IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

PATRICK JOSEPH CHAREST, :

AIS 182262,

:

Petitioner,

:

vs. CA 10-0067-CG-C

:

BILLY MITCHEM,

:

Respondent.

REPORT AND RECOMMENDATION

This cause is back before the undersigned for issuance of another report and 

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

following remand of this action by the Eleventh Circuit Court of Appeals (see Doc. 29). 

The appellate court’s April 14, 2011 unpublished opinion vacating the judgment of this 

Court and remanding for further proceedings (id.) was issued as mandate on June 24, 

2011 (Doc. 31) and reads, in relevant part, as follows:

We prefer for the district court to address in the first instance the 

significance for this case of the Supreme Court’s decision in Magwood [v. 

Patterson, , U.S. , 130 S.Ct. 2788 (2010)]. On remand, the district court 

should address, inter alia, the following issues: (1) whether the August 12, 

2005, Order of the Circuit Court of Baldwin County, Alabama, constitutes 

a “new judgment” as contemplated by the Supreme Court in Magwood; 

(2) if so, whether Charest is entitled to assert in the instant habeas not only 

challenges to his sentence[s], but also challenges to his underlying 

conviction[s]; and (3) if there is no bar to Charest’s challenge to his 

underlying conviction[s] pursuant to 28 U.S.C. § 2244(b), is there 

nevertheless a bar pursuant to the abuse of the writ doctrine.1 The second 

issue was expressly not addressed by the Supreme Court in Magwood. 

See id. at 2802-03. But see Johnson v. United States, 623 F.3d 41 (2d Cir. 

 1 “On remand, the district court should also address any relevant time bars or 

procedural bars.” (Doc. 29, at 7 n.3.)

Case 1:10-cv-00067-CG-C Document 63 Filed 03/08/13 Page 1 of 57
2

2010). Also, the third issue was apparently also left open by Magwood. 

See Magwood, 130 S.Ct. at 2803 (Breyer, J., concurring).

(Doc. 29, at 6-7.) While the undersigned initially read the Eleventh Circuit’s opinion as 

requiring the respondent to amend his answer to raise any additional defenses available 

to him, such as procedural default (see Doc. 39), the respondent later argued that this 

Court first need address the foregoing issues raised by the Eleventh Circuit’s remand 

opinion before requiring, if necessary, the respondent to file an amended answer 

(compare Doc. 46 with Docs. 47-49). Because briefing on the three issues identified by the 

Eleventh Circuit is now complete (see Docs. 50, 57 & 59), and the respondent has 

expanded the record in this case as ordered by the undersigned (compare Doc. 58 with 

Doc. 62), this cause is ripe for entry of the instant report and recommendation.2

In order for the undersigned to properly address the issues framed by the 

Eleventh Circuit, it is necessary to provide a proper historical context to petitioner’s 

convictions and sentences and, to this end, the undersigned ordered from the Federal 

Records Centers of the National Archives and Records Administration the complete file 

of petitioner’s habeas corpus attack on his convictions and sentences filed on May 8, 

2003, Charest v. Ferrell, 03-0283-CB-L, Doc. 1.

3 Therefore, while some of the facts utilized 

herein will be the same as those contained in the undersigned’s report and 

recommendation entered in this case on June 1, 2010 (Doc. 10), the undersigned will 

 2 The undersigned notes that he prominently will address whether Charest’s 

petition is time barred given that this issue has also been fully briefed by the parties. (Compare 

Doc. 50, at 8 and Doc. 59, at 10-11 (pertinent pages of petitioner’s briefs) with Doc. 57, at 28-32 

(pertinent pages of respondent’s brief).)

3 The habeas petition filed by Charest in 2003 was not the first habeas corpus 

complaint filed by petitioner in this Court. Indeed, on June 23, 1997, Charest filed his first 

federal habeas corpus petition in this Court. See Charest v. Johnson, CA 97-0565-CB-M, Doc. 1. 

This petition was dismissed on October 14, 1997 due to Charest’s failure to prosecute. See id. at 

Doc. 8.

Case 1:10-cv-00067-CG-C Document 63 Filed 03/08/13 Page 2 of 57
3

also liberally intersperse facts gleaned from Charest v. Ferrell, supra, the supplemental 

documents filed by the respondent (see Doc. 62), and facts not included in the previous 

report and recommendation though available to the undersigned at that time from the 

documents filed by the respondent and appended to his answer (see Doc. 9, Exhibits AH).

BACKGROUND

On March 14, 1995, Charest was convicted of first-degree rape and first-degree 

sodomy in the Circuit Court of Baldwin County, Alabama. (See Doc. 9, Exhibit F, at 1.)4

On May 27, 1994, petitioner planned to pick up his teenage 

daughter, Tina, and her sixteen year old friend, a minor female 

(hereinafter referred to as “A.C.”) along with Tina’s younger sisters, 

Tiffany and Terri, from University Mall in Pensacola. Because petitioner 

was late, Tina contacted her mother who then drove to the mall to pick up 

the children. (Doc. 11, Exhibit AA, Vol. I, R-64-R-66; Vol. II, R-245-R-246). 

Upon the mother’s arrival, petitioner also arrived, and it was apparent 

that he had been drinking. (Id.). Tina’s mother drove Tiffany and Terri 

home, while Tina and “A.C.” accompanied petitioner in his truck. (Id. at 

R-64-R-66). After leaving the mall, petitioner drove to a convenience store 

where he purchased wine coolers, and then commented that he did not 

want to go home because his wife, Tina’s mother, was angry with him. (Id. 

at R-68; Vol. II, R-247). Tina asked to drink a wine cooler, and petitioner 

agreed but advised her to not drink it in public because she might get in 

trouble. (Id. at R-94, R-105). Tina then suggested that they drive to 

Barrineau Park where there was a party going on.5 (Id. at R-103-R-105).

When petitioner, Tina, and “A.C.” arrived at Barrineau Park, they 

drove across the bridge into Alabama, parked, and drank the wine coolers 

 4 Petitioner was also convicted of misdemeanor contributing to the delinquency of 

a minor, for which he received a sentence of one year in the Baldwin County Jail to be served 

consecutively to his life sentences. Charest v. Ferrell, CA 03-0283-CB-L, Doc. 11, May 26, 1995 

Sentencing Transcript, at 9.

5 “Barrineau State Park is located at the Perdido River, where the bridge connects 

the Florida and Alabama state lines. (Doc. 11, Exhibit AA, Vol. I, R-53-R-55). Throughout the 

evening and early morning of May 28, 1994, petitioner, Tina, and ‘A.C.’ traveled back and forth 

between the Florida side and the Alabama side. The alleged crimes occurred while petitioner 

and ‘A.C.’ were located on the Alabama side of the bridge. (Id. at R-69-R-70, R-76-R-77; Vol. II, 

R-253-254, R-270).” (Doc. 9, Exhibit B, at 2 n.2.)

Case 1:10-cv-00067-CG-C Document 63 Filed 03/08/13 Page 3 of 57
4

petitioner had previously purchased. (Id. at R-69-R-71; Vol. II, R-249). 

Later, the three left the Park area and drove to a convenience store because 

they were out of alcohol. (Id. at R-71-R-72; Vol. II, R-250). After buying 

additional wine coolers, petitioner and the girls returned to the Park area 

and parked on the Florida side. (Id. at R-74-R-75). Petitioner’s nephew, 

Ruben O’Donovan, joined petitioner and “A.C.” at petitioner’s truck, 

while Tina accompanied her cousin Crystal O’Donovan to a nearby 

bonfire party. (Id.) “A.C.” testified that petitioner helped her to stand by 

the truck because she was drinking and having trouble standing. (Id. at 

Vol. II, R-252-R-253). Petitioner kissed “A.C.”, and then told Tina that he 

was going to go “help” “A.C.” “throw up.” Petitioner subsequently drove 

“A.C.” alone to the Alabama side of the bridge. (Id. at Vol. II, R-177, R-253; 

Vol. III, R-360).

Once on the Alabama side of the river, “A.C.” testified that 

petitioner helped her take off her clothes. (Id. at Vol. II, R-253-R-254, R260-R-261). According to “A.C.”, petitioner then tried to have intercourse 

with her, but told her that she was too “little.” (Id. at Vol. II, R-261). 

“A.C.” felt that petitioner’s penis did penetrate her at least in part, and it 

was painful. (Id. at Vol. II, R-263). “A.C.” stated that she was crying and 

telling petitioner to stop, but she was weak from the alcohol. (Id. at Vol. II, 

R-261). Petitioner then pushed “A.C.”’s head down, and instructed her to 

“suck” his “cock.” (Id. at Vol. II, R-261-R-262). “A.C.” testified that she 

tried to fight, but she was weak and ultimately threw up on petitioner as 

he was forcing her mouth onto his penis. (Id. at Vol. II, R-262). The 

incident ended when Tina approached petitioner’s truck. (Id. at Vol. II, R264).

Crystal likewise testified that she and Tina had watched the truck 

cross the bridge and disappear onto the Alabama side of the river. (Id. at 

R-77; Vol. II, R-177-R-178). Tina became worried, and she and Crystal 

walked across the bridge to find her father and “A.C.”. (Id.) Crystal 

testified that on their first trip over the bridge, they could not find 

petitioner’s truck, and thus returned to the Florida side of the river so they 

could use the bathroom. (Id. at Vol. II, R-179, R-181-R-182). Crystal 

testified that after returning to the Florida side of the river, she and Tina 

used the bathroom, and then walked a second time over the bridge, and 

located petitioner’s truck on the Alabama side of the river. (Id. at Vol. II, 

R-179-R-182). According to Crystal, she and Tina approached the truck 

which was parked with the doors closed and tinted windows rolled up, 

and they knocked on the driver’s side door. (Id. at R-79-R-80; Vol. II, R182). Crystal testified that petitioner cracked his window, advised them 

that “A.C.” was throwing up in his truck, and requested that Crystal and 

Tina walk back over the bridge and obtain a towel to clean up the mess. 

(Id. at Vol. II, R-183). After Crystal and Tina walked to the Florida side of 

the bridge, petitioner followed them a few minutes later. (Id.) After they 

obtained a towel, Crystal stayed on the Florida side of the river while 

Case 1:10-cv-00067-CG-C Document 63 Filed 03/08/13 Page 4 of 57
5

petitioner and Tina returned to the Alabama side of the river where 

“A.C.” had remained. (Id. at Vol. II, R-188). Crystal testified that when 

petitioner, “A.C.” and Tina returned to the Florida side of the river, they 

stopped and socialized for a little while prior to leaving for home. (Id. at 

Vol. II, R-189-R-190).

After petitioner, Tina, and “A.C.” left Barrineau Park, they returned 

to petitioner’s home in the early morning hours of May 28, 1994. (Id. at 

Vol. II, R-266). Tina and “A.C.” changed into pajamas and went into the 

bathroom, where Tina’s mother approached and inquired as to whether 

they had been drinking. (Id. at Vol. II, R-266-R-267). Tina denied that they 

had been drinking, and the two girls then went to bed. (Id.) The next 

morning, according to “A.C.”, she called her mother numerous times 

requesting that she come and pick her up because she was not feeling 

well. (Id.) “A.C.”’s mother finally did arrive to pick her up around 8 or 9 

a.m. (Id. at Vol. II, R-267). Before she left, “A.C.” said that petitioner 

approached her and questioned her as to whether something had 

happened between them the night before, or whether it was a “dream.” 

(Id.) Petitioner instructed “A.C.” that she should tell no one about the 

incident. (Id. at Vol. II, R-267-R-268). “A.C.” testified that she did not tell 

Tina about the incident because Tina was her best friend and “A.C.” did 

not want to hurt her. (Id. at Vol. II, R-266). Approximately three weeks 

later, “A.C.”’s older sister suspected what had occurred, and thus advised 

their mother, Debra Cushing. (Id. at Vol. II, R-277).

(Doc. 9, Exhibit B, at 2-5 (internal footnote omitted).)6 Charest was sentenced, on May 

26, 1995, to consecutive terms of life imprisonment for rape and sodomy. (Doc. 9, 

Exhibit F, at 1.)7 Petitioner’s convictions and sentences were affirmed on appeal by the 

Alabama Court of Criminal Appeals in an unpublished memorandum decision issued 

on December 1, 1995. See Charest v. State, 682 So.2d 528 (Ala.Crim.App. 1995) (table).

I

Charest contends that the trial court erroneously ruled that he 

 6 The undersigned would now add to this recitation of the testimony at 

petitioner’s trial that Crystal O’Donovan testified that from the moment petitioner and A.C. left 

the Florida side of the river in his truck and travelled to the Alabama side of the river, fifteen 

(15) to twenty (20) minutes passed before she and Tina Charest knocked on the driver’s side 

window of the truck. See Charest v. Ferrell, CA 03-0283-CB-L, Doc. 11, Exhibit AA, T.T. 185.

7 As previously noted, Charest also received a one-year consecutive sentence 

based upon his conviction for contributing to the delinquency of a minor. See, supra, n.4. 

Case 1:10-cv-00067-CG-C Document 63 Filed 03/08/13 Page 5 of 57
6

failed to present a prima facie case that the prosecution had violated the 

rule in Batson. Charest alleged that the prosecution struck jurors on the 

basis of their gender. At trial, Charest made his Batson motion, and 

supported it only with the allegation that “the state has predominately 

struck male members of the jury. The state as well as the defendant had 

nine strikes in this case. Five of the state’s strikes were male members of 

the jury.” Charest further notes, in the record, that there were more men 

than women on both the jury venire and the petit jury.

As in Baker v. State, [CR-94-0061, released September 29, 1995] 

So.2d (Ala.Cr.App. 1995), “the record does not contain the clerk’s 

office jury list of any relevant information about the jurors.” The record 

does not reflect the composition of the jury venire or of the petit jury. 

Therefore, Charest has provided the court with insufficient data to 

support a statistical analysis of the prosecution’s strike pattern. We further 

note that based upon Charest’s cursory colloquy with the trial court, the 

trial court was well within its discretion in ruling that Charest failed to 

present a prima facie case of a Batson violation. This issue is without 

merit.

II.

Charest contends that the trial court erroneously denied his 

requested jury charge on circumstantial evidence. Following the jury 

charge, Charest made the following objection: “We object to the Court’s 

refusal to charge on circumstantial evidence.” This general objection 

stated no grounds, and was insufficient to preserve this question for 

appellate review.

III.

Charest contends that his consecutive life sentences violated the 

constitutional bar against double jeopardy. Specifically, Charest argues 

that rape and sodomy are “kindred crimes” for which double punishment 

[is] disallowed. The law is settled that rape and sodomy are very different 

crimes, and the double jeopardy bar does not prohibit punishment for 

each offense separately. This contention is without merit.

Charest v. Ferrell, 03-0283-CB-L, Doc. 5, Exhibit A, R. 228-229 (most internal citations 

omitted). A certificate of final judgment of affirmance was issued by the Alabama Court 

of Criminal Appeals on February 6, 1996. (Doc. 9, Exhibit G, at 1.)

Charest filed his first Rule 32 petition in the Circuit Court of Baldwin County, 

Alabama some two years later on February 10, 1998, collaterally attacking his 

Case 1:10-cv-00067-CG-C Document 63 Filed 03/08/13 Page 6 of 57
7

convictions and sentences. (Id.) Charest attached to his approximately eighty-seven (87) 

page pro se collateral attack numerous exhibits, including a letter dated August 8, 1995 

and addressed to one Daniel Craven, Esquire, a motion for production of documents, 

and a January 22, 1998 memorandum penned by Thayer C. Lindauer to Harold 

Pridgeon with attached statutory law. See Charest v. Ferrell, 03-0283-CB-L, Doc. 5, Exhibit 

A, R. 111-124, 131-135 & 196-200. In the letter to Craven, Charest complained that his 

charges “stem[med] from Florida not Alabama” and, further, that trial counsel provided 

ineffective assistance in failing to file a motion “to quash case prior to trial for . . . 

wrongful state prosecuting [his] charges, since State of Florida could not find any 

evidence, [then] Alabama does[.]” Id. at R. 113 & 114. Moreover, his motion for 

production of documents sought copies of all “reports, conclusions, findings, writings, 

statements, documents, or any evidence from the Florida officials who[] initially 

investigated []his [] case[.]” Id. at 133. Finally, but by no means any less important, 

Lindauer’s letter to Pridgeon reads, in relevant part, as follows:

I went to the local law library and got copies of portions of each state’s 

constitution. Attached is Article 2 of the Alabama Constitution wherein 

Section 37 defines the boundaries Alabama has with Florida. Next you 

will see Sections 6.08 and 6.081, these are provisions in the Florida 

Constitution that define Florida’s boundary with Alabama.

You need to take these to a qualified surveyor. I am not a surveyor, but I 

read the Alabama statute and Section 6.081 of Florida’s law to be 

consistent and probably mean that the state boundary along the Perdido 

River is the middle of the river. But I can’t be sure and I want a surveyor 

to tell us, both from Alabama’s law and again from Florida’s law, where 

each state places the boundary in relation to the Perdido River.

I could find no cases where the courts dealt with the problem of the river 

changing course over the years. Surely a competent local surveyor 

understands that concept and how it is dealt with for surveying purposes.

Id. at R. 196. Interestingly, four days prior to Charest’s lengthy filing, petitioner’s 

Case 1:10-cv-00067-CG-C Document 63 Filed 03/08/13 Page 7 of 57
8

retained Rule 32 counsel, William Scully, Esquire, filed a Rule 32 petition on Charest’s 

behalf raising numerous issues, including the following: 

C. The Court was without jurisdiction to render judgment or to 

impose sentence in that the offense, if any, was committed in the State of 

Florida, not in the State of Alabama.

1) The incidents complained of in this case occurred on and 

near a bridge between the State of Alabama and the State of Florida. The 

petitioner has evidence that the location upon which the incident is 

alleged to have occurred is, in fact, located in the State of Florida. This 

would deprive the Court of jurisdiction over the subject matter of this 

case.

2) As noted above, this issue was not preserved at trial 

by the defendant’s trial attorney, or raised on appeal by the defense 

appellate attorney.8

. . .

E[.] There are newly discovered material facts which exist that 

require the conviction or sentence to be vacated by the Court.

1) In particular, as noted above, the petitioner has 

evidence that the incident complained of occurred in the State of 

Florida, not in the State of Alabama.

2) The defendant did not have adequate ability to 

discover this information at the time of trial, and has only recently 

discovered it.

3) This is a material fact, which if accurate, would 

require the conviction to be vacated as the Court would lack 

jurisdiction.

Id. at R.264 & 266 (emphasis supplied). 

On May 28, 1998, Charest filed a pro se motion to compel the State’s “belated 

answer” to an order entered by the Baldwin County Circuit Court. See id. at R. 287-296. 

Therein, Charest noted the need for the state to respond to his petition’s numerous 

 8 Concurrently, therefore, Scully argued that petitioner’s trial and appellate 

counsel provided ineffective assistance in failing to raise this jurisdictional issue. Id. at R. 261.

Case 1:10-cv-00067-CG-C Document 63 Filed 03/08/13 Page 8 of 57
9

“meritorious” issues, including: “Whether Vel Non did Alabama/Florida have in 

‘Personam Jurisdiction’ to prosecute Charest[.]” Id. at R. 292. When the State finally 

filed its response to Charest’s Rule 32 petition on June 25, 1998, the Assistant District 

Attorney argued that this issue was one “of fact[]” which should have been raised “at 

trial, at the end of the State’s case, at the end of the evidence, or after pronouncement of 

sentence.” Id. at R. 304. On the same day that the State filed its response, Charest filed a 

request that the court take judicial notice of certain facts. Id. at R. 311-315. 

CHAREST RESPECTFULLY[] avers that this honorable court to 

fully accept this Exhibit marked herein as “[WW]”, so by the ‘Mobile 

Press Register’, dated April 7, 1998 by staff reporter Mrs. Connie Baggett.

2.

CHAREST AVERS[] that this adjudicative fact, established by Greg 

Spies, secretary of the Alabama Society of Professional Land Surveyors, 

respectfully shows:

1, “’Dispute[] Revived’”;

2, “’No Quick Answers’”;

3, “’Marked by Mounds’”;

4, “A Large Task’”;

Wherein Greg Spies says: “It[‘]s 1840 all over again.”

3.

CHAREST AVERS[] that through the 1790 calculations, they 

[were] in some points remarkably accurate, there [were] obvious errors, 

and its [q]uoted therein that the plotting came close, his line actually ran 

from a few feet to hundreds of feet [off], to the agreed-upon line.

4.

CHAREST AVERS[] further that “when Ellicott’s mound lines, as 

in case sub judice, were retraced it was a straight line,” Spies said: “From 

mound to mound it zig-zags, or the[re] is an angular change from mound 

to mound. It[‘]s about One-Hundred (100) to Nine-Hundred (900) feet 

[Off], what we consider to be the . . . [Ala/Fla. Border], today.”

5.

Case 1:10-cv-00067-CG-C Document 63 Filed 03/08/13 Page 9 of 57
10

CHAREST AVERS[] that the United States Bureau of Land 

Management surveyor, Mr. Corwyn J. Rodine, says:

“Researchers would have to pore over Historical records and 

interview landowners to get evidence, and;

“Estimates of $600,000.00 to retrace the path are very 

conservative,[] he said.”

6.

CHAREST AVERS[] that even President George Washington[] in 

1796 duly appointed surveyor “Ellicott” to survey and mark boundary 

between the United States[] and the Florida boundary held by Spain[.] . . . 

[T]he Alabamian surveyor said:

“The state boundary marked on roadways are not reliable 

survey[]s, reference points. So debates are likely to linger 

until the Federal government orders the line to be 

resurveyed.”

“Since the states, (Ala/Fla), would have to agree to abide by 

‘its results’, few would expect . . . resurvey anytime soon.”

Id. at 311-313 & 313 (some emphasis added). 

On July 6, 1998, Charest filed a pro se traverse to the Assistant District Attorney’s 

answer and therein argued at some length that the exhibits he had supplied the court 

reflected that any alleged crime occurred in Florida, not Alabama. See id. at 336-338.

[B]ecause of the inherent Constitutional violations, the Constitution 

supersedes any procedural doctrine, any forfeiture default at the fault of 

[t]rial, sentencing and appellate counsel, when raised under Rule[] 32.

Take judicial notice of the argument and admissions herein by both 

parties especially the Respondent[‘]s “This is an issue of fact”, that the 

alleged crime occurred not in Alabama as alleged, originally, but in fact in 

Florida as presented herein, so by the state admitting this issue, it[‘]s easy 

to concur the Convictions/Sentences are clearly illegal and not authorized 

by law. The Alabama Supreme Court held in Ex parte Brannon, 547 So.2d 

68, 69 (Ala. 1989), when a sentence is clearly illegal or is clearly not 

authorized by statute, the defendant does not have to object at trial level 

in order to preserve that issue for appellate review. . . . Indeed the 

Case 1:10-cv-00067-CG-C Document 63 Filed 03/08/13 Page 10 of 57
11

illegality of a defendant’s sentence is a ground specified in Rule 20 . . . for 

a collateral Post-Conviction remedy, as herein[] (now Rule 32). 

It is well established law, that a right to [be] tried in place where 

offense occurred is substantially a Constitutional right. Proof of venue is 

jurisdictional to the extent that without such proof, where question is 

properly raised, conviction cannot stand. 

The Petitioner would further argue that the state’s line of 

reasoning: “The time for a defendant to raise this issue is at trial, at the 

end of the state[‘]s case, at the end of the evidence, or after 

pronouncement of sentence[,”] [d]oes not follow stare decisis. 

The Petitioner would assert that this Honorable Court[] merely 

need not look any further[] to determine that the Petitioner’s Convictions 

and Sentences are due to be held naught, set aside and appropriately 

vacated.

Id. at 337-338 (internal citations omitted).

On December 28, 1998, Susan G. James, Esquire, filed her notice of appearance as 

counsel of record for Charest. See id. at 350. James sought leave to supplement Charest’s 

Rule 32 petition on March 11, 1999, specifically averring therein that new evidence had 

been discovered supporting the claim that petitioner had been deprived of his Sixth 

Amendment right to effective assistance of counsel. See id. This supplement did not 

“touch upon” or provide further development for Charest’s contention that the alleged 

crimes did not occur in Alabama. See id. at 353-364.9 However, counsel for Charest filed 

a consolidated petition for relief from conviction or sentence pursuant to Rule 32 on 

April 19, 1999, see id. at 379-400,10 and therein noted that petitioner was “anxious that 

 9 On March 26, 1999, James filed a motion to add petitioner as co-counsel based 

upon Charest’s desire to participate “in presenting evidence[.]” Id. at 367-368.

10 As noted in the report and recommendation entered by this Court on January 31, 

2005, “[o]n March 19, 1999, the circuit court held a hearing, and, on April 2, 1999, it entered an 

order on the case action summary, ordering new counsel to file an amended petition within 30 

days. . . . The court also entered an order striking all pleadings filed before March 19, 1999.” 

Charest v. Ferrell, CA 03-0283-CB-L, Doc. 14, at 7 (citations omitted). 

Case 1:10-cv-00067-CG-C Document 63 Filed 03/08/13 Page 11 of 57
12

each and every issue raised in the original, amended, and supplemental petitions 

become a part of this final consolidated petition[,]” Charest v. Ferrell, 03-0283-CB-L, Doc. 

5, Exhibit A, R. 394, and thereafter listed additional grounds for relief including the 

following:

c. The Defendant was denied effective assistance of counsel at the 

trial and appellate levels in the following ways:

1. The Defendant’s attorney at trial failed to adequately object 

to and preserve[] jurisdictional issues. The Court was 

without jurisdiction to render judgment or to impose 

sentence in that the offense, if any, was committed in the 

State of Florida, not in the State of Alabama. The incidents 

complained of in this case occurred on or near a bridge 

spanning the Perdido River. The State however, never 

offered strict proof of jurisdiction. At that point along the 

river, the Perdido River is not the border between Alabama 

and Florida and Barrineau Park may be at least twenty 

miles from the Alabama border (Affidavit Exhibit D).

11

2. The Defendant’s appellate counsel failed to consult with the 

Defendant when preparing Petitioner’s appeal.

Id. at 395 (emphasis supplied). The State’s June 22, 1999 response to petitioner’s 

jurisdictional issue raised in his consolidated Rule 32 petition reads, as follows: “All the 

witnesses testified that the events occurred in Alabama. The Alabama Code and 

applicable Florida statutes show the border between the States at the location where 

Charest raped and sodomized the child is the middle of the Perdido River.” Id. at 489-

490.12

On July 8, 1999, a hearing was conducted by the Circuit Court of Baldwin 

 11 “Affidavit forthcoming[.]” Id. at 395, n.4 (emphasis supplied).

12 Interestingly, the Rule 32 record contains an offense report prepared by the 

Escambia County (Florida) Sheriff’s Department and the following observation by the officer 

receiving the information from the victim’s mother: “FROM THE INFORMATION I 

OBTAINED IT SOUNDS AS THOUGH THE ACTUAL OFFENSE TOOK PLACE ON THE 

ALABAMA SIDE OF THE RIVER.” Id. at R. 428.

Case 1:10-cv-00067-CG-C Document 63 Filed 03/08/13 Page 12 of 57
13

County, Alabama “on the petition for Rule 32 relief.” Charest v. Ferrell, 03-0283-CB-L, 

Doc. 5, Exhibit A, Vol. IV, Rule 32 Transcript at 32; see also id. Tr. 33-107. Although the 

focus of that hearing was on other issues, see id., including specific instances of 

ineffective assistance of counsel, Charest was afforded the opportunity to list all 

instances of ineffective assistance of counsel that deserved attention from the court, see 

id. at 73-74, and specifically mentioned his trial attorney’s failure “to challenge the 

jurisdiction or the venue of this specific case, because it was dealing allegedly on the 

border of Florida and Alabama, and all the witnesses and testimony came out of the 

State of Florida.” Id. at 74; see also id. (“And I would assume that Mr. Matheny will even 

allege that every official that ever had to go investigate . . . includ[ing] him . . . all went 

to Florida to investigate this crime.”). In the March 10, 2000 order denying Charest Rule 

32 relief, Baldwin County Circuit Judge Lyn Stuart specifically noted in answer to 

Charest’s assertion that “there was lack of jurisdiction and [] his counsel failed to 

properly raise the issue[]” that “[t]here was ample evidence that the offenses occurred 

in the State of Alabama.” Charest v. Ferrell, 03-0283-CB-L, Exhibit A, R. 504 & 505.

On March 22, 2000, Charest filed a motion for reconsideration in which he 

argued that the trial court “ONLY TOUCHED” upon his claim that “Alabama had no[] 

jurisdiction over (subject matter) of the alleged offense and prosecuted [him] 

illegally[,]” id. at 508, and argued that the trial court gave no consideration to his 

argument that “[c]ounsel failed to object to Sgt. Griffith[‘]s testimony (Perdido River) 

establishing jurisdiction[.]” Id. at 510 (emphasis supplied). In his “Exhibit” filed in 

support of the motion for reconsideration, Charest made the following arguments:

ISSUE # 6-

ALABAMA HAD NO JURISDICTION AND PROSECUTED ILLEGALLY

Case 1:10-cv-00067-CG-C Document 63 Filed 03/08/13 Page 13 of 57
14

The State never offered strict proof of jurisdiction[.] A mere 

allegation that the alleged offense occurred on the “Alabama-side” of the 

Perdido River is not sufficient proof. The Perdido River is not the border 

between Alabama/Florida at that point, and in actuality, the site where 

the alleged offense[s] occurred[] may be at least [t]wenty (20) miles in 

Florida, establishing the boundary.

. . .

ISSUE # 14-

COUNSEL’S PERFORMANCE AT TRIAL WAS INADEQUATE & 

INEFFECTIVE PER STRICKLAND

JAMES MAY AT TRIAL

. . .

4[.] Failed to File Motion for challenge the Jurisdiction/Venue[.]

. . .

11[.] Failed to speak with the Florida [a]ttorney, Katherine 

Eddings[,] whom already represented Charest in present case, prior to it 

coming to Alabama[.]

. . .

ISSUE # 15-

COUNTS I, II & IV WERE ILLEGALLY CONSOLIDATED

. . .

(3) Count III[] is an offense which claims “contributing” 

occurred in Alabama, but no proof whatsoever was presented in this 

offense, that it, in fact[,] occurred in Alabama (Fatal Variance), and such 

offense, which occurred, if at all, wholly in the State of Florida and cannot 

now be included in any Alabama Indictment; the court has no jurisdiction 

over such offense occurring in Florida. (Proof at trial showed the purchase 

and consumption of alcohol occurred in Florida, not Alabama[).]

. . .

ISSUE # 17-

COUNSEL FAILED TO MOVE FOR JUDGMENT OF ACQUITTAL

. . .

Case 1:10-cv-00067-CG-C Document 63 Filed 03/08/13 Page 14 of 57
15

So where the State[] had not offered strict proof of jurisdiction over 

the alleged offense(s), and where the evidence at trial tended to show the 

alleged offense(s), if any, actually occurred in Barrineau Park, which 

wholly lies within the State of Florida[ counsel should have moved for 

judgment of acquittal] . . . .

. . .

ISSUE # 23-

COUNSEL FAILED TO OBJECT TO OFFICER GRIFFITH’S TESTIMONY 

REGARDING JURISDICTION OVER THE ALLEGED OFFENSE(S)

(1) A Bald allegation[] that the alleged offense occurred on the 

“[] Alabama Side” of the Perdido River is not sufficient to establish the 

alleged offense(s) occurred in the State of Alabama. The River is not the 

border at that point, between Florida/Alabama, nor did Sgt. Griffith lay 

predicate for his claim, that it was the “Perdido River” in fact.

Id. at 518, 521, 522, 524, 526 & 529. 

On March 29, 2000, Charest filed written notice of appeal, id. at R. 577-581, and,

concurrent therewith, a Court of Criminal Appeals Docketing Statement in which he 

briefly described all issues to be raised on appeal, including his allegation that 

“ALABAMA HAD NO[] SUBJECT MATTER JURISDICTION (IN PERSONAM) OF 

ALLEGED OFFENSES AND PROSECUTED DEFENDANT ILLEGALLY[] IN 

ALABAMA[.]” Id. at R. 570.13

On July 6, 2001, the Alabama Supreme Court, on application for rehearing, 

entered the following memorandum opinion:

The opinion of April 13, 2001, is withdrawn and the following is 

substituted therefor.

After Pat Charest had petitioned this Court for certiorari review 

and we had granted that petition on November 16, 2000, Judge James L. 

Reid, Jr., Presiding Judge of the Baldwin [County] Circuit Court, entered 

 13 On May 25, 2000, Susan James requested leave to withdraw as counsel of record 

for Charest, id. at R. 636, and her motion was granted by the trial court on June 2, 2000, id. at R. 

637.

Case 1:10-cv-00067-CG-C Document 63 Filed 03/08/13 Page 15 of 57
16

an order (dated March 16, 2001) correcting the record in various respects. 

We have reviewed the record as corrected. We find in that record 

sufficient evidence to establish that the Baldwin County Circuit Court had 

jurisdiction over the criminal charge against the defendant Pat Charest.

The Court of Criminal Appeals, on July 24, 2000, with an 

unpublished memorandum, dismissed Charest’s appeal on the basis that 

the circuit court had not acquired subject matter jurisdiction because 

Charest had not paid the requisite filing fee or filed an approved in forma 

pauperis petition pursuant to Goldsmith v. State, 709 So.2d 1352 (Ala. 

Crim. App. 1997). . . . The judgment of the Court of Criminal Appeals is 

reversed, and this case is remanded for that court to consider the merits of 

the appeal.

Charest v. Ferrell, CA 03-0283-CB-L, Doc. 5, Exhibit C. In a published opinion released on 

April 26, 2002,14 the Alabama Court of Criminal Appeals determined that “the trial 

judge did not have the authority to strike the timely filed petition of February 6, 1998, 

and any legitimate amendments thereto; the trial judge did not have the authority to 

enlarge the two-year limitations period established by Rule 32.2(c); and the trial judge 

did not have the authority to accept the ‘consolidated’ petition filed on April 19, 1999, as

timely.” Id., Exhibit E, at 3 (citation omitted). The Alabama Court of Criminal Appeals 

delineated all claims raised by petitioner in the February 6, 1998 petition, id. at 4-6;15

noted that petitioner had raised on appeal some of the very claims raised in his 

February 6, 1998 petition (as properly amended) but also some claims not raised in the 

trial court, id. at 6; and held that “[t]hose claims that were not timely raised in his 

 14 The opinion released on April 26, 2002 was substituted for an earlier 

memorandum opinion released by the Alabama Court of Criminal Appeals on December 21, 

2001, which stated the same findings and conclusions. Compare id. at Exhibit E with id. at Exhibit 

D. 

15 The appellate court noted that one identified instance of ineffective assistance of 

counsel was petitioner’s assertion that “trial counsel failed to adequately object to and preserve 

the issue of whether the trial court had jurisdiction to hear the case because the incidents 

allegedly had occurred in Florida[.]” Id. at 5; see also id. at 6 (court noted that raised as a separate 

issue in the February 6, 1998 Rule 32 petition was Charest’s claim that “the trial court did not 

have jurisdiction to render judgment or impose sentence on him.”). 

Case 1:10-cv-00067-CG-C Document 63 Filed 03/08/13 Page 16 of 57
17

petition to the circuit court cannot now be raised on appeal[]” and “[t]hose claims that 

Charest raised in his petition, but did not assert on appeal, have been abandoned.” Id. at 

6 & 7. Indeed, the Court of Criminal Appeals found that most of the claims Charest 

asserted in his February 6, 1998 Rule 32 petition were not asserted on appeal and were, 

therefore, abandoned, including his claim that “the trial court did not have jurisdiction 

to render judgment or to impose sentence on him because the offense, if any, actually 

occurred in Florida, rather than in Alabama[,]” as well as his claim that trial counsel 

failed to object to and preserve at trial “the trial court’s alleged lack of jurisdiction over 

the case because the incidents occurred in Florida[.]” Id. at 7-8 n. 3. Accordingly, the 

appellate court remanded the matter to the trial court to address only three arguments 

raised in Charest’s appellate brief, none of which touched upon petitioner’s 

jurisdictional arguments. See id. at 9 (“That trial counsel rendered ineffective assistance 

because he should have objected to Charest’s being placed in double jeopardy for being 

indicted for sexual misconduct in addition to rape and sodomy when the sexualmisconduct charge was based on the same conduct as the rape and sodomy charges. . . . 

That trial counsel rendered ineffective assistance because he should have objected to 

Charest’s being given two consecutive life sentences for his convictions for first-degree 

rape and sodomy. . . . That appellate counsel rendered ineffective assistance by failing 

to inform him that he could have petitioned the Alabama Supreme Court for certiorari 

review of our affirmance of h[is] convictions and sentence[s].”). 

In a memorandum opinion released September 20, 2002, on return to remand, the 

Alabama Court of Criminal Appeals affirmed the trial court’s summary denial of the 

aforementioned three claims of ineffective assistance of counsel identified in the 

appellate court’s April 26, 2002 decision. Charest v. Ferrell, 03-0283-CB-L, Doc. 5, Exhibit 

Case 1:10-cv-00067-CG-C Document 63 Filed 03/08/13 Page 17 of 57
18

F, at 3 (“The record supports the circuit court’s findings that Charest’s claims either 

presented no material issue of fact or law (claims 1 and 2),16 or failed to state a claim 

(claim 3).17 Therefore, summary disposition was appropriate, and we affirm the 

judgment of the circuit court.” (footnotes added)). Charest’s application for rehearing 

was overruled without opinion on November 1, 2002, Charest v. Ferrell, 03-0283-CB-L, 

Doc. 5, Exhibit I, and his petition for writ of certiorari was denied without opinion by 

the Alabama Supreme Court on February 21, 2003, Charest v. Ferrell, 03-0283-CB-L, Doc. 

5, Exhibit L.

On May 7, 2003, Charest filed a petition seeking habeas corpus relief in this Court 

and therein identified the following claims: “(1) the Alabama Court of Criminal Appeals 

erred in determining that petitioner was barred in raising the ineffective assistance of 

counsel claims presented in his amended Rule 32 petition; and (2) trial counsel acted 

ineffectively by failing to challenge the Alabama courts’ standard that testimony of the 

victim proves forcible compulsion.” Compare Charest v. Ferrell, 03-0283-CB-L, Doc. 14, at 

8 with Doc. 1, at 22 (petition signed by Charest’s attorney, Roger C. Appell, Esquire, on 

May 7, 2003). With respect to the first claim, counsel for Charest specifically contended 

that the Alabama Court of Criminal Appeals improperly determined that the following 

claims of ineffective assistance of counsel were “novel” claims that did not relate back 

 16 With respect to the first identified claim, the trial court determined that Charest 

failed to establish any prejudice since he was not convicted of sexual misconduct and, as for the 

second identified claim, since petitioner’s convictions were for two acts requiring different 

elements it was within the court’s discretion to sentence him to consecutive sentences. Id. at 2; 

see also id. (“’No objection to the sentence would have guaranteed Petitioner a different sentence, 

nor was the objection required to preserve the issue for appeal.’”).

17 With respect to the third identified claim, the trial court determined that 

“’Petitioner failed to provide adequate evidence to establish a likelihood of success on the 

petition [for writ of certiorari].’” Id. at 2

Case 1:10-cv-00067-CG-C Document 63 Filed 03/08/13 Page 18 of 57
19

to petitioner’s February 6, 1998 Rule 32 petition, as opposed to properly determining 

that these claims were mere refinements—or more definite statements—of the 

ineffective assistance of trial and appellate claims raised in the February 6, 1998 Rule 32 

petition:

1. That trial counsel rendered ineffective assistance for failing 

to move for a judgment of acquittal.

. . .

3. That trial counsel rendered ineffective assistance for failing 

to request jury charges as to lesser included offenses of the offense 

charged.

4. That trial counsel rendered ineffective assistance because he 

failed to file a motion for a new trial challenging the sufficiency of 

the evidence

5. That appellate counsel rendered ineffective assistance 

because he failed to argue the sufficiency of the evidence on appeal.

Charest v. Ferrell, 03-0283-CB-L, Doc. 1, at 7-8 (quotation marks omitted); compare id. with 

id., Doc. 5, Exhibit K, at 5 (same claims identified); see id., Doc. 5, Exhibit J, at 11-12 (“The 

decision of September 20, 2002, is the result of the limitations placed on the trial court 

by the decision of April 26, 2002, that limited the ineffective assistance of counsel issues 

the trial court could consider. The ineffective assistance of counsel claims that the 

Appeals Court held in the April 26, 2002, decision, pages 6-7, n.2, to be time barred are 

the primary claims on which Charest bases his prayer for relief under Rule 32. This 

Court deferred review of this holding pending the Appeals Court decision following 

remand. That time has now come. Certiorari under Rule 39(a)(1)(D), Ala.R.App.P.[,] is 

due to be granted as to the holding that the claims listed at Exhibit A, pages 6-7, n.2, are 

time barred because such holding is in conflict with prior decisions of this Court and 

Case 1:10-cv-00067-CG-C Document 63 Filed 03/08/13 Page 19 of 57
20

the Appeals Court and also with several Alabama procedural rules.”).

18

On February 14, 2005, this Court dismissed Charest’s federal habeas petition, 

finding same time-barred pursuant to 28 U.S.C. § 2244(d)(1)(A). Compare Charest v. 

Ferrell, 03-0283-CB-L, Docs. 16 & 17 with id., Doc. 14. In an unpublished per curiam 

opinion filed on November 25, 2005, a panel of the Eleventh Circuit Court of Appeals 

affirmed this Court’s dismissal of Charest’s federal habeas corpus petition; this opinion 

was issued as mandate on December 27, 2005. See id. at Doc. 25.

According to the allegations of his complaint, Charest filed his second Rule 32 

petition in the Baldwin County Circuit Court on February 2, 2004, that is, before this 

Court’s ruling on his first federal habeas corpus petition, and therein raised the 

following issues: (1) defective indictment; and (2) lack of jurisdiction. (Doc. 1, at 4.) An 

evidentiary hearing was held on that petition over the course of two days, August 4, 

200519 and August 10, 2005.20 (See Doc. 9, Exhibit G, at 2.) As noted by the Alabama 

 18 Petitioner made no argument in his first federal habeas petition, or in any 

pleadings filed with Alabama’s appellate courts, that the Alabama Court of Criminal Appeals 

improperly determined in its April 26, 2002 decision that he had abandoned certain claims 

asserted in his February 6, 1998 Rule 32 petition that he failed to assert on appeal, see id., same 

including the above-identified jurisdictional issues. See id.

19 On this date, the trial judge indicated his willingness to dismiss or set aside

Charest’s misdemeanor conviction, on the basis that it was void because the circuit court lacked 

jurisdiction. (See Doc. 62, Exhibit 1, August 4, 2005 Hearing Transcript, at 13.) The undersigned 

appreciates from the transcript of this hearing, and the transcript of the hearing held by the trial 

court on May 25, 2004 (see Doc. 62, Exhibit 1, May 25, 2004 Hearing Transcript), that the trial 

court did not have jurisdiction of the misdemeanor charge back in 1995 because the offending 

conduct occurred in 1994 prior to a statutory change and at such time misdemeanor charges 

could not be “brought up” to circuit court with felony charges and/or the specific misdemeanor 

charge of contributing to the delinquency of a minor was within the sole jurisdiction of the 

juvenile court and had first to be heard in that court before any de novo appeal in the circuit 

court. (Compare id., August 4, 2005 Hearing, at 3-20 with id., Exhibit 5, Vol. I, May 25, 2004 

Hearing, at 3-43.) 

Interestingly, during the August 4, 2005 hearing, though petitioner argued halfheartedly that the misdemeanor contributing to the delinquency of a minor charge prejudiced 

him with respect to his felony convictions (see Doc. 62, Exhibit 1, August 4, 2005 Tr. at 8-17), his 

Case 1:10-cv-00067-CG-C Document 63 Filed 03/08/13 Page 20 of 57
21

 

real focus was to secure some type of agreement on resentencing so he could have some hope of 

being released on parole (compare id. at 17-20 with id. at 5 & 9-10). 

20 The following exchange occurred during the hearing on August 10, 2005:

MR. MITCHELL: What’s pending here before the Court is the Rule 32 

of Mr. Charest wherein you granted his relief as to Count Three of the indictment 

and vacated that order of conviction and sentence.

THE COURT: I orally did that but I don’t know if we entered an order.

MR. MITCHELL: And further relief is being agreed upon and that 

there is a petitioner’s nunc pro tunc motion asking the Court to run the sentences 

that were imposed in Counts One and Two which were life sentences to run 

concurrently and that Mr. Charest agrees to accept that from the Court and, in 

return, Mr. Charest is basically closing the door on his Rule 32 petitions but for 

the right to reserve the issue of subject-matter jurisdiction as it applies to the 

location of the alleged offense as to whether it was in Alabama or whether it was 

in Florida.

MR. VOLLMER: And on the record, I think it’s important for Mr. 

Charest to indicate this was not a deal based on coercion.

THE DEFENDANT: No, sir. . . . Never would I imply that. . . . I think 

you’ve been more than reasonable and fair with me.

. . .

THE COURT: Let’s do this order, . . . I’ll do the wording and 

introductory wording but No. 1, Count Three, upon review of all the evidence 

that’s been presented, the Court is of the opinion that the Count Three charge, 

that there was not jurisdiction of that count . . . [for] a [circuit] court to have 

heard it, that that properly lied in either district or juvenile court so there was not 

jurisdiction. . . . That it properly lied in juvenile court and not in circuit court and 

so, therefore, the conviction of Count Three . . . [c]ontributing to the delinquency 

of a minor is voided and that count is dismissed for this court not having subjectmatter jurisdiction, that because it was a void judgment, it’s the opinion of the 

Court that . . . jeopardy never attached and that it was within the purview of the 

juvenile court and this court has no jurisdiction. 

. . . 

No. 2 is that upon the agreement that the issues that were pending before 

this court under .61, that an agreement was reached in which the State would not 

oppose . . . the Defendant’s sentences in Counts One and Two . . . to be modified 

to run concurrent as opposed to them running consecutively, and that in return, 

Mr. Charest agrees to waive all pending Rule 61, all pending claims for relief 

with exception of his issue of whether the court had subject-matter jurisdiction 

over the actions complained of in that Mr. Charest alleges there is an issue as to 

whether it actually occurred in the State of Alabama or in the State of Florida and 

Case 1:10-cv-00067-CG-C Document 63 Filed 03/08/13 Page 21 of 57
22

Court of Criminal Appeals, the record on appeal revealed that “an agreement was 

entered between Charest and the State in which Charest was granted relief on some 

claims, waived other claims, and was specifically granted the right to pursue in a later 

 

he does have [the] right to pursue that claim if it’s later determined . . . any 

charges should have been brought in Florida as opposed to Alabama, that as to 

that subject-matter jurisdiction issue, he retains the right to pursue that, but all 

other claims he is hereby withdrawing and waiving any claims including 

whatever . . . is [in] his writ of prohibition[.] That deals with Count Three?

THE DEFENDANT: Yes, sir. . . .

THE COURT: And that based on the Court granting his motion 

dismissing Count Three, that issue becomes moot, does it not?

THE DEFENDANT: I believe that we would reserve that for the 

Alabama Supreme Court but I would waive the mandamus.

. . .

THE COURT: I want you to hear what I’m saying. As far as Counts One 

and Two, you have been convicted of that. I take the position you committed 

those crimes.

THE DEFENDANT: Okay.

THE COURT: I want a finality to everything about your case with 

exception of whether you should face those charges in Florida or whether you 

properly faced them and have been convicted in Alabama. All other issues, I 

understand, are done away with.

THE DEFENDANT: In this court, I will not seek any appellate review. 

Everything on your table is dead as far as I’m concerned.

THE COURT: And so you’re satisfied with Mr. Mitchell’s advice to you?

THE DEFENDANT: I wouldn’t have hired him otherwise.

THE COURT: Okay. And . . . you are freely and voluntarily agreeing to 

this, right?

THE DEFENDANT: I understand. Yes, sir. Yes, sir.

THE COURT: So the order will read that . . . Counts One and Two are 

hereby modified to run concurrent and all other issues are withdrawn or waived.

(Doc. 62, Exhibit 1, August 10, 2005 Hearing Tr., at 25-26, 29, 30-31, 31 & 32-33.) 

Case 1:10-cv-00067-CG-C Document 63 Filed 03/08/13 Page 22 of 57
23

petition his claim that Alabama lacked jurisdiction to render judgment in the case 

involving the sexual assault of a 15-year-old girl ‘if he can later determine that . . . any 

charges should have been brought in Florida as opposed to Alabama.’” (Doc. 9, Exhibit 

G, at 2 (citation omitted).) Indeed, on August 12, 2005, Circuit Judge Lang Floyd entered 

the following order:

This matter came before this Court on a Motion for Relief from Conviction 

and/or Sentence filed by the Defendant. After hearing argument from the 

Defendant and the State, the Court took the matter under submission. 

While under submission the Court was advised that a compromise was 

reached, subject to the approval of the Court. After being advised of the 

agreement, the Court does accept said agreement. Therefore, it is hereby 

ORDERED:

1. The sentence on Count 3 is vacated and said Count is DISMISSED 

for lack of subject matter jurisdiction.

2. The sentence in Count 2 is amended to run CONCURRENT with 

the sentence in Count 1.

3. Defendant shall be allowed to continue to pursue his claim that 

Alabama did not have jurisdiction to prosecute Counts 1 & 2 in that 

the events made the basis of the charges occurred in the State of 

Florida. As to all other claims the Defendant withdraws [them] and 

stipulates that those claims are DISMISSED. 

(See, e.g., Doc. 59, Exhibit A; compare id. with Doc. 13, Exhibit 1, ORDER (footnote 

added).) Consistent with his statement at the August 10, 2005 hearing that he would 

seek no appellate review (see Doc. 62, August 10, 2005 Hearing Tr., at 33), petitioner did 

not appeal the trial court’s order dated August 12, 2005 (see Doc. 62, Exhibit 1). All the 

record reveals that happened between the date of the trial court’s August 12, 2005, 

order and what Charest describes as his third Rule 32 petition filed on September 20, 

2006 (Doc. 1, at 5), is that the trial court granted petitioner’s request that the August 4 

and 10, 2005 transcripts be “produced” (see Doc. 62, Exhibit 1, Supplemental Vol. II, at 

65-68) and the Alabama Supreme Court struck Charest’s petition for writ of mandamus 

Case 1:10-cv-00067-CG-C Document 63 Filed 03/08/13 Page 23 of 57
24

on October 20, 2005 (id. at 38), consistent with his evidentiary hearing concession that he 

was waiving “the mandamus [petition].” (Doc. 62, Exhibit 1, August 10, 2005 Tr. at 31).21

Charest, however, did not raise in his third Rule 32 petition, filed September 20, 

2006 (see Doc. 1, at 5; compare id. with Doc. 62, Exhibit 1, at 33 (“[Charest,] upon finding 

two (2) dispositive issues filed, on September 20th[,] 2006 his Third Rule 32 

petition[.]”)), the identified jurisdictional issue(s) reflected in the August 12, 2005 order; 

instead, he raised other alleged “jurisdictional defects[,]” namely: “1) That both counts 

of his indictment were impermissibly amended when the jury was charged that 

intentional conduct was an element of each offence. 2) That the injection of testimony 

regarding the victim’s low mental capacity created a material variance between the 

indictment—that charged that the offenses were committed pursuant to forcible 

compulsion—and the proof at trial, or in the alternative, was an impermissible 

constructive amendment to the indictment.” (See Doc. 9, Exhibit F, at 1-2; compare id. 

with Doc. 1, at 5 (identifying as the claims raised in this petition, the following: “1) 

Amendment of Indictment; 2) Constructive Amendment And Fatal Variance”).)22 In an 

unpublished memorandum opinion released on August 22, 2008, the Alabama Court of 

 21 On August 30, 2005, Thayer C. Lindauer, Esquire, penned a letter to Daniel P. 

Mitchell, Esquire—the attorney who represented Charest on August 4 & 10, 2005—same 

reading, in relevant part, as follows: “When Greg [Spies] completes his work and we have had a 

preliminary review of the work prior to Greg preparing the formal written report, maps and 

photos etc., and presuming that the results of the survey are favorable to Pat, Pat and I want 

you to represent Pat again in the proceedings in connection with presentation of the survey and 

in determining specifically the best course and options available to Pat depending upon the 

survey results.” (Doc. 62, Exhibit 1, Supplemental Vol. II, at 52.)

22 Charest amended his third Rule 32 petition on January 29, 2007, to assert the 

following additional alleged jurisdictional impediment: “3) The United States Supreme Court’s 

opinion in Cunningham v. California renders the trial court’s imposition of sentences of life in 

prison illegal, because under Cunningham, it is impermissible for a trial judge to impose a 

sentence that is based upon facts not established beyond a reasonable doubt by a jury.” (Doc. 9, 

Exhibit F, at 2.) 

Case 1:10-cv-00067-CG-C Document 63 Filed 03/08/13 Page 24 of 57
25

Criminal Appeals determined that because none of petitioner’s claims raised in his third 

Rule 32 petition, as amended, were, in fact, jurisdictional claims, they were procedurally 

barred, time barred, and due to be denied because they were raised in a “successive 

petition[.]” (See id. at 4-6.) Thus, “the judgment of the trial court” summarily dismissing 

Charest’s Rule 32 petition was affirmed. (Id. at 6; see also id. at 4-5.)23

On November 6, 2009, the Alabama Court of Criminal Appeals released its 

unpublished memorandum decision directed to Charest’s most recent state collateral 

attack on his convictions and sentences, his fourth such attack on his convictions. (See 

Doc. 9, Exhibit G.) This decision reads, in relevant part, as follows:

On October 15, 2007, Charest filed in the circuit court what he 

labeled as a Rule 60(b) Motion. This motion asserted that subject matter 

jurisdiction of his sexual assault charge lay in Florida. The circuit court 

treated this motion as a Rule 32 petition. The State did not file a written 

response. On October 2, 2008, the circuit court conducted a hearing on 

Charest’s claim that Alabama did not have jurisdiction over the offense 

involving his sexual assault of a 15-year-old girl. . . . At the hearing 

Charest called as witnesses Gregory C. Spies, a professional-licensed 

surveyor to testify regarding the boundary between Alabama and Florida, 

and Lawrence Griffith, an investigator involved in the investigation of 

Charest’s crimes. The State argued that, based on the evidence, the State 

was entitled to a judgment as a matter of law. After hearing all the 

evidence, the circuit court made the following oral findings on the record 

denying Charest’s claim on the merits.

THE COURT: Based on the evidence that’s been 

presented to me at this point in time, taking the defendant or 

the petitioner’s evidence completely on its own face, there 

has been zero testimony presented that the state of Florida 

claims any of that bank.

There has been no testimony that at the time of the 

offense that the defendant has been convicted of that the 

 23 It is apparent from the complaint filed in this Court that Charest did not seek 

rehearing from the Alabama Court of Criminal Appeals or petition the Alabama Supreme Court 

for certiorari relief with respect to this third Rule 32 petition, petitioner clearly stating that the 

“date of result” of this collateral state petition was August 22, 2008. (Doc. 1, at 6.)

Case 1:10-cv-00067-CG-C Document 63 Filed 03/08/13 Page 25 of 57
26

actual events occurred within the area that . . . Mr. Spies 

testified to even if that is where the property line would be, 

whether it was in that area or not. There was testimony by 

Sergeant Griffith that it could have been but that’s 

speculative at best.

The burden of proof is on the defendant in this type 

of motion in order to establish that it did occur within that 

area and not some area further to the . . . west, that would 

have been outside the line.

All that being said, even if all of that is true, I don’t 

find that there is evidence sufficient enough, taken 

completely in the light [most] favorable to the defendant, to 

establish this happened outside the property lines of the 

state of Alabama and, therefore, it would have been in 

Baldwin County because of this particular area. 

I think the most compelling thing is that the property 

line, to move that much, is more than likely from a natural 

erosion and accretion which would allow the property line 

to move with the flow of the water.

I think if . . . we’d had anybody from the state of 

Florida testify, they would have testified from the 

Department of Lands [o]r Conservation or whatever, that 

both states have always recognized at best the edge of the 

water as being to Florida and, if anything, I would say that 

Alabama’s probably accrued ownership of that property, not 

the state of Florida. The state of Florida can have the bridge 

but that’s not where it occurred.

I’m gonna grant the State’s motion.

A November 13, 2008[] entry on the case-action summary noted that the 

petition was denied on October 29, 2008. We have no explanation for the 

delay in entering the October 2, 200[8] ruling.

Charest appeals from the circuit court’s ruling claiming, as best we 

can discern, that: 1) he lacked the necessary legal materials and exhibits to 

prove his claim; 2) he had a constitutional right to make an opening 

statement before the October 2, 2008[] hearing began; and 3) the circuit 

court’s judgment was made in error and the circuit court did not comply 

with Rule 32.9(d) by making written findings of fact in support of its 

ruling.

I.

Case 1:10-cv-00067-CG-C Document 63 Filed 03/08/13 Page 26 of 57
27

Charest claims that he lacked the necessary legal materials and 

exhibits at his hearing to prove his claim.

This claim was not raised during the October 2, 2008[] hearing.24 

On October 27, 2008, Charest filed a Motion for Reconsideration Based 

Upon Denial of Access to Courts By Illegal Seizure of Evidentiary 

Documents. In the motion[,] Charest set forth legal documents that he 

alleged had been seized and lost by various law enforcement officials. We 

note that Charest was represented by counsel at this hearing but that 

Charest was allowed to interject his thoughts and concerns throughout the

hearing. Charest did not object regarding an alleged deprivation of 

evidence.

Charest’s claim is the equivalent to a motion for a new trial. 

Because Charest did not raise this argument either before or during the 

hearing, his objection in the post-hearing motion was not timely and did 

not properly preserve this argument for our review.

II.

Charest claims that he was denied what he terms as his 

“constitutional right” to make an opening statement before the October 2, 

2008[] hearing commenced. Before the hearing began, Charest stated that 

he wanted to make an opening statement. The circuit court responded:

I don’t want to hear opening statements. Let’s get to the 

evidence. I know exactly what we’re dealing with [in this] 

case. We’re dealing with the jurisdictional issue of where [] 

the [] offense[s] you were convicted [of] . . . occurred, 

whether it occurred within the State of Alabama or whether 

it occurred outside the State of Alabama.

Charest did not object to the circuit court’s refusal to allow opening 

statements. Because Charest did not challenge the circuit court’s refusal to 

hear opening statements, he has waived the issue he now argues on 

appeal.

Moreover,

The purpose of an opening statement is merely to advise a 

jury of the issues involved in the case before them. It is a 

well established rule that the scope and latitude of the 

 24 “Although Charest referenced this claim in his notice of appeal, that was 

insufficient to preserve it for appellate review.” (Doc. 9, Exhibit G, at 5 n.3.) 

Case 1:10-cv-00067-CG-C Document 63 Filed 03/08/13 Page 27 of 57
28

opening statement are matters that rest within the sound 

discretion of the trial judge and his ruling should not be 

disturbed on appeal unless an abuse is shown.

Here, there was no jury and the circuit court clearly understood the claim 

that was the subject of the hearing. Therefore, Charest was not entitled to 

make an opening statement.

III.

Charest claims that the circuit court’s judgment was made in error 

and that the circuit court did not make the necessary written findings of 

fact to support its ruling as directed by Rule 32.9(d).

A.

We will not reverse a trial court’s ruling on a Rule 32 petition 

absent an abuse of discretion by the trial court. The record supports the 

circuit court’s ruling that Charest failed to prove his claim that the alleged 

crime took place in Florida. Therefore, we cannot find that the circuit court 

abused its discretion by denying relief on Charest’s claim.

Moreover, there is no merit to this claim. As best we can discern, 

Charest contends that the crime began in Alabama and concluded in 

Florida. Under the doctrine of dual sovereignty, both Alabama and 

Florida had jurisdiction to prosecute Charest.

The States are no less sovereign with respect to each other 

than they are with respect to the Federal Government. Their 

powers to undertake criminal prosecutions derive from 

separate and independent sources of power and authority 

originally belonging to them before admission to the Union 

and preserved to them by the Tenth Amendment. The States 

are equal to each other in power, dignity and authority, each 

competent to exert that residuum of sovereignty not 

delegated to the United States by the Constitution itself. 

Thus, each has the power, inherent in any sovereign, 

independently to determine what shall be an offense against 

its authority and to punish such offenses, and in doing so 

each is exercising its own sovereignty, not that of the other.

Additionally, this is a question of personal jurisdiction. 

Jurisdiction over a defendant requires both personal and subject 

matter jurisdiction. Personal jurisdiction is attained by a 

defendant’s appearance before the court. Subject-matter jurisdiction 

concerns a court’s power to decide certain types of cases. Matters of 

personal jurisdiction are waivable and, as such, do not implicate 

Case 1:10-cv-00067-CG-C Document 63 Filed 03/08/13 Page 28 of 57
29

the subject matter jurisdiction of the trial court. Therefore, this 

claim would have been subject to various procedural bars had they 

been pleaded.

B.

As best that we can discern, Charest’s claim that the circuit 

court failed to enter written findings of fact is presented for the first 

time on appeal; therefore, it is not preserved for our review. 

Moreover, Rule 32.9(d) states: The court shall make specific 

findings of fact relating to each material issue of fact presented. We 

see no prohibition against oral findings of fact. Written findings of 

fact are necessary only when the circuit court rules after the 

hearing.

Based on the above, the circuit court’s denial of Charest’s

Rule 32 petition is affirmed.

(Id. at 2-8 (most internal citations and quotation marks omitted; footnote 2 omitted).)

According to Charest, his application for rehearing was overruled on December 4, 2009 

and his petition for writ of certiorari was denied by the Alabama Supreme Court on 

January 15, 2010. Ex parte Charest, 76 So.3d 876 (Ala. 2010) (table).

On January 23, 2010, Charest filed an application for leave to file a second or 

successive habeas corpus petition pursuant to 28 U.S.C. § 2244(b) in the Eleventh Circuit 

Court of Appeals. (Doc. 9, Exhibit H, at 14.) Before receiving an answer from the 

Eleventh Circuit Court of Appeals on his application, however, Charest filed the instant 

habeas corpus petition in this Court on February 5, 2010 (Doc. 1, at 20 (petition signed 

on this date and given to prison authorities for mailing)), and therein raises the 

following claims: (1) “whether vel non [he] had a Protected First Amendment 

Constitutional right to redress his grievances—moreover a substantive right to have 

effectively accessed the courts and utilized his legal work product (i.e., “exhibits, trial 

transcript excerpts, maps, charts, deeds, survey notes and other pertinent memoranda—collected 

Case 1:10-cv-00067-CG-C Document 63 Filed 03/08/13 Page 29 of 57
30

by private investigators”) at the October 2nd 2008 evidentiary hearing under Alabama 

rules of criminal procedures, Rules 32.1(b), 32.3 absent the State impediment suffered 

from two Baldwin County jail agents—illegal seizure/denial of evidentiary transcripts, 

and documents, and exhibits on September 30th 2008 as to Charest’s factual and actually 

innocence in light of being RESENTENCED due to newly discovered evidence 

scientifically—exonerating Charest of guilt of any crime committed in the State of 

Alabama. Violation of 1st 5th and 14th Amendments[;]” (2) whether his constitutional 

right to confrontation, in accordance with the Sixth Amendment, was violated at the 

October 2, 2008 evidentiary hearing when Judge Langford Floyd denied petitioner 

ample opportunity to properly cross-examine and impeach Sergeant Griffith regarding 

his trial testimony in 1995;25 and (3) whether the trial court committed reversible error 

by failing to make specific findings of fact and failing to enter a written order as 

mandated by Alabama law.26 (Doc. 1, at 7-9.) 

On February 24, 2010, a panel of the Eleventh Circuit Court of Appeals denied 

Charest’s application for leave to file a second or successive petition. (Doc. 9, Exhibit A.)

In his application, Charest indicates that he wishes to raise three 

claims in a second or successive § 2254 petition. First, he claims that he is 

actually innocent because “newly discovered evidence” establishes that 

the Alabama trial court lacked subject-matter jurisdiction over his case. 

Second, he asserts that his Sixth Amendment right to confront witnesses 

was violated at a hearing in October 2008 because he was not allowed to 

make an opening statement or cross-examine the state’s “key witness.”

Finally, Charest claims that the State post-conviction court “committed 

reversible error” by granting judgment as a matter of law to the state in 

 25 The undersigned simply notes that Sergeant Lawrence Griffith was petitioner’s 

witness at the October 2, 2008 evidentiary hearing. (Doc. 62, Exhibit 5, Vol. IV, October 2, 2008 

Transcript, at 34.)

26 According to Charest, the evidentiary proof he offered, or attempted to offer, 

shows that Alabama lacked subject-matter jurisdiction in that said offenses, if any, occurred in 

Florida. (Id. at 8.)

Case 1:10-cv-00067-CG-C Document 63 Filed 03/08/13 Page 30 of 57
31

his Ala.R.Crim.P. 32 proceedings without making required findings of fact 

to support[] that ruling. Charest asserts that his first two claims rely upon 

newly discovered evidence, but indicates as to his third claim only that it 

does not rely on a new rule of law. Specifically, he claims that a land 

survey, conducted after his conviction, proves that his alleged criminal 

conduct took place in Florida.

Charest’s claims do not meet the statutory criteria. First, although 

he asserts that his first two claims rely on newly discovered evidence, the 

land survey does not prove that he is factually innocent of the rape and 

sodomy charges underlying his conviction[s] and sentence[s], and at most, 

relates solely to his potential legal innocence. See 28 U.S.C. § 2244(b)(2)(B); 

see also In re Boshears, 110 F.3d 1538, 1541 (11th Cir. 1997) (holding that the 

applicant must show that the newly discovered evidence established that 

he was actually innocent of the offense). Moreover, Charest does not 

assert that his third claim relies on newly discovered evidence or a new 

rule of law, and as such, it also fails to satisfy the statutory criteria. See 28 

U.S.C. § 2244(b)(2)(A), (B). 

Accordingly, because Charest has failed to make a prima facie

showing of the existence of either of the grounds set forth in § 2244(b)(2), 

his application for leave to file a second or successive petition is hereby 

DENIED.

(Id. at 2-3.) 

And while Charest argued in his habeas petition filed in this Court on February 

5, 2010, that his new sentencing date of August 10, 2005 restarted AEDPA’s one-year 

limitations period (Doc. 1, at 12), relying on the Eleventh Circuit’s February 24, 2010 

opinion, this Court entered its final decision, on June 8, 2010, finding Charest’s petition 

successive and dismissing same based on petitioner’s failure to comply with 28 U.S.C. § 

2244(b)(3)(A) (Docs. 14-15; see also Doc. 10). Charest appealed this Court’s decision and, 

as previously alluded to, a panel of the Eleventh Circuit Court of Appeals issued an 

unpublished decision on April 14, 2011, vacating this Court’s opinion and remanding 

this cause to this Court for further consideration of Charest’s § 2254 petition. (Doc. 29, at 

Case 1:10-cv-00067-CG-C Document 63 Filed 03/08/13 Page 31 of 57
32

2.)27

Several months after this Court denied Charest’s § 2244(b) 

application, the Supreme Court reversed this Court, in a separate case, for 

treating a § 2254 petition as successive when the petitioner had been 

resentenced prior to filing his second habeas petition. Magwood v. 

Patterson, U.S. , 130 S.Ct. 2788 (2010). The Supreme Court held that 

where “there is a new judgment intervening between the two habeas 

petitions, an application challenging the resulting new judgment is not 

second or successive at all.” Magwood, 130 S.Ct. at 2802 (quotation marks 

and citation omitted). The Court reasoned that “[a]lthough Congress did 

not define the phrase ‘second or successive,’ as used to modify ‘habeas 

corpus application under section 2254,’ §§ 2241(b)(1)-(2), it is well settled 

that the phrase does not simply ‘refe[r] to all § 2254 applications filed 

second or successively in time.’” Id. at 2796 (quoting Panetti v. 

Quarterman, 551 U.S. 930, 994, 127 S.Ct. 2842, 2853 (2007) (alteration in 

original)). Rather, “both § 2254(b)’s text and the relief it provides indicate 

that the phrase ‘second or successive’ must be interpreted with respect to 

the judgment challenged.” Id. at 2797.

In this case, Charest obtained certain relief with respect to the 

relevant sentence pursuant to an August 12, 2005, order of the Circuit 

Court of Baldwin County, Alabama, which order read in relevant part as 

follows:

“2. The sentence in Count 2 is amended to run 

CONCURRENT with the sentence in count 1.”

See Order attached as Exh. 7 to Docket 13 (“Traverse to State’s Answer to 

Charest’s ‘New Habeas Corpus’ Resulting from a Re-sentencing 

‘Judgment.’”’). The effect of this August 12, 2005, order was to provide 

that the two consecutive life sentences which had previously been 

imposed with respect to counts 1 and 2 were amended so that the two life 

sentences would run concurrently.

Charest argued in the court below that the August 12, 2005, order 

constituted a new sentence, resulting in a new judgment. Although noting 

the argument, the court below declined to address it . . . and proceeded to 

dismiss the instant habeas corpus petition for lack of jurisdiction as a 

second or successive petition, relying upon the February 24, 2010, order of 

this court rejecting Charest’s application for leave to file a second or 

successive petition. The problem arises because, after this court’s February 

24, 2010, order, the Supreme Court issued its opinion in Magwood v. 

 27 The Eleventh Circuit’s decision was issued as mandate on June 24, 2011. (Doc. 

31.)

Case 1:10-cv-00067-CG-C Document 63 Filed 03/08/13 Page 32 of 57
33

Patterson, U.S. , 130 S.Ct. 2788 (2010).28 As noted above, the Court in 

Magwood held that where there is a new judgment intervening between 

the two habeas petitions, an application challenging the resulting new 

judgment is not second or successive at all. In this case, it is clear that 

Charest’s initial federal habeas corpus petition challenged his original 

sentence, without consideration of the August 12, 2005, amendment 

thereto. Although Charest presented to the district court the basics of the 

argument to which Magwood has relevance, the district court did not 

address the argument.

We prefer for the district court to address in the first instance the 

significance for this case of the Supreme Court’s decision in Magwood. On 

remand, the district court should address, inter alia, the following issues:

(1) whether the August 12, 2005, Order of the Circuit Court of Baldwin 

County, Alabama, constitutes a “new judgment” as contemplated by the 

Supreme Court in Magwood; (2) if so, whether Charest is entitled to assert 

in the instant habeas not only challenges to his sentence[s], but also to his 

underlying conviction[s]; and (3) if there is no bar to Charest’s challenge 

to his underlying conviction[s] pursuant to 28 U.S.C. § 2244(b), is there 

nevertheless a bar pursuant to the abuse of the writ doctrine.29 The second 

issue was expressly not addressed by the Supreme Court in Magwood. 

See id. at 2802-03. But see Johnson v. United States, 623 F.3d 41 (2d Cir. 

2010). Also, the third issue was apparently also left open by Magwood. 

See Magwood, 130 S.Ct. at 2803 (Breyer, J., concurring). 

(Id. at 4-7 (one footnote omitted and one footnote added).) As previously indicated, 

while this opinion will focus on the issues highlighted by the Eleventh Circuit panel in 

its decision, the undersigned will also prominently address the time-bar issue since this 

issue also has been completely briefed by the parties (see Docs. 50, 57 & 59). 

CONCLUSIONS OF LAW

A. Whether the Baldwin County Circuit Court’s Order of August 12, 2005 

Constitutes a New Judgment. 

 28 It need be noted that this Court’s final order and judgment dismissing Charest’s 

§ 2254 petition for lack of jurisdiction as a second or successive petition was entered on the 

docket June 8, 2010 (Docs. 14-15), a little over two weeks before the decision in Magwood v. 

Patterson, see id. (decided June 24, 2010).

29 “On remand, the district court should also address any relevant time bars or 

procedural bars.” (Doc. 29, at 7 n.3.)

Case 1:10-cv-00067-CG-C Document 63 Filed 03/08/13 Page 33 of 57
34

In Magwood v. Patterson, U.S. , 130 S.Ct. 2788, 177 L.Ed.2d 592 (2010), the 

Supreme Court tackled the thorny question of whether the AEDPA’s restriction on 

“second or successive” habeas corpus applications applied to a petitioner who had 

already filed a § 2254 petition—as clearly has Charest—attacking his original judgment 

of conviction but who then files a second federal habeas application, pursuant to § 2254, 

attacking an intervening judgment arising as the result of resentencing. See id. at , 130 

S.Ct. at 2795-2796. The Court reasoned that because a petitioner is seeking the 

invalidation of a state-court judgment, as specifically referenced in § 2254(b),

30 “the 

phrase ‘second or successive’ must be interpreted with respect to the judgment 

challenged.” Id. at , 130 S.Ct. at 2797.31 The Court concluded its analysis by adopting 

the rule that where “there is a new judgment intervening between the two habeas 

petitions, an application challenging the resulting new judgment is not second or 

successive at all.” Id. at , 130 S.Ct. at 2802 (internal citation and quotation marks 

omitted); see id. at , 130 S.Ct. at 2800 (“[Burton v. Stewart, 549 U.S. 147, 127 S.Ct. 793, 

166 L.Ed.2d 628 (2007)] confirms that the existence of a new judgment is dispositive.”).

Thus, the undersigned turns to a consideration of whether the Baldwin County 

Circuit Court’s August 12, 2005 order constitutes a new judgment. In this regard, the 

undersigned notes that the Eleventh Circuit has made clear, in following Burton, supra, 

that “the writ and AEDPA . . . are specifically focused on the judgment which holds the 

petitioner in confinement.” Ferreira v. Secretary, Dept. of Corrections, 494 F.3d 1286, 1293 

 30 See 28 U.S.C. § 2254(b)(1) (“An application for a writ of habeas corpus on behalf 

of a person in custody pursuant to the judgment of a State court . . . .”).

31 The Supreme Court held that the phrase “second or successive” modifies the 

word “application” and, therefore, applies to entire habeas petitions as opposed to individual 

claims in those petitions/applications. See id. at , 130 S.Ct. at 2798-2799.

Case 1:10-cv-00067-CG-C Document 63 Filed 03/08/13 Page 34 of 57
35

(11th Cir. 2007), cert. denied sub nom. McNeil v. Ferreira, 555 U.S. 1149, 129 S.Ct. 1033, 173 

L.Ed.2d 315 (2009). “Because Burton reaffirmed that a ‘judgment’ means conviction and 

sentence, we concluded [in Ferreira II] that the ‘judgment’ to which AEDPA refers is the 

‘underlying conviction and []the most recent sentence that authorizes the petitioner’s 

current detention.’” Murphy v. United States, 634 F.3d 1303, 1311 (11th Cir. 2011) (citation 

omitted; emphasis in original); see also id. (“[W]e reasoned in Ferreira II that: . . . a 

judgment is defined as both the conviction and the sentence,” and, therefore, “when a 

defendant is resentenced, the defendant becomes confined under a new judgment[.]”). 

There can be no question but that on August 12, 2005, Charest was not only 

resentenced to concurrent life terms with respect to his unaltered and underlying firstdegree rape and first-degree sodomy felony convictions but, as well, his underlying 

misdemeanor conviction and sentence were voided based upon a finding that the 

Circuit Court of Baldwin County, Alabama lacked jurisdiction to hear that charge back 

in 1995. Moreover, that order also reflects that Charest would be allowed to continue to 

pursue his claim that Alabama did not have jurisdiction to prosecute him for firstdegree rape and first-degree sodomy in that the events made the basis of the charges 

occurred in the State of Florida. This last provision is, of course, merely a reflection of 

the requirements of Alabama post-conviction law. Compare Ala.R.Crim.P. 32.1(b) 

(“Subject to the limitations of Rule 32.2, any defendant who has been convicted of a 

criminal offense may institute a proceeding in the court of original conviction to secure 

appropriate relief on the ground that . . . [t]he court was without jurisdiction to render 

judgment or to impose sentence.”) with Ala.R.Crim.P. 32.2(a)(3) (“A petitioner will not 

be given relief under this rule based upon any ground . . . [w]hich could have been but 

was not raised at trial, unless the ground for relief arises under Rule 32.1(b)[.]”).

Case 1:10-cv-00067-CG-C Document 63 Filed 03/08/13 Page 35 of 57
36

In light of Magwood’s determination that a resentencing proceeding in a death 

penalty case—wherein the state court again imposed the death penalty—constituted an 

intervening judgment, and the Eleventh Circuit’s consistent determination in Campbell 

v. Secretary for the Dept. of Corrections, 447 Fed.Appx. 25, 26 & 27 (11th Cir. Oct. 13, 

2011)32 that a state trial court’s reduction of a defendant’s death sentence to life 

imprisonment constitutes an intervening judgment, the undersigned has no difficulty in 

determining that the August 12, 2005, Order of the Circuit Court of Baldwin County, 

Alabama (changing Charest’s consecutive life sentences to concurrent life sentences) 

constitutes a “new judgment” as contemplated by the Supreme Court in Magwood.

B. In Light of the Fact that the August 12, 2005 Order of the Baldwin 

County Circuit Court is a New Judgment, the Court now Considers Whether Charest 

is Entitled to Assert Challenges Not Only With Respect to His Sentences but, as well, 

with Respect to his Unaltered, Underlying Convictions.

“The State objects that our reading of § 2244(b) would allow a petitioner who 

obtains a conditional writ as to his sentence to file a subsequent application challenging 

not only his resulting, new sentence, but also his original, undisturbed conviction. The 

State believes this result follows because a sentence and conviction form a single 

‘judgment’ for purposes of habeas review. This case gives us no occasion to address that 

question, because Magwood has not attempted to challenge his underlying conviction.” 

Magwood, U.S. at , 130 S. Ct. at 2802 (emphasis in original). In Magwood, petitioner 

only challenged his new sentence and refrained from attacking the underlying 

 32 “Unpublished opinions are not considered binding precedent, but they may be 

cited as persuasive authority.” 11th Cir. R. 36-2.

Case 1:10-cv-00067-CG-C Document 63 Filed 03/08/13 Page 36 of 57
37

conviction. Id. For this reason, the Supreme Court determined that it was not at liberty 

to consider the policy implications of a future, speculated case that might involve a 

petitioner challenging his underlying conviction via a § 2254 habeas petition after a new 

judgment had been issued. Id. at 2802-2803. 

Interestingly, while the majority in Magwood noted that “[s]everal Courts of 

Appeals have held that a petitioner who succeeds on a first habeas application and is 

resentenced may challenge only the ‘portion of a judgment that arose as a result of a 

previous successful action[,]’” id. at , n.16, 130 S.Ct. at 2802, n. 16 (citations omitted), 

the Second Circuit, in considering the import of Magwood and other Supreme Court 

precedent, held that “where a first habeas petition results in an amended judgment, a 

subsequent petition is not successive regardless of whether it challenges the conviction, 

the sentence, or both.” Johnson v. United States, 623 F.3d 41, 46 (2nd Cir. 2010); see also

Wentzell v. Neven, 674 F.3d 1124 (9th Cir. 2012) (agreeing with Second Circuit’s 

reasoning in Johnson v. United States). More importantly, in Campbell, supra, the Eleventh 

Circuit indicated that “Magwood permits a petitioner who received an intervening 

judgment to attack the unaltered prior conviction[.]” 447 Fed.Appx. at 27; see also id. at 

27-28 (“That this view would equally apply to petitioners attacking intervening 

judgments under Magwood finds support from the only two of our sister circuits to have 

presently addressed this issue.”); but cf. Suggs v. United States, 705 F.3d 279, , 2013 WL 

173969, *4-5 & 5 (7th Cir. Jan. 17, 2013) (“Magwood left open the question whether a 

motion following a resentencing is ‘second or successive’ where it challenges the 

underlying conviction, not the resentencing. Suggs’ case is distinct from the situation in 

Magwood, where the errors alleged in the second petition were ‘new.’ The petitioner in 

Magwood challenged an error made in the initial sentencing and again in the 

Case 1:10-cv-00067-CG-C Document 63 Filed 03/08/13 Page 37 of 57
38

resentencing, leading the Court to observe that ‘[a]n error made a second time is still a 

new error.’ The same is not true here. Suggs does not claim that any errors, new or 

repeated, occurred in his resentencing. Because the question before us is settled in our 

circuit and the Supreme Court considered the question but expressly declined to answer 

it, we follow our circuit’s precedents and hold that Suggs’ motion is second or 

successive. Even if the Court’s reasoning in Magwood could extend to the facts here, we 

believe it would be premature to depart from our precedent where the Court has not 

asked us to. Magwood’s application to these facts is not sufficiently clear for us to 

abandon principles of stare decisis based on what the Supreme Court itself called 

‘speculation’ about how the Court would rule on an issue it expressly chose not to 

decide.” (internal citations omitted)).

Although the undersigned believes that most of the circuit courts to have 

considered the import of Magwood have unnecessarily expanded that case even beyond 

the majority’s analysis, this Court will follow the direction of the Eleventh Circuit. To 

this end, therefore, the undersigned must necessarily find under Magwood and Campbell

that petitioner be allowed to present to this Court an attack on his unaltered felony 

convictions—on the jurisdictional ground about which Charest’s federal petition makes 

prominent mention—without specifically seeking the Eleventh Circuit’s permission to 

do so.

Concluding, under Magwood and its progeny, that the instant habeas corpus 

petition is not an application for which Charest was required to seek the permission of 

the Eleventh Circuit to file, see 28 U.S.C. § 2244(b), does not mean, however, that this 

Case 1:10-cv-00067-CG-C Document 63 Filed 03/08/13 Page 38 of 57
39

Court need consider the merits of Charest’s jurisdictional challenge.

33

 33 Interestingly, while petitioner admits he is challenging the trial court’s 

jurisdiction, he contends that “his specific challenge relates to the October 2008 hearing[]” and 

that “[i]t is a matter of impossibility for [him] to have raised a challenge to that hearing in his 

earlier habeas petition[.]” (Doc. 59, at 9 & 9-10.) If petitioner’s true beef, indeed, relates solely to 

his post-conviction proceeding held on October 2, 2008 (compare id. with Doc. 1 (petitioner 

couches his claims, as follows: (1) he was deprived of his right to redress his grievances at the 

October 2, 2008 evidentiary hearing based upon certain paperwork being illegally seized from 

him by Baldwin County jail agents; (2) at that hearing, the trial court failed to allow him to 

cross-examine Sergeant Griffith; and (3) the trial court failed to make specific findings of fact 

and enter a written order as required by Alabama law)), his present application need not detain 

this Court or any federal court too long inasmuch as the Eleventh Circuit “has repeatedly held 

defects in state collateral proceedings do not provide a basis for habeas relief.” Carroll v. 

Secretary, DOC, 574 F.3d 1354, 1365 (11th Cir.), cert. denied sub nom. Carroll v. McNeil, U.S. , 

130 S.Ct. 500, 175 L.Ed.2d 355 (2009); see also Alston v. Department of Corrections, State of Florida, 

610 F.3d 1318, 1325 (11th Cir. 2010) (“Federal habeas relief is available to remedy defects in a 

defendant’s conviction and sentence, but ‘an alleged defect in a collateral proceeding does not 

state a basis for habeas relief.’”), cert. denied sub nom. Alston v. McNeil, U.S. , 131 S.Ct. 829, 

178 L.Ed.2d 564 (2010); see Staas v. McDonough, 2007 WL 433462, *11 (M.D. Fla. Feb. 8, 2007) (“It 

is well established in the Eleventh Circuit that a federal court is not the appropriate forum for a 

prisoner who wishes to challenge the process afforded him in state collateral proceedings.”). 

The reasoning behind this well-established principle is straightforward: a 

challenge to a state collateral proceeding does not undermine the legality of the 

detention or imprisonment-i.e., the conviction itself-and thus habeas relief is not 

an appropriate remedy. Moreover, such challenges often involve claims under 

state law . . . which govern the availability of, and procedures attendant to, postconviction proceedings . . . and “[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.”

Carroll, supra (citations omitted); see also Staas, supra, at *11 (petitioner’s claim that his right to 

due process was violated by virtue of the state courts’ failure to hold an evidentiary hearing and 

provide rationale for the denial of collateral relief, as well as their failure to attach portions of 

the record conclusively refuting the claims raised in his collateral motions and petitions, failed 

to state a cognizable claim under § 2254). To the extent petitioner’s claims, as couched in the 

complaint, and as reiterated in petitioner’s reply (Doc. 59, at 8-9), constitute challenges to his 

October 2, 2008 state collateral proceeding, those claims do not undermine the legality of 

petitioner’s convictions themselves and, thus, provide no basis for federal habeas corpus relief. 

See Holsey v. Thompson, 462 Fed.Appx. 915, 917 (11th Cir. Mar. 21, 2012) (“We [] see no error in 

the district court’s denial of Ground Seven, in which Holsey challenged the state habeas court’s 

failure to address his sufficiency of the evidence claim. We have established that a challenge to a 

state collateral proceeding—like the one in Ground Seven—does not undermine the legality of 

the conviction itself and, thus, alleged defects in such proceedings do not provide a basis for 

habeas relief.”). 

More specifically, petitioner’s argument regarding the trial judge’s alleged failure to 

make specific oral findings and enter a written order is a claim arising under state law and, 

therefore, the state courts’ interpretation of its own laws and rules in this regard “’provides no 

Case 1:10-cv-00067-CG-C Document 63 Filed 03/08/13 Page 39 of 57
40

C. Finding no § 2244(b) “Successive” Bar, the Court Directs its Attention to 

Whether there Nevertheless Exists a Bar Pursuant to the Abuse-of-the-Writ Doctrine.

Although the instant federal habeas corpus application is not a successive

application for which petitioner was required to seek the permission of the Eleventh 

Circuit to file, there can be no question but that it represents a second-in-time federal 

 

basis for federal habeas corpus relief, since no question of a constitutional nature is involved.’” 

Carroll, supra, 574 F.3d at 1365 (citation omitted). As for the Griffith issue, “the Confrontation 

Clause does not apply to state post-conviction proceedings[,]” Oken v. Warden, MSP, 233 F.3d 

86, 93 (1st Cir. 2000), cert. denied sub nom. Oken v. Merrill, 532 U.S. 962, 121 S.Ct. 1494, 149 

L.Ed.2d 380 (2001), and, therefore, this claim—Charest claiming the right to cross-examine his 

own witness—does not raise a cognizable habeas claim, cf. Walls v. McDonough, 2006 WL 

3313737, *11 & 12 (M.D. Fla. Nov. 14, 2006) (petitioner’s contentions that post-conviction counsel 

violated his due process rights to confrontation and cross-examination when she called defense 

counsel as her own witness, thereby denying petitioner the right to cross-examine him, did not 

raise issues cognizable on federal habeas corpus review). Finally, even if the transcript of the 

October 2, 2008 evidentiary hearing did not show, on its face, that Charest was given a full and 

fair opportunity to present his jurisdictional claim to the Baldwin County Circuit Court and not 

once brought to the trial court’s attention that his legal material was confiscated by Baldwin 

County jail personnel, Charest’s initial ground of his habeas corpus petition (cloaked in First 

Amendment language) is not cognizable on habeas corpus because it does not concern his 

detention, Nichols v. Scott, 69 F.3d 1255, 1275 (5th Cir. 1995) (“An attack on a state habeas 

proceeding does not entitle the petitioner to habeas relief in respect to his conviction, as it is an 

attack on a proceeding collateral to the detention and not the detention itself.” (internal quotes 

omitted)), cert. denied sub nom. Nichols v. Johnson, 518 U.S. 1022, 116 S.Ct. 2559, 135 L.Ed.2d 1076 

(1996); instead, this claim concerns Alabama’s application of its own post-conviction rules and 

procedures, Charest specifically referencing not only the October 2, 2008 evidentiary hearing 

but also various Alabama Rules of Criminal Procedure. Compare, e.g., Alston, supra, 610 F.3d at 

1326 (“[T]he state court finding that Alston was competent to waive his post-conviction 

proceedings concerns the state’s application of its own post-conviction procedures, not the 

legality of Alston’s detention.”) with Quince v. Crosby, 360 F.3d 1259, 1262 (11th Cir.) 

(recognizing that the district court correctly found that petitioner’s claim for relief based on the 

trial judge’s refusal to recuse himself from the Rule 3.850 hearing was not a cognizable claim on 

habeas relief), cert. denied, 543 U.S. 960, 125 S.Ct. 436, 160 L.Ed.2d 325 (2004), and Slater v. Crosby, 

2006 WL 4757825, *2 (M.D. Fla. Oct. 25, 2006) (finding failure to notify petitioner and petitioner’s 

counsel of post-conviction hearing was not cognizable claim for relief on habeas corpus review), 

aff’d, 277 Fed.Appx. 976 (11th Cir.), cert. denied, 555 U.S. 871, 129 S.Ct. 170, 172 L.Ed.2d 122 

(2008).

In light of the foregoing, it is patently clear to the undersigned that the only claim which 

could possibly entitle Charest to federal habeas corpus relief is that claim which permeates and 

underscores all of his non-cognizable claims, namely, that the state courts of Alabama 

improperly determined that his felony convictions arose from acts occurring in the State of 

Alabama (such that jurisdiction was proper in Alabama). 

Case 1:10-cv-00067-CG-C Document 63 Filed 03/08/13 Page 40 of 57
41

application. Compare Campbell, supra, 447 Fed.Appx. at 27 (“In light of the resentencing 

proceeding, the Court determined that, although Magwood’s instant petition was 

second-in-time, it was his first petition ‘challenging that intervening judgment.’”) with 

Magwood, supra, at , 130 S.Ct. at 2796 (“[I]t is well settled that the phrase [‘second or 

successive’] does not simply ‘refe[r] to all § 2254 applications filed second or 

successively in time[.]”). Upon consideration of the principles that guide abuse-of-thewrit analysis, it is clear to the undersigned that Magwood and the abuse-of-the-writ 

doctrine can peacefully coexist in a case like the present where the record is clear that 

the petitioner had access to all information he needed to press the jurisdictional claim 

he now presses in the instant case to his unaltered felony convictions when he filed his 

first petition in this Court on May 7, 2003. More specifically, this Court should not view 

the state trial court’s decision in keeping the pertinent jurisdictional issue open for 

further development—particularly since Alabama state trial courts must always 

address such claims, compare Ala.R.Crim.P. 32.1(b) (“Subject to the limitations of Rule 

32.2, any defendant who has been convicted of a criminal offense may institute a 

proceeding in the court of original conviction to secure appropriate relief on the ground 

that . . . [t]he court was without jurisdiction to render judgment or to impose sentence.”) 

with Ala.R.Crim.P. 32.2(a)(3) (“A petitioner will not be given relief under this rule based 

upon any ground . . . [w]hich could have been but was not raised at trial, unless the 

ground for relief arises under Rule 32.1(b)[.]” (emphasis supplied))—as insulating 

Charest’s present petition from abuse-of-the-writ analysis given this Court’s previous 

recognition that jurisdictional challenges are not excluded from other AEDPA 

provisions. See, e.g., Barreto-Barreto v. United States, 551 F.3d 95, 100 (1st Cir. 2008) 

(pointing out that “[n]othing in the language of § 2255 suggests that jurisdictional 

Case 1:10-cv-00067-CG-C Document 63 Filed 03/08/13 Page 41 of 57
42

challenges are exempt from the one-year limitations period” and holding that such 

petitions “are not exempt from § 2255’s filing deadline”); Davis v. Secretary, Dept. of 

Corrections, 2009 WL 4730548, *1 (M.D. Fla. Dec. 7, 2009) (“There is no exception under 

AEDPA’s statute of limitation for a § 2254 claim that the state court lacked subject 

matter jurisdiction to impose the sentence for the conviction because the indictment was 

defective.”); United States v. Williams, 2009 WL 3230399, *8 (N.D. Fla. Oct. 2, 2009) 

(“Jurisdiction is specifically listed as a ground for § 2255 relief, and is not excluded from 

[] the one year limitations period of § 2255(f)[.]”), aff’d, 383 Fed.Appx. 927 (11th Cir. June 

21, 2010), cert. denied, U.S. , 131 S.Ct. 846, 178 L.Ed.2d 575 (2010). More 

importantly, this Court should be loathe to eschew that which was first explained by 

the Supreme Court in McCleskey v. Zant, 499 U.S. 467, 489, 111 S.Ct. 1454, 1468, 113 

L.Ed.2d 517 (1991), and reiterated by Justice Kennedy in dissent in Magwood, U.S. at 

, 130 S.Ct. at 2804, namely, that “a petitioner can abuse the writ by raising a claim in a 

subsequent petition that he could have raised in his first, regardless of whether the 

failure to raise it earlier stemmed from a deliberate choice.” The Court should be so 

reticent given that this “statement reaffirms every federal appellate court’s repeated 

recognition that the term ‘second or successive’ is not to be taken literally but is 

‘informed by’ the abuse-of-the-writ doctrine.” United States v. Buenrostro, 638 F.3d 720, 

724 (9th Cir.), cert. denied, U.S. , 132 S.Ct. 342, 181 L.Ed.2d 215 (2011); cf. Stewart v. 

United States, 646 F.3d 856, 859 (11th Cir. 2011) (“AEDPA’s restrictions on second or 

successive motions are meant to forestall abuse of the writ of habeas corpus, by, for 

instance, barring successive motions raising habeas claims that could have been raised 

in earlier motions where there was no legitimate excuse for failing to do so[.]” (citations 

omitted)); Gilbert v. United States, 640 F.3d 1293, 1335 (11th Cir. 2011) (“Giving life to this 

Case 1:10-cv-00067-CG-C Document 63 Filed 03/08/13 Page 42 of 57
43

limit on federal courts where state convictions are concerned, the abuse of the writ 

doctrine was codified in 28 U.S.C. § 2254, which governs those in custody ‘pursuant to 

the judgment of a State Court.’”), cert. denied, U.S. , 132 S.Ct. 1001, 181 L.Ed.2d 743 

(2012). 

The abuse-of-the-writ doctrine was discussed at length by the Supreme Court in 

its post-AEDPA decision in McCleskey v. Zant, supra.

Section 2244(b) raises, but does not answer, other questions. It does 

not state whether a district court may overlook a deliberately withheld or 

otherwise abusive claim to entertain the petition in any event. That is, it 

does not state the limits on the district court’s discretion to entertain 

abusive petitions. Nor does the statute define the term “abuse of the writ.” 

As was true of similar silences in the original 1948 version of § 2244, 

however, Congress did not intend § 2244(b) to foreclose application of the 

court-announced principles defining and limiting a district court’s 

discretion to entertain abusive petitions.

. . .

Like 28 U.S.C. § 2244(b), Rule 9(b) “incorporates the judge-made 

principle governing the abuse of the writ set forth in Sanders.” The 

Advisory Committee Notes make clear that a new claim in a subsequent 

petition should not be entertained if the judge finds the failure to raise it 

earlier “inexcusable.” The Notes also state that a retroactive change in the 

law and newly discovered evidence represent acceptable excuses for 

failing to raise the claim earlier.

In recent years we have applied the abuse of the writ doctrine in 

various contexts. In Woodward v. Hutchins, 464 U.S. 377, 104 S.Ct. 752, 78 

L.Ed.2d 541 (1984) (per curiam), the petitioner offered no explanation for 

asserting three claims in a second federal habeas petition not raised in the 

first. Five Justices inferred from the lack of explanation that the three 

claims “could and should have been raised in” the first petition, and that 

the failure to do so constituted abuse-of-the-writ. Similarly, in Antone v. 

Dugger, 465 U.S. 200, 104 S.Ct. 962, 79 L.Ed.2d 147 (1984) (per curiam), we 

upheld the Court of Appeals’ judgment that claims presented for the first 

time in a second federal petition constituted an abuse of the writ. We 

rejected petitioner’s argument that he should be excused from his failure 

to raise the claims in [the] first federal petition because his counsel during 

the first federal habeas prepared the petition in haste and did not have 

time to become familiar with the case. And just last Term, we held that 

claims raised for the first time in a fourth federal habeas petition abused 

Case 1:10-cv-00067-CG-C Document 63 Filed 03/08/13 Page 43 of 57
44

the writ because they “could have been raised” or “could have been 

developed” in the first federal habeas petition.

. . .

Abuse of the writ is not confined to instances of deliberate abandonment. 

Sanders mentioned deliberate abandonment as but one example of conduct 

that disentitled a petitioner to relief. Sanders cited a passage in Townsend v. 

Sain . . . which applied the principle of inexcusable neglect, and noted that 

this principle also governs in the abuse-of-the-writ context.

. . .

[A] petitioner may abuse the writ by failing to raise a claim through 

inexcusable neglect. Our recent decisions confirm that a petitioner can 

abuse the writ by raising a claim in a subsequent petition that he could 

have raised in his first, regardless of whether the failure to raise it earlier 

stemmed from a deliberate choice.

. . .

For reasons we explain below, a review of our habeas corpus precedents 

leads us to decide that the same standard used to determine whether to 

excuse state procedural defaults should govern the determination of 

inexcusable neglect in the abuse-of-the-writ context.

. . .

The doctrines of procedural default and abuse of the writ implicate 

nearly identical concerns flowing from the significant costs of federal 

habeas corpus review. To begin with, the writ strikes at finality. One of the 

law’s very objects is the finality of its judgments. Neither innocence nor 

just punishment can be vindicated until the final judgment is known. 

“Without finality, the criminal law is deprived of much of its deterrent 

effect.” 

. . .

Far more severe are the disruptions when a claim is presented for 

the first time in a second or subsequent federal habeas petition. If 

“[c]ollateral review of a conviction extends the ordeal of trial for both 

society and the accused,” the ordeal worsens during subsequent collateral 

proceedings. Perpetual disrespect for the finality of convictions disparages 

the entire criminal justice system.

. . .

Case 1:10-cv-00067-CG-C Document 63 Filed 03/08/13 Page 44 of 57
45

If reexamination of a conviction in the first round of federal habeas 

stretches resources, examination of new claims raised in a second or 

subsequent petition spreads them thinner still. These later petitions 

deplete the resources needed for federal litigants in the first instance, 

including litigants commencing their first federal habeas action. . . . And if 

reexamination of convictions in the first round of habeas offends 

federalism and comity, the offense increases when a State must defend its 

conviction in a second or subsequent habeas proceeding on grounds not 

even raised in the first petition.

. . .

We conclude from the unity of structure and purpose in the 

jurisprudence of state procedural defaults and abuse of the writ that the 

standard for excusing a failure to raise a claim at the appropriate time 

should be the same in both contexts. We have held that a procedural 

default will be excused upon a showing of cause and prejudice. We now 

hold that the same standard applies to determine if there has been an 

abuse of the writ through inexcusable neglect.

In procedural default cases, the cause standard requires the 

petitioner to show that “some objective factor external to the defense 

impeded counsel’s efforts” to raise the claim in state court. Objective 

factors that constitute cause include “’interference by officials’” that 

makes compliance with the State’s procedural rule impracticable, and “a 

showing that the factual or legal basis for a claim was not reasonably 

available to counsel.” In addition, constitutionally “[i]neffective assistance 

of counsel . . . is cause.” Attorney error short of ineffective assistance of 

counsel, however, does not constitute cause and will not excuse a 

procedural default. Once the petitioner has established cause, he must 

show “’actual prejudice’ resulting from the errors of which he complains.”

Federal courts retain the authority to issue the writ of habeas 

corpus in a further, narrow class of cases despite a petitioner’s failure to 

show cause for a procedural default. These are extraordinary instances 

when a constitutional violation probably has caused the conviction of one 

innocent of the crime. We have described this class of cases as implicating 

a fundamental miscarriage of justice.

Id. at 487, 487-488, 489, 490, 490-491, 492 & 493-494, 111 S.Ct. at 1466, 1467, 1467-1468, 

1468, 1469 & 1470. Consistent with McCleskey’s statements regarding the parameters of 

the abuse-of-the-writ doctrine, the dissent in Magwood noted the following:

[I]f the petitioner had a full and fair opportunity to raise the claim in the 

prior application, a second-in-time application that seeks to raise the same 

Case 1:10-cv-00067-CG-C Document 63 Filed 03/08/13 Page 45 of 57
46

claim is barred as “second or successive.” This is consistent with preAEDPA cases applying the abuse-of-the-writ doctrine and the bar on 

“second or successive” applications.

. . .

[U]nder abuse-of-the-writ principles, a petitioner loses his right to 

challenge the error by not raising a claim at the first opportunity after his 

claim becomes ripe. On the other hand, if the petitioner raises a claim in 

his second habeas petition that could not have been raised in the earlier 

petition—perhaps because the error occurred for the first time during 

resentencing—then the application raising the claim is not “second or 

successive” and § 2244(b)(2)’s bar does not apply.

Magwood, supra, U.S. at , 130 S.Ct. at 2804 & 2806 (Kennedy, J. dissenting).

Although petitioner has attempted to artfully (but unsuccessfully) craft his 

claims, it is his ultimate goal to obtain this Court’s consideration of the merits of his 

jurisdictional claim. This claim has long been known by petitioner, if not from the 

moment he (a citizen of Florida) was indicted by the Baldwin County Circuit Court for 

felonies committed in an area in close proximity to the Florida and Alabama state lines, 

certainly by the time petitioner was pursuing his first state-court collateral attack on his 

convictions and sentences in early 1998. Indeed, at least by mid-1998, Charest knew of 

the identity of Greg Spies, his primary (jurisdictional) witness at the October 2, 2008 

evidentiary hearing, and contended in both pro se and counseled pleadings (as well as in 

counseled proceedings) that the trial court was without jurisdiction to render judgment 

or impose sentence in that the offenses, if any, were committed in the State of Florida, 

not in the State of Alabama, and that he possessed evidence showing that the alleged 

offenses occurred in Florida. The lengthy recitation of the factual background of the 

instant case reflects that Charest made numerous jurisdictional arguments while his 

first Rule 32 petition was pending in the Baldwin County Circuit Court and even in his 

March 29, 2000 pro se written notice of appeal. It is while this first Rule 32 was on 

Case 1:10-cv-00067-CG-C Document 63 Filed 03/08/13 Page 46 of 57
47

appeal, and again when it came before this Court on the first federal habeas attack, that 

Charest, through counsel, deliberately abandoned his jurisdictional claims.34 Indeed, as 

previously indicated, the counseled petitioner made no argument to the Alabama 

Supreme Court on petition for writ of certiorari or to this Court in his first federal 

habeas petition that the Alabama Court of Criminal Appeals improperly determined in 

its April 26, 2002 decision that he had abandoned certain claims asserted in his February 

6, 1998 Rule 32 petition—including his jurisdictional claims—by failing to assert them 

on appeal. See, supra, n.18. 

Based on the foregoing, the undersigned finds that petitioner has lost any right to 

challenge the aforementioned jurisdictional error (which permeates all the “claims” 

asserted in this Court) by not raising that claim in his first habeas corpus attack in this 

Court. More specifically, the pivotal jurisdictional claim is not “new” error and was not 

made “new” by the fortuity of Alabama’s trial court inserting into the August 12, 2005 

intervening judgment its legal obligation to consider true jurisdictional claims, 

whenever raised. Indeed, this claim is old, dated error as it was ripe when the first 

federal petition was filed and should have been raised and developed during the 

pendency of that petition, instead of being deliberately abandoned by the counseled 

petitioner.

35 That Charest has abused the writ with respect to his jurisdictional claim 

 34 The undersigned deliberately references “claims” inasmuch as during this period 

of time petitioner also contended that his trial attorney provided ineffective assistance for 

failing to raise the jurisdictional claim prior to and during his trial.

35 Petitioner has no viable argument that newly discovered evidence excuses his 

failure to raise the claim earlier or that this Court should otherwise apply the cause and 

prejudice standard. Although Charest may not have been in a financial position to pay Spies for 

his testimony back in 1998 through 2003, he was well aware that Spies was the key to his 

jurisdictional claim before he filed his first federal habeas attack and, therefore, he simply 

cannot argue that the information Spies held was “newly discovered.” 

Case 1:10-cv-00067-CG-C Document 63 Filed 03/08/13 Page 47 of 57
48

cannot be gainsaid. 

D. Even if Charest’s Jurisdictional Claim is not Abusive, the Present 

Habeas Corpus Petition is Nonetheless Time-Barred.

The issue having been fully brief (see Docs. 50, 57 & 59), the undersigned now 

addresses whether this second-in-time application is time-barred pursuant to 28 U.S.C. 

§ 2244(d).

(1) A 1-year period of limitation shall apply to an application for a writ of 

habeas corpus by a person in custody pursuant to the judgment of a 

State court. The limitation period shall run from the latest of—

(A) the date on which the judgment became final by the 

conclusion of direct review or the expiration of the time 

for seeking such review;

(B) the date on which the impediment to filing an 

application created by State action in violation of the 

Constitution or laws of the United States is removed, if 

the applicant was prevented from filing by such State 

action;

(C) the date on which the constitutional right asserted was 

initially recognized by the Supreme Court, if the right 

has been newly recognized by the Supreme Court and 

made retroactively applicable to cases on collateral 

review; or

(D) the date on which the factual predicate of the claim or 

claims presented could have been discovered through 

the exercise of due diligence.

(2) The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent 

judgment or claim is pending shall not be counted toward any period of 

limitation under this subsection. 

28 U.S.C. § 2244(d). Applicable to the present case are subsections (d)(1)(A) and (d)(2). 

Id. Therefore, it must be determined (1) at which date the “intervening” August 12, 

2005 judgment became final, and (2) the time tolled while Charest was pursuing 

Case 1:10-cv-00067-CG-C Document 63 Filed 03/08/13 Page 48 of 57
49

properly-filed post-judgment collateral petitions in the state courts of Alabama. 

The Eleventh Circuit has specifically held that ”AEDPA’s statute of limitations 

runs from the date the judgment pursuant to which the petitioner is in custody becomes 

final, which is the date both the conviction and sentence the petitioner is serving become 

final.” Ferreira II, supra, 494 F.3d at 1288 (emphasis in original); see also Stites v. Secretary 

for the Dept. of Corrections, 278 Fed.Appx. 933, 934 (11th Cir. May 21, 2008) (“In Ferreira, 

we concluded that ‘AEDPA’s statute of limitations begins to run from the date both the 

conviction and the sentence the petitioner is serving at the time he files his application 

become final because judgment is based on both the conviction and the sentence.’”). The 

pertinent “intervening” judgment in this case was entered by the Circuit Court of 

Baldwin County, Alabama on August 12, 2005.

36 In accordance with Rule 4 of the 

 36 The undersigned specifically REJECTS petitioner’s argument that the August 12, 

2005 intervening judgment did not become final until January 15, 2010 when the Alabama 

Supreme Court issued its certificate of judgment of final affirmance. (See Doc. 59, at 11.) 

Petitioner bases his argument on the third provision of the trial court’s August 12, 2005 order 

which specifically recognized his “right to continue to challenge the jurisdiction of the Circuit 

Court of Baldwin County to adjudicate the charges against him.” (Id.) Petitioner not only fails to 

cite any legal authority in support of his argument (see id.) but, more importantly, if accepted, 

his argument would effectively eviscerate the one-year limitations period set forth in the 

admittedly applicable § 2244(d)(1)(A) (see id.) and turn the core habeas concern of finality on its 

head. See McCleskey, supra, 499 U.S. at 491, 111 S.Ct. at 1468 (“[T]he writ strikes at finality. One 

of the law’s very objects is the finality of its judgments. Neither innocence nor just punishment 

can be vindicated until the final judgment is known. ‘Without finality, the criminal law is 

deprived of much of its deterrent effect.’”). 

Pursuant to § 2244(d)(1)(A) and relevant case law, the one-year limitations period begins 

to run from the date on which the judgment pursuant to which the petitioner is in custody 

becomes final, which is the date both the conviction and sentence the petitioner is serving 

become final, Ferreira II, supra, 494 F.3d at 1288 (emphasis in original), “by the conclusion of 

direct review or the expiration of the time for such review.” 28 U.S.C. § 2244(d)(1)(A) (emphasis 

supplied). Petitioner did not appeal the August 12, 2005 order, which was his route for direct 

review of the intervening judgment. His later-filed Rule 60(b) motion, which was construed as a 

Rule 32 petition and which Charest referred in the instant federal petition as a Rule 32 petition, 

was a collateral, as opposed to a direct, attack on the intervening judgment. While this collateral 

petition could toll the running of the one-year limitations period, it cannot be regarded as part 

and parcel of the direct review referenced in § 2244(d)(1)(A) by the mere act of the trial court 

explicitly inserting in its intervening judgment that which is implicit in every judgment 

Case 1:10-cv-00067-CG-C Document 63 Filed 03/08/13 Page 49 of 57
50

Alabama Rules of Appellate Procedure, Charest had 42 days to file his notice of appeal

from this new judgment. See Ala.R.App.P. 4(a)(1) (“Except as otherwise provided 

herein, in all cases in which an appeal is permitted by law as of right to the supreme 

court or to a court of appeals, the notice of appeal required by Rule 3 shall be filed with 

the clerk of the trial court within 42 days (6 weeks) of the date of the entry of the 

judgment or order appealed from[.]”). Charest did not appeal the trial court’s August 

12, 2005 order; therefore, that order became final by the conclusion of direct review, and

the AEDPA’s statute of limitations began running, forty-two days later on September 

23, 2005. See Hepburn v. Moore, 215 F.3d 1208, 1209 (11th Cir. 2000) (“The statute of 

limitations [] began to run on October 23, 1998, the date the resentencing order became 

final by the conclusion of direct review.”)

Charest filed a Rule 32 Petition collaterally challenging his unaltered felony 

convictions on September 20, 2006 (compare Doc. 1, at 5 with Doc. 62, Exhibit 1, at 33), 

three hundred and sixty-two (362) days after the statute of limitations began running. 

The Alabama Court of Criminal Appeals affirmed the trial court’s denial of Charest’s 

 

rendered in Alabama, namely, that “any defendant who has been convicted of a criminal 

offense may institute a proceeding in the court of original conviction to secure appropriate relief 

on the ground that . . . [t]he court was without jurisdiction to render judgment or to impose 

sentence.” Ala.R.Crim.P. 32.1(b). Otherwise, taken to its logical conclusion and swallowed 

whole, no Alabama judgment for which a jurisdictional attack could be interposed would be 

final until all such collateral attacks are complete. Such result would, as previously indicated, 

undermine the core habeas concern of finality. The undersigned declines to do such damage to 

the writ and, to this end, finds it clear that the August 12, 2005 judgment became final by the 

expiration of the time for filing direct review on September 23, 2005, see infra, particularly in 

light of the trial court’s clear statement at the August 10, 2005 proceeding that it was taking the 

position that Charest committed (and was convicted of) the felony offenses of first-degree rape 

and first-degree sodomy (Doc. 62, Exhibit 1, August 10, 2005 Hearing Tr., at 32-33; see also id. at 

33 (“I will not seek any appellate review.”)), as well as petitioner’s consistent position that the 

August 12, 2005 Order is a new judgment because it set forth a new sentence (compare Doc. 59, 

at 2-6 with id. at 11). Stated differently, Charest’s unaltered felony convictions and concurrent 

life sentences became final by the expiration of the time for filing direct review on September 23, 

2005. See Hepburn, infra.

Case 1:10-cv-00067-CG-C Document 63 Filed 03/08/13 Page 50 of 57
51

Rule 32 petition on August 22, 2008, thereby arguably tolling the statute of limitations 

from September 20, 2006 until August 22, 2008.37 The AEDPA’s statute of limitations 

would have resumed from that point forward but for Charest having filed a Rule 60(b) 

motion38 on October 15, 2007, during the pendency of the just mentioned Rule 32 

petition. The life of Charest’s Rule 60(b) petition, which was construed as a Rule 32 

petition by the Baldwin County Circuit Court, is as follows: the petition was denied by 

the trial court on October 2, 2008; the Alabama Court of Criminal Appeals affirmed the 

trial court’s denial of the petition on November 6, 2009; Charest’s application for 

rehearing was overruled on December 4, 2009; and the Alabama Supreme Court denied 

Charest’s petition for writ of certiorari on January 15, 2010. Therefore, the statute of 

limitations began to run again on January 16, 2010 and ran unabated until February 5, 

2010 when Charest filed the instant habeas corpus attack on his felony convictions. This 

twenty (20) days combined with the 362 days that ran prior to the filing of his 

September 20, 2006 Rule 32 petition totals 382 days. Accordingly, Charest’s present 

habeas petition is time-barred and the only avenue by which this Court can consider the 

merits of the petition is by finding that petitioner is entitled to equitable tolling of 

AEDPA’s one-year limitations period.

In Holland v. Florida, 560 U.S. , 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010), the 

Supreme Court specifically held, for the first time, that “§ 2244(d) is subject to equitable 

tolling in appropriate cases[,]” id. at , 130 S.Ct. at 2560, and reiterated “that a 

 37 The undersigned inserts the word “arguably” because this petition raised issues 

that the August 12, 2005 judgment did not contemplate.

38 This motion/petition contained the subject matter jurisdiction claim, specifically,

that if any crimes occurred they occurred in Florida and not Alabama.

Case 1:10-cv-00067-CG-C Document 63 Filed 03/08/13 Page 51 of 57
52

‘petitioner’ is ‘entitled to equitable tolling’ only if he shows ‘(1) that he has been 

pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his 

way’ and prevented timely filing.” Id. at , 130 S.Ct. at 2562. For its part, the Eleventh 

Circuit has long embraced the doctrine of equitable tolling with regard to the one-year 

limitations period at issue: “Equitable tolling is to be applied when extraordinary 

circumstances have worked to prevent an otherwise diligent petitioner from timely 

filing his petition. . . . Thus, the petitioner must show both extraordinary circumstances 

and due diligence in order to be entitled to equitable tolling.” Diaz v. Secretary for the 

Dept. of Corrections, 362 F.3d 698, 700-701 (11th Cir. 2004) (citation and internal quotation 

marks omitted). “Section 2244 is a statute of limitations, not a jurisdictional bar. 

Therefore, it permits equitable tolling ‘when a movant untimely files because of 

extraordinary circumstances that are both beyond his control and unavoidable even 

with diligence.’” Steed v. Head, 219 F.3d 1298, 1300 (11th Cir. 2000) (citation omitted). 

Thus, the one-year limitations provision need not be equitably tolled unless there is 

evidence that “extraordinary circumstances” beyond petitioner’s control made it 

impossible for him to file his petition on time. See Miller v. New Jersey State Dept. of 

Corrections, 145 F.3d 616, 618-619 (3rd Cir. 1998) (“[E]quitable tolling is proper only 

when the ‘principles of equity would make [the] rigid application [of a limitation 

period] unfair.’ . . . Generally, this will occur when the petitioner has ‘in some 

extraordinary way . . . been prevented from asserting his or her rights.’ . . . The 

petitioner must show that he or she ‘exercised reasonable diligence in investigating and 

bringing [the] claims.’ . . . Mere excusable neglect is not sufficient.”). The Supreme 

Court in Holland indicated that “[t]he diligence required for equitable tolling purposes 

is reasonable diligence, not maximum feasible diligence[,]” id. at , 130 S.Ct. at 2565, 

Case 1:10-cv-00067-CG-C Document 63 Filed 03/08/13 Page 52 of 57
53

and gave the following guidance with respect to “extraordinary circumstances”:

We have previously held that “a garden variety claim of excusable 

neglect,” such as a simple “miscalculation” that leads a lawyer to miss a 

filing deadline, does not warrant equitable tolling. But the case before us 

does not involve, and we are not considering, a “garden variety claim” of 

attorney negligence. Rather, the facts of this case present far more serious

instances of attorney misconduct. And, as we have said, although the 

circumstances of a case must be “extraordinary” before equitable tolling 

can be applied, we hold that such circumstances are not limited to those 

that satisfy the test that the Court of Appeals used in this case.

The record facts that we have set forth in Part I of this opinion 

suggest that this case may well be an “extraordinary” instance in which 

petitioner’s attorney’s conduct constituted far more than “garden variety” 

or “excusable neglect.” To be sure, Collins failed to file Holland’s petition 

on time and appears to have been unaware of the date on which the 

limitations period expired-two facts that, alone, might suggest simple 

negligence. But, in these circumstances, the record facts we have 

elucidated suggest that the failure amounted to more: Here, Collins failed 

to file Holland’s federal petition on time despite Holland’s many letters 

that repeatedly emphasized the importance of his doing so. Collins 

apparently did not do the research necessary to find out the proper filing 

date, despite Holland’s letters that went so far as to identify the applicable 

legal rules. Collins failed to inform Holland in a timely manner about the 

crucial fact that the Florida Supreme Court had decided his case, again 

despite Holland’s many pleas for that information. And Collins failed to 

communicate with his client over a period of years, despite various pleas 

from Holland that Collins respond to his letters. 

Id. at , 130 S.Ct. at 2564.

In this case, Charest has not established that the instant habeas corpus petition 

was timely filed nor has he established that extraordinary circumstances and due 

diligence counsel equitable tolling of the limitations period. See Spottsville v. Terry, 476 

F.3d 1241, 1245 (11th Cir. 2007) (“‘The burden of establishing entitlement to this 

extraordinary remedy plainly rests with the petitioner[.]’”). Indeed, Charest actually 

interposes no arguments in favor of equitable tolling (see, e.g., Doc. 59, at 10-11); 

however, the undersigned will nonetheless briefly consider possible applicability of this 

doctrine. In this regard, petitioner makes no argument that he was ignorant of the oneCase 1:10-cv-00067-CG-C Document 63 Filed 03/08/13 Page 53 of 57
54

year limitations period nor could he reasonably argue such ignorance in light of the fact 

that this Court found his first federal petition time-barred.

39 Moreover, the undersigned 

reiterates that jurisdictional challenges are not excluded from the one-year limitations 

period, see, e.g., Barreto-Barreto, supra, 551 F.3d at 100 (pointing out that “[n]othing in the 

language of § 2255 suggests that jurisdictional challenges are exempt from the one-year 

limitations period” and holding that such petitions “are not exempt from § 2255’s filing 

deadline”); Davis, supra, at *1 (“There is no exception under AEDPA’s statute of 

limitation for a § 2254 claim that the state court lacked subject matter jurisdiction to 

impose the sentence for the conviction because the indictment was defective.”); 

Williams, supra, at *8 (“Jurisdiction is specifically listed as a ground for § 2255 relief, and 

is not excluded from [] the one year limitations period of § 2255(f)[.]”), and, therefore, 

concludes that nothing other than petitioner’s own lack of due diligence is responsible 

for the untimeliness of the filing of the instant petition. This is simply not one of those 

rare cases in which principles of equitable tolling can save petitioner from AEDPA’s 

one-year limitations period.

To the extent any of petitioner’s arguments in his various pleadings can be read 

to suggest that the one-year limitations period is not applicable to his case because he is 

actually innocent of the first-degree rape and first-degree sodomy of A.C., such 

 39 In truth, such an argument would not serve as a basis to equitably toll the 

limitations period. Gardner v. Walker, 2005 WL 1127137, *1 (M.D. Ga. May 7, 2005) (“‘Ignorance 

of the law is no excuse; it is not a reason for equitable tolling.’ . . . Here, Petitioner’s Objection is 

without merit because his ignorance of AEDPA’s limitations period fails to amount to 

‘extraordinary circumstance[s]’ for equitable tolling purposes.”); see also Burton v. Deloach, 2008

WL 2131398, *2 (M.D. Ala. Mar. 13, 2008) (“The law is well settled that an inmate’s lack of legal 

knowledge, his failure to understand legal principles and/or the inability to recognize potential 

claims for relief at an earlier juncture do not constitute extraordinary circumstances sufficient to 

warrant equitable tolling of the limitation period.”), report & recommendation adopted, 2008 WL 

2131395 (M.D. Ala. May 20, 2008); see Teel v. Farrell, 2006 WL 1148817, *4 (M.D. Ala. Apr. 28, 

2006) (“[A]n inmate’s status as a pro se litigant does not warrant equitable tolling.”). 

Case 1:10-cv-00067-CG-C Document 63 Filed 03/08/13 Page 54 of 57
55

argument need be rejected. Although the Eleventh Circuit has not yet decided “whether 

a showing of actual innocence is an exception to the one-year statute of limitations in 

AEDPA[,]” Ray v. Mitchem, 272 Fed.Appx. 807, 810 n.2 (11th Cir.), cert. denied, 555 U.S. 

898, 129 S.Ct. 204, 172 L.Ed.2d 170 (2008), it has guided courts to make the actual 

innocence inquiry as opposed to “addressing the difficult constitutional question of 

whether the limitations period constitutes a violation of the Suspension Clause if the 

petitioner can show actual innocence[.]” Id. To be credible, a claim of actual innocence 

“requires petitioner to support his allegations of constitutional error with new reliable 

evidence--whether it be exculpatory scientific evidence, trustworthy eyewitness 

accounts, or critical physical evidence--that was not presented at trial.” Schlup v. Delo, 

513 U.S. 298, 324, 115 S.Ct. 851, 865, 130 L.Ed.2d 808 (1995); see also id. at 327, 115 S.Ct. at 

867 (“To establish the requisite probability, the petitioner must show that it is more 

likely than not that no reasonable juror would have convicted him in the light of the 

new evidence.”). As previously observed by the Eleventh Circuit, Charest’s “newly 

discovered evidence,” namely, the land survey, “does not prove that he is factually 

innocent of the rape and sodomy charges underlying his conviction[s] and sentence[s], 

and at most, relates solely to his potential legal innocence.” (Doc. 9, Exhibit A, at 3, 

citing In re Boshears, 110 F.3d 1538, 1541 (11th Cir. 1997).) Accordingly, Charest’s present

federal habeas petition is time-barred. Cf. Justo v. Culliver, 317 Fed.Appx. 878, 881 (11th 

Cir. Aug. 21, 2008) (“Justo fails to show actual innocence to the offense to which he 

pleaded guilty. No error has been shown in the dismissal of Justo’s habeas petition as 

time-barred.”). 

CONCLUSION

It is recommend that the Court DENY Patrick Charest’s federal habeas corpus 

Case 1:10-cv-00067-CG-C Document 63 Filed 03/08/13 Page 55 of 57
56

petition (Doc. 1) on the basis that he has abused the writ. In addition, the instant 

petition is due to be dismissed as time-barred pursuant to 28 U.S.C. § 2244(d)(1). 

Inasmuch as this cause is on remand from the Eleventh Circuit Court of Appeals, it is 

not necessary for this Court to address the issue of whether a certificate of appealability 

should issue.

The instructions which follow the undersigned’s signature contain important 

information regarding objections to the report and recommendation of the Magistrate 

Judge.

DONE this the 8th day of March, 2013.

s/WILLIAM E. CASSADY

UNITED STATES MAGISTRATE JUDGE

Case 1:10-cv-00067-CG-C Document 63 Filed 03/08/13 Page 56 of 57
PAGE 26

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 days40 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 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. 

 40 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). 

Case 1:10-cv-00067-CG-C Document 63 Filed 03/08/13 Page 57 of 57