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Petitioner states that he was convicted on June 16, 2003 (Doc.

4, p. 2); Respondent states that the conviction was on June 22, 2003

(Doc. 12, p. 1). The Alabama Court of Criminal Appeals agrees that

the conviction was on June 22, 2003 (Doc. 12, Exhibit D, p. 1). 

However, Washington County Circuit Court records show that the trial

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

NEIL WOODYARD, JR., : 

Petitioner, : 

v. : 

CIVIL ACTION 05-0705-KD-M 

DONAL CAMPBELL, : 

Respondent. : 

REPORT AND RECOMMENDATION

This is an action under 28 U.S.C. § 2254 by an Alabama

inmate which was referred for report and recommendation pursuant

to 28 U.S.C. § 636(b)(1)(B), Local Rule 72.2(c)(4), and Rule 8 of

the Rules Governing Section 2254 Cases. This action is now ready

for consideration. The state record is adequate to determine

Petitioner's claims; no federal evidentiary hearing is required. 

It is recommended that the habeas petition be denied, that this

action be dismissed, and that judgment be entered in favor of

Respondent Donal Campbell and against Petitioner Neil Woodward,

Jr. on all claims.

Petitioner was convicted of first degree rape and sexual

abuse in the first and second degree in the Circuit Court of

Washington County on April 22, 20031

 for which he received a

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took place on April 21-22, 2003 and Petitioner was found guilty on the

second day of trial (Doc. 13, Exhibit A, p. 1 and Tr. 1, 3, and 213). 

The sentence was imposed on June 16, 2003 (Doc. 13, Exhibit A, p. 2

and Tr. 5, 218, and 296). 

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Respondent has also referenced an additional particular

claim—that Woodyard’s trial attorney’s overall performance was

ineffective (Doc. 12, p. 19). The Court has not listed this claim,

however, as no specific factual assertions have been made in

connection with it; rather, the Court understands it to be a general

claim of ineffective assistance.

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sentence of twenty years, ten years, and one year, respectively,

to be served concurrently in the state penitentiary (Doc. 4, pp.

2-3; see Doc. 13, Exhibit A, pp. 1-2 and Tr. 1, 3, 213, 296). 

Appeal was made to the Alabama Court of Criminal Appeals which

affirmed the conviction and sentence (Doc. 12, Exhibit D) after

which the Alabama Supreme Court denied Woodyard’s petition for

writ of certiorari (Doc. 12, Exhibit H). On December 14, 2003,

the lower appellate court issued a certificate of judgment on the

convictions (Doc. 12, Exhibit I).

Petitioner filed a complaint with this Court on December 8,

2005, raising the claim that his trial attorney rendered

ineffective assistance of counsel (Doc. 4). Woodyard has more

specifically claimed that his trial attorney failed to: (a)

question venire members when selecting the jury; (b) pose

appropriate objections during the trial; (c) cross-examine

witnesses in a meaningful way; (d) investigate or present

previous false allegations made by the prosecutrix; and (e)

present known exculpatory evidence (Doc. 4, pp. 5-17).2

Respondent has answered the petition and argued that certain

Case 1:05-cv-00705-KD-M Document 22 Filed 08/29/06 Page 2 of 12
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of Woodyard’s claims are procedurally defaulted in this Court

because they were not raised at an appropriate time and place in

the State courts. More specifically, Respondent asserts that

claims b, c, d, and e are all procedurally defaulted. 

Respondent has argued that claims b, c, and d are barred

from this Court’s consideration because they were not raised

before the Alabama Supreme Court on direct appeal (Doc. 12, pp.

10, 13, 15-16, 18). The Court notes that the U.S. Supreme Court,

in O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999), held that

“state prisoners must 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.” 

The evidence demonstrates that Petitioner did not raise

claims b, c, and d in the appeal from the Alabama Court of

Criminal Appeals’ affirmance of the conviction (see Doc. 12,

Exhibit G, pp. 32-50). Though Woodyard’s brief alludes to these

claims as having been raised in a motion for a new trial (id. at

pp. 9-10), these claims were not raised on appeal before the

Supreme Court and are, therefore, procedurally barred in this

Court under O’Sullivan. 

The Court also notes that claim e was found to be

procedurally defaulted by the Alabama Court of Criminal Appeals

because “this specific claim of ineffective assistance of counsel

was not raised in either Woodyard’s motion for a new trial or in

the amendment thereto” (Doc. 12, Exhibit D, p. 6). A United

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The Alabama Supreme Court denied Petitioner’s petition for writ

of certiorari, in summary fashion, on December 10, 2004 (Doc. 12,

Exhibit H). 

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States Supreme Court decision, Harris v. Reed, 489 U.S. 255

(1989), has discussed procedural default and stated that "a

procedural default does not bar consideration of a federal claim

on either direct or habeas review unless the last state court

rendering a judgment in the case 'clearly and expressly' states

that its judgment rests on a state procedural bar." Harris, 489

U.S. at 263, citing Caldwell v. Mississippi, 472 U.S. 320, 327

(1985), quoting Michigan v. Long, 463 U.S. 1032, 1041 (1983). 

The Court further notes the decisions of Coleman v. Thompson, 501

U.S. 722 (1991) and Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991),

which held that a determination by a state appellate court

affirming, without written opinion, a lower court's reasoned

determination that a claimant is barred procedurally from raising

certain claims in that state's courts satisfied the rule of

Harris.3 Petitioner’s claim e is procedurally defaulted in this

Court under Harris.

However, where claims raised in a federal habeas petition

are procedurally defaulted, as is the case here with claims b, c,

d, and e, all chance of federal review is not precluded. The

Eleventh Circuit Court of Appeals, in addressing the review of

these claims, has stated the following:

Under Wainwright v. Sykes, 433 U.S. 72,

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97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) and its

progeny, noncompliance with a state

procedural rule generally precludes federal

habeas corpus review of all claims as to

which noncompliance with the procedural rule

is an adequate ground under state law to deny

review. If a petitioner can demonstrate both

cause for his noncompliance and actual

prejudice resulting therefrom, however, a

federal court can review his claims. 

Booker v. Wainwright, 764 F.2d 1371, 1376 (11th Cir.) (citations

omitted), cert. denied, 474 U.S. 975 (1985). A claimant can also

avoid the procedural default bar if it can be shown that a

failure to consider the claims will result in a fundamental

miscarriage of justice. Engle v. Isaac, 456 U.S. 107, 135

(1982); see also Murray v. Carrier, 477 U.S. 478, 496 (1986).

As requested by the Court (Doc. 14), Woodyard filed a

response to Respondent’s answer, asserting that the claims were

properly raised in the Alabama Supreme Court and are not

procedurally defaulted in this action (Doc. 21, pp. 1-2). 

However, although Petitioner’s general claim of ineffective

assistance of trial counsel may have been preserved, this Court

has found that the particular instances of that ineffectiveness,

i.e., claims b, c, and d, have not been preserved as they were

not specifically raised in the brief to the Alabama Supreme

Court. “Habeas petitioners may not present particular factual

instances of ineffective assistance of counsel in their federal

petitions that were not first presented to the state courts.” 

Kelley v. Secretary for Dept. of Corrections, 377 F.3d 1317, 1344

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(11th Cir. 2004) (citing Footman v. Singletary, 978 F.2d 1207,

1211 (11th Cir. 1992)). Claim e is specifically barred under

Harris.

The Court finds that Petitioner has demonstrated neither

cause nor prejudice for failing to raise these four claims in a

timely manner in the State courts. Furthermore, Woodyard has not

shown that this Court’s failure to discuss the merit of these

four claims will result in a fundamental miscarriage of justice

being visited upon him. Therefore, the Court considers claims b,

c, d, and e in this Court to be procedurally defaulted and the

Court will not address their merit. 

The Court will proceed with an examination of the one claim

of ineffective assistance that is not procedurally defaulted. In

Strickland v. Washington, 466 U.S. 668 (1984), the United States

Supreme Court defined the showing a habeas petitioner must make

to prevail on an ineffective assistance claim:

First, the defendant must show that counsel's

performance was deficient. This requires

showing that counsel made errors so serious

that counsel was not functioning as the

"counsel" guaranteed the defendant by the

sixth amendment. Second, the defendant must

show that the deficient performance

prejudiced the defense. This requires

showing that counsel's errors were so serious

as to deprive the defendant of a fair trial,

a trial whose result is reliable. Unless a

defendant makes both showings, it cannot be

said that the conviction . . . resulted from

a breakdown in the adversary process that

renders the result unreliable. 

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Id. at 687. 

Petitioner claims that his trial attorney was ineffective in

that he failed to fully question venire members when selecting

the jury. Woodyard specifically asserts that the one question

asked by his attorney was insufficient (Doc. 4, pp. 5-6). 

Before proceeding to that question, the Court notes that the

Trial Court Judge, in talking with the venire before the jury was

selected, asked the following questions: if any of them had been

members of the grand jury which involved this case; if they had

been residents or property owners of the County for the past six

months; if they were citizens of Alabama; if anyone had been

indicted for or convicted of a felony within the previous twelve

months; if anyone was under nineteen; if anyone was of unsound

mind; if anyone was a witness in the case; if anyone had an

interest in the conviction or acquittal of the Defendant; if

anyone had given assurance of a conviction or acquittal; if

anyone had a fixed opinion as to the Defendant’s guilt or

innocence; if anyone had knowledge of the facts of the case; if

anyone was related to the victims, the Defendant, members of the

District Attorneys’ Office, or Defense Counsel; or if anyone had

any reason to believe that he or she would be unable to render a

fair and impartial verdict (Doc. 13, Tr. 10-18). 

Following the Court’s questions, the Prosecutor asked the

venire the following questions: if anyone had ever been offended

by anything he, the Prosecutor, had done in the past; if anyone

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felt that the State had to prove more than that the Defendant was

guilty, of the crimes with which he had been charged, beyond a

reasonable doubt and to a moral certainty; if anyone thought that

the State was sending people to prison with little or no

evidence; if the burden of proof should be beyond all doubt; if

anyone could not believe the testimony given by girls that were

nine-to-fourteen years of age; if anyone, or a family member, had

ever been falsely accused of a sexual crime; if anyone knew the

Defense Counsel or had had legal work done by him; whether anyone

had any religious beliefs about judging another man; if anyone

thought that it was ok for a thirty-four-year-old man to have

sexual intercourse with a twelve-year-old if she consented; if

anyone thought that it was ok for a thirty-four-year-old man to

have sexual contact with a girl who was less than twelve years

old if she consented; and if anyone would expect the State to

prove something not in the indictment (Doc. 13, Tr. 18-25). 

The Prosecutor then asked if any of the venire members had

minor children, grandchildren, or great-grandchildren and, if

they did, what was their sex and their age (id. at Tr. 25-33). 

The Prosecutor asked if anyone knew the Defendant or any members

of his family; the venire members who responded affirmatively

were then queried concerning their ability to render a fair and

impartial verdict (id. at Tr. 33-37). The Prosecutor next asked

if anyone had stood up before a group of people and told of a

sexual encounter they had had in their life; whether anyone had

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testified, as a minor, of something embarrassing or intimate;

whether anyone would have difficulty believing a child who had

testified of a personal circumstance though she had previously

stated that nothing had happened; whether anyone had played Truth

or Dare with a minor; whether anyone, as an adult, had regularly

slept with a member of the opposite sex who was less than nine;

whether anyone had accidently put a hickey on a person that was

under twelve years old; whether anyone had videoed children nine

through eleven years of age; whether anyone had been falsely

accused by a minor; whether anyone had ever been charged with any

crime or been the subject of any investigation relating to a

minor; and whether anyone felt that they could not convict

someone on the basis of the testimony of one girl (id. at Tr. 37-

41).

After the Court’s and Prosecutor’s question, Woodyard’s

defense counsel stated the following: 

Thank you, Your Honor. I will be brief. 

Ladies and gentlemen, Mr. Keahey [the

Prosecutor] has been pretty thorough. It’s

kind of embarrassing for me to ask it,

though. This is not intended to embarrass

any of y’all. So, if you do have a problem

answering it standing up, you can talk to

Judge Baxter in private about it.

Is there anyone that you, or immediate

member of your family, or close personal

friend ever experienced sexual abuse? Like I

said, if you are embarrassed to stand up and

say, you can talk to Judge Baxter in private

about it.

(No Response).

That’s all I have got.

Case 1:05-cv-00705-KD-M Document 22 Filed 08/29/06 Page 9 of 12
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(Doc. 13, Tr. 41-42). 

Petitioner has pointed to two U.S. Supreme Court cases as

support for his argument that his attorney was ineffective in

limiting himself to this question (Doc. 4, p. 6). Turner v.

Murray, 476 U.S. 28 (1986); Gray v. Mississippi, 481 U.S. 648

(1987). In Turner, the Supreme Court held that “a capital

defendant accused of an interracial crime is entitled to have

prospective jurors informed of the race of the victim and

questioned on the issue of racial bias.” Turner, 476 U.S. at 37. 

In Turner, the Trial Judge had denied the Defendant’s request to

question venire members about their racial attitudes. The Court

upheld the finding of guilt, but reversed the death sentence. 

Id. In Gray, the Supreme Court held that the exclusion for cause

of a juror, who was not irrevocably committed to vote against the

death penalty in a capital prosecution case, was reversible error

and not subject to harmless-error review. Gray, 481 U.S. 648.

The Court finds that neither of the two cases cited by

Petitioner bears directly on the claim here. This is not a

capital case and is not one where Petitioner’s attorney was

denied a request to poll the jury venire on a particular matter. 

The Court further notes that Woodyard has failed to assert what

other questions should have been posed to the venire by his

attorney (see Doc. 4, pp. 5-6, 12; Doc. 21); even Petitioner’s

briefs in the State Courts fail to offer questions for the venire

Case 1:05-cv-00705-KD-M Document 22 Filed 08/29/06 Page 10 of 12
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(see Doc. 12, Exhibit B, pp. 28-30; Exhibit G, pp. 39-49). The

Court finds that Petitioner has failed to show how his trial

attorney was deficient in questioning venire members when

selecting the jury; the Court also finds that Woodyard has not

demonstrated that he was actually prejudiced by his attorney’s

actions with regard to the voir dire. Petitioner’s claim is

without merit.

In summary, Petitioner has raised five particular claims of

ineffective assistance of trial counsel in bringing this habeas

petition. Four of those claims were found to be procedurally

defaulted; the other claim was without merit. Based on the

foregoing findings, it is recommended that the habeas petition be

denied, that this action be dismissed, and that judgment be

entered in favor of Respondent Donal Campbell and against

Petitioner Neil Woodward, Jr. on all claims.

MAGISTRATE JUDGE’S EXPLANATION OF PROCEDURAL RIGHTS

AND RESPONSIBILITIES FOLLOWING RECOMMENDATION

AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

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

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

this document, file specific written objections with the clerk of

court. Failure to do so will bar a de novo determination by the

district judge of anything in the recommendation and will bar an

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

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

736, 738 (11th Cir. 1988); 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

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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 days after being served with

a copy of the recommendation, unless a different time

is established by order. The statement of objection

shall specify those portions of the recommendation to

which objection is made and the basis for the

objection. The objecting party shall submit to the

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

brief setting forth the party’s arguments that the

magistrate judge’s recommendation should be reviewed de

novo and a different disposition made. It is

insufficient to submit only a copy of the original

brief submitted to the magistrate judge, although a

copy of the original brief may be submitted or referred

to and incorporated into the brief in support of the

objection. Failure to submit a brief in support of the

objection may be deemed an abandonment of the

objection.

A magistrate judge’s recommendation cannot be appealed to a

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

be appealed.

2. Transcript (applicable where proceedings tape recorded). 

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

magistrate judge finds that the tapes and original records in

this action are adequate for purposes of review. Any party

planning to object to this recommendation, but unable to pay the

fee for a transcript, is advised that a judicial determination

that transcription is necessary is required before the United

States will pay the cost of the transcript.

DONE this 29th day of August, 2006.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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