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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

LEE VERNON DEAN, :

 :

Petitioner. :

 :

vs. : CIVIL ACTION 14-0419-CB-M

 :

CYNTHIA WHITE, :

 :

Respondent. :

REPORT AND RECOMMENDATION

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

inmate that was referred for report and recommendation pursuant 

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

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

ready for consideration. The state record is adequate to 

determine Petitioner's claims; no federal evidentiary hearing is 

required. It is recommended that the habeas petition be denied 

and that this action be dismissed. It is further recommended 

that any certificate of appealability filed by Petitioner be 

denied as he is not entitled to appeal in forma pauperis. 

Finally, it is recommended that judgment be entered in favor of 

Respondent, Cynthia White, and against Petitioner, Lee Vernon 

Dean.

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Petitioner was convicted of first-degree property theft (a 

motor vehicle) in Mobile County Circuit Court on June 9, 2006

and sentenced to twenty years in the state penitentiary (Doc. 

1). Dean’s Attorney, on appeal, filed a no merit brief under 

Anders v. California, 386 U.S. 738 (1967); the Alabama Court of 

Criminal Appeals, on December 1, 2006, affirmed the conviction 

and sentence, noting that the Attorney had substantially 

complied with Anders and that Dean had not filed a pro se brief, 

though given the opportunity (Doc. 19, Exhibit B;). 

Petitioner timely-filed a State Rule 32 petition, and then 

later, some amendments, all found meritless by the trial judge 

(see Doc. 19, Exhibit D, pp. 1-2). The Alabama Criminal Appeals 

Court affirmed that decision on March 7, 2014 (Doc. 19, Exhibit 

D). On August 8, 2014, the Alabama Supreme Court denied 

certiorari and a certificate of judgment was entered (Doc. 1, 

pp. 15-16). 

Petitioner filed his habeas petition in this Court on 

September 8, 2014, raising the following claims: (1) His 

conviction was obtained by use of evidence gathered during an 

unconstitutional search and seizure; (2) the Prosecution did not 

disclose evidence favorable to him; and (3) he was denied the 

effective assistance of counsel (Doc. 1).

Dean’s first claim is that his conviction was obtained by 

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use of evidence gathered during an unconstitutional search and 

seizure (Doc. 1, pp. 7, 9). Petitioner specifically asserts 

that a pill bottle was improperly attributed to him in his

conviction.

The Court notes, however, that because Petitioner's claim 

relates solely to an alleged fourth amendment violation, and 

because Petitioner had the opportunity to fully litigate this 

claim in state courts—whether or not he availed himself of that 

opportunity—habeas corpus relief is not available. Caver v. 

Alabama, 577 F.2d 1188, 1191-92 (5th Cir. 1978);1 see also Stone 

v. Powell, 428 U.S. 465, 494 (1976). The Court further notes 

that Dean had the opportunity to raise this claim during his 

initial trial, on appeal, and during full review of his State 

Rule 32 petition. Because he did not do so, Stone and Caver

preclude its consideration here.

Petitioner next claims that the Prosecutor did not disclose 

evidence favorable to him. Dean’s entire explanation follows:2

 1

The Eleventh Circuit, in Bonner v. City of Prichard, 661 F.2d 

1206, 1209 (11th Cir. 1981) (en banc), adopted as precedent decisions 

of the former Fifth Circuit rendered prior to October 1, 1981.

2

The State provides no defense, acknowledging, without citation, 

that Dean raised this claim and that the State courts have fully 

reviewed it (Doc. 19, pp. 5, 6). While the Court’s review of the 

evidence suggests that this claim is procedurally defaulted, having 

been raised previously only as a specific instance of ineffective 

assistance, it is of no moment in light of the decision reached 

herein. 

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On 5/8/06, date of trial, & after 

receiving transcript, Petitioner discovered 

for the first time, that there was a 

cellphone + checkbooks [] left inside the 

car-jacked vehicle and there were actual 

witnesses at the entire commission of this 

theft crime, other then [sic] the state 

alleged eye-witness, Donald Wayne Tillman.”

(Doc. 1, pp. 7, 9; see also pp. 32, 106-07, 108, 111). 

In Brady v. State of Maryland, 373 U.S. 83, 87 (1963), the 

U.S. Supreme Court held that "the suppression by the prosecution 

of evidence favorable to an accused upon request violates due 

process where the evidence is material either to guilt or to 

punishment, irrespective of the good faith or bad faith of the 

prosecution." The Eleventh Circuit Court of Appeals has 

delineated the showing that must be made by stating that "[a] 

Brady violation occurs where: (1) the prosecution suppressed 

evidence; (2) the evidence was favorable to the defendant; and 

(3) the evidence was material to the issues at trial." Stano v. 

Dugger, 901 F.2d 898, 899 (11th Cir. 1990), cert. denied sub 

nom. Stano v. Singletary, 516 U.S. 1122 (1996) (citing United 

States v. Burroughs, 830 F.2d 1574, 1577-78 (11th Cir. 1987), 

cert. denied sub nom. Rogers v. U.S., 485 U.S. 969 (1988)). The 

Stano Court went on to say that "[s]uppressed evidence is 

material when 'there is a reasonable probability that . . . the 

result of the proceeding would have been different' had the 

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evidence been available to the defense." Stano, 901 F.2d at 899 

(citing Pennsylvania v. Ritchie, 480 U.S. 39, 57 (1987) and 

quoting United States v. Bagley, 473 U.S. 667, 682 (1985) 

(plurality opinion of Blackmun, J.)).

Petitioner’s argument, essentially, is that unnamed people 

might have testified differently than those who did had they 

been called. The Court finds that Dean has failed to establish 

that the prosecution suppressed evidence favorable to him that, 

with reasonable probability, would have changed the result of 

his trial as required by Brady and Stano. This claim has no 

merit.

Next Petitioner asserts that his Attorney rendered 

ineffective assistance in that he failed to: (a) conduct any 

investigation on his own or into the Prosecution’s provided 

discovery; (2) failed to discover inconsistent testimony between 

the victim and the State’s witness; (3) failed to interview a 

person that Dean maintains committed the crime for which he was 

convicted; and (4) failed to objection to an unduly suggestive 

photographic array containing Dean’s photo (Doc. 1, pp. 8-10). 

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

United States Supreme Court defined what a habeas petitioner 

must show to prevail on an ineffective assistance claim:

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First, the defendant must show that 

counsel's performance was deficient. This 

requires showing that counsel made errors so 

serious that counsel was not functioning as 

the "counsel" guaranteed the defendant by 

the sixth amendment. Second, the defendant 

must show that the deficient performance 

prejudiced the defense. This requires 

showing that counsel's errors were so 

serious as to deprive the defendant of a 

fair trial, a trial whose result is 

reliable. Unless a defendant makes both 

showings, it cannot be said that the 

conviction . . . resulted from a breakdown 

in the adversary process that renders the 

result unreliable. 

Id. at 687.

The Court notes that Dean raised these particularized 

claims of ineffective assistance in his Rule 32 petition (Doc. 

9, Exhibit A, pp. 15-65). Following a hearing, Circuit Court 

Judge Lockett entered an Order summarizing the evidence 

presented before finding no merit in Petitioner’s ineffective 

assistance claims. Judge Lockett specifically noted that 

following:

The only evidence presented by the 

Petitioner during the hearing was his 

testimony. Petitioner made conclusory 

statements unsupported by any evidence. 

Petitioner failed to subpoena and/or call 

any witnesses, including his daughter and 

Townsend to support his assertions. 

Petitioner also failed to introduce into 

evidence the photo spread. Additionally, 

even taking the testimony of the Petitioner 

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in a light most favorable to Petitioner, the 

testimony does not show that Petitioner did 

not commit the theft of the vehicle and 

therefore would not have changed the outcome 

of the proceeding.

(Doc. 14, Exhibit A, p. 89; see also Exhibit G). Judge Lockett 

went on to deny Dean’s claims of ineffective assistance. The 

Alabama Court of Criminal Appeals affirmed the lower court 

decision, finding no errors therein (Doc. 19, Exhibit D). 

This Court has reviewed Dean’s arguments and notes that no

evidence has been presented of his Attorney’s ineffective 

assistance. Though Petitioner alleges different incidents of 

deficient performance, he has failed to provide evidence to 

support his claims under Strickland. The Court finds that 

Dean’s assertions of ineffective assistance enjoy no factual 

foundation to support them. This claim is without merit.

In bringing this action, Petitioner raises three claims. 

All are without merit. Therefore, it is recommended that this 

petition be denied and that this action be dismissed.

Furthermore, pursuant to Rule 11(a) of the Rules Governing 

§ 2254 Cases, the undersigned recommends that a certificate of 

appealability (hereinafter COA) be denied. 28 U.S.C. foll. § 

2254, Rule 11(a) (“The district court must issue or deny a 

certificate of appealability when it enters a final order 

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adverse to the applicant”). The habeas corpus statute makes 

clear that an applicant is entitled to appeal a district court’s 

denial of his habeas corpus petition only where a circuit 

justice or judge issues a COA. 28 U.S.C. § 2253(c)(1). A COA 

may issue only where “the applicant has made a substantial 

showing of the denial of a constitutional right.” 28 U.S.C. § 

2253(c)(2). When the merits of a claim are reached, a COA 

should issue only when the petitioner demonstrates "that 

reasonable jurists would find the district court's assessment of 

the constitutional claims debatable or wrong." Slack v. 

McDaniel, 529 U.S. 473, 484 (2000). As the Court has found that 

Dean failed to assert sufficient facts to support a claim of 

constitutional error, “[t]he petitioner must demonstrate that 

reasonable jurists would find the district court's assessment of 

the constitutional claims debatable or wrong.” Slack, 529 U.S. 

at 484. It is suggested that Petitioner cannot make that 

showing.

CONCLUSION

It is recommended that Petitioner’s petition for writ of 

habeas corpus, filed pursuant to 28 U.S.C. § 2254, be denied and 

that this action be dismissed. It is further recommended that

any certificate of appealability filed by Petitioner be denied 

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as he is not entitled to appeal in forma pauperis. Finally, it 

is recommended that judgment be entered in favor Respondent, 

Cynthia White, and against Petitioner, Lee Vernon Dean.

NOTICE OF RIGHT TO FILE OBJECTIONS

A copy of this report and recommendation shall be served on 

all parties in the manner provided by law. 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. See

28 U.S.C. § 636(b)(1); FED.R.CIV.P. 72(B); S.D. ALA. L.R.72.4. 

In order to be specific, an objection must identify the specific 

finding or recommendation to which objection is made, state the 

basis for the objection, and specify the place in the Magistrate 

Judge’s report and recommendation where the disputed 

determination is found. An objection that merely incorporates 

by reference or refers to the briefing before the Magistrate 

Judge is not specific.

DONE this 9th day of April, 2015.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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