7). 

Charest then filed his second habeas petition to initiate this case in 

February 2010. After careful consideration, this Court dismissed the petition 

with prejudice for failing to comply with 18 U.S.C. § 2244(b)(3)(A). (Docs. 10, 

14). Charest filed a motion for a COA, which the Eleventh Circuit granted, as 

to the following question:

Whether Charest’s 2005 resentencing constituted a new and 

final judgment and, if so, whether the district court erred in 

finding that Charest’s 28 U.S.C. § 2254 habeas petition was 

second and successive. 

(Doc. 26, p. 4). The Eleventh Circuit eventually concluded that this Court 

failed to address Charest’s argument that his 2005 re-sentencing constituted 

a new and final judgment. The Eleventh Circuit thus vacated and remanded 

the case to this Court for further consideration. (Doc. 29, p. 3). 

Upon remand, this Court appointed legal counsel for Charest, and 

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established a briefing schedule to address the issues identified by the 

Eleventh Circuit. (Doc. 32). After the parties briefed the issues presented on 

remand, the magistrate judge issued a report that recommended denying the 

petition for writ of habeas corpus on the basis that Charest abused the writ 

and because the second petition was time-barred. (Doc. 63, pp. 55 – 56). The 

magistrate judge also concluded that Charest’s 2005 sentence modifications 

were a “new judgment” in accordance with Magwood v. Patterson, 561 U.S.

320 (2010). (Doc. 63, pp. 34 – 36). This Court, however, declined to adopt the 

portion of the magistrate judge’s report and recommendation that discusses 

and concludes that the 2005 sentence modification amounted to a “new 

judgment.” (Doc. 86, p. 5). This Court adopted the remainder of the report 

and recommendation. (Doc. 86, p. 5). 

Charest appealed this Court’s order dismissing his 28 U.S.C. § 2254 

petition on jurisdictional grounds and, in the alternative, denying it as an 

abuse of the writ and untimely. (Doc. 101, pp. 1 – 2). Without considering 

Charest’s underlying claim that the crimes occurred in Florida, this Court

granted a COA on the following question:

Whether Charest’s current habeas petition was a second or 

successive petition and subject to dismissal for lack of 

jurisdiction, or whether his 2005 sentence modification did 

not constitute a new and intervening judgment which, 

pursuant to Magwood v. Patterson, 561 U.S. 320, 130 S. Ct. 

2788 (2010), would restart the one-year period for filing a 

habeas petition. 

(Doc. 96; Doc. 101, p. 2). 

In a brief order, the Eleventh Circuit vacated the COA, and remanded 

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the case for this court to consider whether Charest has made a substantial 

showing of the denial of a constitutional right, in conformity with Slack v. 

McDaniel. 529 U.S. 473, 484 – 85 (2000). The Eleventh Circuit stated this 

Court’s COA “fails to indicate that jurists of reason would find Charest’s 

underlying jurisdictional arguments debatable, insofar as he needed to make 

a substantial showing of the denial of a constitutional right.”4 (Doc. 101, p. 2). 

Pursuant to the Eleventh Circuit’s instruction, this Court now considers 

whether Charest has made a substantial showing of the denial of a 

constitutional right. 

ANALYSIS

“When the district court denies a habeas petition on procedural 

grounds without reaching the prisoner’s underlying constitutional claim, a 

COA should issue when the prisoner shows, at least, (1) that jurists of reason 

would find it debatable whether the petition states a valid claim of the denial 

of a constitutional right and (2) that jurists of reason would find it debatable 

whether the district court was correct in its procedural ruling.” Slack, 529 

U.S. at 484 (numerals and emphasis added). Therefore, determining 

“whether a COA should issue where the petition was dismissed on procedural 

grounds has two components, one directed at the underlying constitutional 

 4 Charest moved the Court to brief the question presented on remand. (Docs. 

102, 104). Charest has thoroughly briefed the question of jurisdiction through 

his Rule 32 petitions, his first federal habeas petition, and this matter. 

Further briefing on the location of the Alabama state line, the indictment, 

trial, and issues related to jurisdiction would be redundant and unnecessary. 

Therefore, Charest’s motions for additional briefing (Docs. 102, 104) are due 

to be DENIED. 

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claims and one directed at the district court’s procedural holding.” Id. at 484 

– 85. In this case, the Eleventh Circuit has directed this Court to re-examine

the first component, and decide whether Charest raised a valid claim of the 

denial of a constitutional right about which reasonable jurists may disagree 

based on his argument that his crimes occurred in Florida, not Alabama.

To make “a substantial showing of the denial of a constitutional right,” 

28 U.S.C. § 2253(c)(2), Charest must demonstrate “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.” Miller-El v. Cockrell, 

537 U.S. 322, 336 (2003) (citation and quotations omitted). Although Charest 

need not demonstrate his appeal will succeed to be entitled to a COA, he 

must “prove something more than the absence of frivolity or the existence of 

mere good faith.” Id. at 338. Charest fails to make that showing here, which 

is supported by the fact that each jurist reviewing this case has agreed that 

Alabama had jurisdiction to prosecute Charest, and there is no debate that 

the claim should have been resolved in a different manner. 

A review of the testimony and evidence offered at trial, along with 

twenty years of post-conviction motions, briefs, and court orders, help confirm 

that Charest’s argument is without merit. During Charest’s trial in 1995, 

multiple witnesses testified that the crimes at issue took place in Alabama. 

Specifically, Tina Charest (Charest’s daughter), “A.C.” (victim), Lawrence 

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Griffith (Baldwin County Sheriff’s Department), and Crystal O’Donovan 

(witness) each testified about the events occurring in Alabama. (Appendix A, 

pp. 20 – 101). No objections were raised at trial regarding the testimony that 

the crimes occurred in Alabama, and the jury found the evidence sufficient to 

convict Charest of rape and sodomy.5

Nevertheless, after his conviction Charest has argued that the “State’s 

Indictment assumes Alabama had Jurisdiction, but no proof at trial.”

(Appendix A, p. 113). Charest has also argued that the Florida line is miles

away from the Perdido River and where the crimes occurred because of 

natural changes over time. (Doc. 63, pp. 7 – 10; Appendix A, p. 114). These 

arguments fail. The Perdido River forms the boundary between Alabama and 

Florida. Ala. Const. I, § 37; Ala. Code § 41-2-4; Fla. Const. art. II, § 1; Fla. 

Stat. Ann. § 6.081. There is no dispute between Alabama and Florida 

regarding the location of the state line. The bridge Charest traversed with 

A.C. crosses the Perdido River, and at trial four witnesses testified Charest 

and A.C. were located on the Alabama side of the bridge when the crimes 

occurred. (Appendix A, pp. 20 – 101). 

However, assuming for the sake of argument that the crimes took 

 5 Charest’s convictions also show that the jury found beyond a reasonable 

doubt that the crimes occurred in Alabama. The State need not show by 

direct evidence that the crime was committed in Baldwin County, Alabama; 

circumstantial evidence will suffice. See Lewis v. State, 461 So. 2d 9, 11 (Ala. 

1984); Allen v. State, 374 So. 2d 447 (Ala. Cr. App. 1979). However, the 

record shows that the State did present direct evidence concerning the 

location of the crime and testimony from four individuals stating that the 

incident took place in Alabama. 

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place on the Florida side of the bridge, the Circuit Court of Baldwin County 

would still have jurisdiction to hear Charest’s case. Charest does not deny 

that he and the victim crossed back and forth between Alabama and Florida

on the night in question. (Doc. 63, p. 3, n. 5). As the United States Supreme 

Court explained in Heath v. Alabama, the doctrine of dual sovereignty would 

thus provide Alabama and Florida with jurisdiction to prosecute Charest. 474 

U.S. 82, 88 (1985).

In Heath, the petitioner hired two men to kill his wife. In accordance 

with petitioner’s instructions, the men kidnapped petitioner’s wife from her 

home in Alabama. Her body was later found on the side of a road in Georgia. 

Petitioner pleaded guilty to “malice” murder in a Georgia trial court in 

exchange for a sentence of life imprisonment. Subsequently, he was tried and 

convicted of murder during a kidnapping and was sentenced to death in an 

Alabama trial court, which rejected his claim of double jeopardy. Id. at 84. 

The Alabama Court of Criminal Appeals and the Alabama Supreme Court 

affirmed the conviction. The Supreme Court then affirmed the Alabama 

Supreme Court, explaining:

The Constitution leaves in the possession of each State 

certain exclusive and very important portions of sovereign 

power. Foremost among the prerogatives of sovereignty is the 

power to create and enforce a criminal code. To deny a State 

its power to enforce its criminal laws because another State 

has won the race to the courthouse would be a shocking and 

untoward deprivation of the historic right and obligation of 

the States to maintain peace and order within their confines.

Heath, 474 U.S. at 93 (internal citations and quotations omitted). The 

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Supreme Court also acknowledged Alabama’s criminal code includes a 

statute that provides: 

When the commission of an offense commenced in the State 

of Alabama is consummated without the boundaries of the 

state, the offender is liable to punishment therefor in 

Alabama; and venue in such case is in the county in which 

the offense was commenced, unless otherwise provided by 

law. 

Id. at 85 (citing Ala. Code § 15-2-3). Accordingly, if a crime commences in 

Alabama it may be punished in Alabama regardless of where the crime is 

consummated. Id. Here, Charest began the sequence of events that led to his 

rape and sodomy convictions while traveling between Alabama and Florida. 

Thus even if the crimes ultimately occurred in Florida, as Charest argues, 

Alabama still had jurisdiction to try the case. The record, however, does not 

support Charest’s contention that the crimes took place on the Florida side of 

the Perdido River. 

The Court of Criminal Appeals has further noted that jurisdiction over 

a defendant “requires both personal and subject matter jurisdiction” and 

matters of “personal jurisdiction are waivable.” (Doc. 62-14, pp. 7 – 8); see

also Goulden v. State, 299 So. 2d 325, 326 (Ala. 1974) (jurisdiction requires 

personal jurisdiction of the parties and the subject matter to be adjudged). 

Charest appeared in the Circuit Court of Baldwin County and had his case 

tried by a jury, thus he waived any arguments concerning personal 

jurisdiction he may have tried to claim. See Boles v. State, 717 So. 2d 877, 

881 (Ala. Crim. App. 1998) (“Personal jurisdiction is attained by a defendant’s 

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appearance before the court.”). Subject matter jurisdiction is a court’s power 

to decide a case. Ex Parte Seymour, 946 So. 2d 536, 538 (Ala. 2006) (subjectmatter jurisdiction refers to a court’s “statutory or constitutional power” to 

adjudicate a case). In Alabama, circuit courts have subject matter jurisdiction 

over felony prosecutions. Id. at 539; see also Rothchild v. State, 558 So. 2d 

981, 983 – 84 (Ala. Crim. App. 1989) (explaining the “subject matter” in the 

criminal setting is the crime itself, and circuit courts have jurisdiction over 

felony cases). Because Charest’s indictment and trial included two felony 

counts, the circuit court had subject matter jurisdiction over his case. Ala. 

Code § 12-11-30; Ala. Code § 12-12-32(a)(2).

Apart from Charest arguing that his crimes occurred in Florida, there 

is no indication that jurisdiction in this case is otherwise defective. The 

indictment pertained to felony and misdemeanor charges, giving the circuit 

court jurisdiction to hear the case. Charest’s argument that the boundary 

between Florida and Alabama does not rest in the Perdido River is without 

merit. As a result, the Circuit Court of Baldwin County had jurisdiction to 

preside over Charest’s trial in 1995. 

CONCLUSION

After reviewing the extensive record in this case, and carefully 

considering Charest’s argument concerning the trial court’s alleged lack of 

jurisdiction, the Court concludes Charest does not raise a valid claim of the 

denial of a constitutional right. The record shows Alabama had jurisdiction to 

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try this case. The Circuit Court of Baldwin County, the Court of Criminal 

Appeals, and the Alabama Supreme Court have likewise concluded that 

Alabama had jurisdiction to try this case. Although jurists may debate 

whether the 2005 modification of Charest’s sentence amounts to a new 

judgment (Doc. 86, pp. 3 – 5), jurists of reason would agree Charest has not 

stated a valid claim of the denial of a constitutional right based on his 

assertion that the border between Alabama and Florida is unclear.

Because the two components of Slack are not satisfied, a COA should 

not issue. Charest’s motions for more briefing (Docs. 102, 104) are DENIED. 

Additionally, the Court again concludes that in the alternative, the writ is 

due to be denied because Charest has abused the writ and it is time-barred. 

 DONE and ORDERED this 31st day of August, 2015. 

/s/ Callie V. S. Granade

UNITED STATES DISTRICT JUDGE

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