IN	THE	UNITED	STATES	DISTRICT	COURT	FOR	THE

SOUTHERN	DISTRICT	OF	ALABAMA

SOUTHERN	DIVISION

VERNON	DEAN,

Petitioner,

v.

CYNTHIA	WHITE,

Respondent,

)

)

)

)

)

)

)

)

)

CIVIL	ACTION	NO.

14-00419-CB-M

ORDER

This	matter	is	before	the	Court	on	Petitioner’s	objection	to	the	Magistrate	

Judge’s	Report	and	Recommendation	recommending	that	the	petition	for	habeas	

corpus	relief	be	denied	and	dismissed,	that	a	certificate	of	appealability	be	denied,	

and	that	permission	to	proceed	in	forma	pauperis	on	appeal	also	be	denied.		

Petitioner	has	filed	an	objection	in	which	he	argues	that	he	is	entitled	to	an	

evidentiary	hearing.		After de	novo of	the	issues,

1 the	Court	adopts the	Report	and	

Recommendation	with	the	following	additions.

Petitioner	raised	three	claims	in	the	habeas	petition filed	in	this	Court:		(1)	

the	State	relied	on	evidence	obtained	in	violation	of	his	Fourth	Amendment	rights;	

(2)	the	State	failed	to	disclose	exculpatory	information	in	violation	of	Brady	v.	

Maryland;	and	(3)	ineffective	assistance	of	counsel.		In	her	answer,	Respondent	has	

acknowledged	all	three	claims	but	has	specifically	addressed	only	one—ineffective	

assistance	of	counsel.		To	further	complicated	matters,	Respondent’s	answer	

																																																							 1 Because	Petitioner’s	objections	do	not	address	particular	findings	or	

conclusions	in	the	Report	and	Recommendation,	the	Court	has	conducted	a	de	novo

review	of	all	issues.

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erroneously	states:		“Dean	appears	to	have	exhausted	his	claims	through	one	

complete	round	of	state	court	review	as	required	by	28	U.S.C.	§	2254(b)(1).”		

(Answer	¶	13,	Doc.	19.)		Despite	that	erroneous	acknowledgement,	Respondent	

does	not	address	the	merits	of	either claim,	neither	of	which was	raised	in state	

court.

2		

In	the	Anti-Terrorism	and	Effective	Death	Penalty	Act	(AEDPA),	Congress	

placed	certain	constraints	on	federal	habeas	review,	including	a	specific	

requirement	that	no	application	for	writ	of	habeas	corpus	be	granted	to	a	person	in	

state	custody	unless	“the	applicant	has	exhausted	the	remedies	available	in	.	.	.	

[S]tate	court.”	28		U.S.C.	§	2254(b)(1)(A).3		“Exhaustion	of	state	remedies	requires	

that	the	state	prisoner	‘fairly	present[t]	federal	[constitutional]	claims	to	the	state	

court	in	order	to	give	the	State	the	opportunity	to	pass	upon	and	correct	alleged	

violations	of	its	prisoners’	federal	rights.’”		Snowden	v.	Singletary,	135	F.3d	732,	735	

(1998)	(quoting	Duncan	v.	Henry,	513	U.S.	364,	365	(1995)).		Furthermore,	“[i]t	is	

																																																							 2 Neither	claim	was	asserted	in	the	Rule	32	petition.		Facts	similar	to	those	

underlying	the	Brady	claim	were	raised	in	support	of	an	ineffective	assistance	of	

counsel	claim	at	the	Rule	32	hearing.		At	the	beginning	of	the	hearing,	Judge	Lockett	

stated	that	Petitioner	“basically	ha[d]	a	general	contention	of	you	were	denied	

effective	assistance	of	counsel”	based	on	“a	photo	spread”	and	“the	lack	of	

investigation	about	into	[sic]	a	Mr.	Townsend.”		(R.	32	Tr.	4;	Doc.	19-1	at	115.)	Judge	

Locket	asked	whether	there	was	“[a]nything	else	that	I	missed?”		(Id.)	Petitioner	

responded:		“Since	I’ve been	incarcerated	I	also	learned	that	during	the	day	of	my	

trial	there	was	evidence	that	was	omitted	concerning	a	cellphone,	checkbook,	and	

stuff	like	that.”	(Id.)		Petitioner	did	not	assert	that	the	prosecution	had	suppressed	

the	evidence,	and	no	further mention	of	that	claim	was	made	during	the	

proceedings.		Nor	is	the	claim	mentioned	in	Judge	Lockett’s	Rule	32	order	or	in	the	

order	issued	by	Alabama	Court	of	Criminal	Appeals	affirming	the	Rule	32	denial.

3 There	are	narrow	exceptions	to	the	exhaustion	requirement	not	applicable	

here,	i.e,	“an	absence	of	available	State	corrective	process[	]	or	[	]	circumstances	[	]	

that	render	such	process	ineffective	to	protect	the	rights	of	the	applicant.”		28	

U.S.C.A	§	2254(b)(1)(B).

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well	established	that	when	a	petitioner	has	failed	to	exhaust	his	claim	by	failing	to	

fairly	present	it	to	the	state	courts	and	the	state	court	remedy	is	no	longer	available,	

the	failure	also	constitutes	a	procedural	bar.” 4 McNair	v.	Campbell,	416	F.3d	1291,	

1305	(11th	Cir.	2005).		Petitioner	‘s	Fourth	Amendment	and	Brady	claims can	no	

longer	be	raised	in	state	court	due	to	Rule	32’s	prohibition	on	successive	petitions	

and/or	Rule	32’s limitations	period.		See	Ala.	R.	Crim.	P.	32(b)	(successive	petitions);	

Ala.	R.	Crim.	P.	32(c)	(limitations	period).		These	claims	are,	therefore,	procedurally	

barred. 5

With	respect	to	the	ineffective	assistance	of	counsel	claims, which	were	

exhausted in	state	court,	the	standard	of	review	under	AEDPA	requires	the	Court	to	

“accord	a presumption	of	correctness	to	the state	court’s	factual	findings.” Mason	v.	

Allen,	605	F.3d	1114,	1118	(11th Cir.	2010)	(per	curiam).		The	state	court’s	decision	

on	the	merits	of	a	claim	cannot	be	the	basis	for	habeas	relief	unless	the	adjudication	

of	the claim	“resulted	in	a	decision	that	was	contrary	to, or	involved	an	

unreasonable	application	of,	clearly	established	Federal	law,	as	determined	by	the	

Supreme	Court	of	the	United	States”	or	“resulted	in	a	decision	that	was	based	on	an	

unreasonable	determination	of	the	facts	in	light	of	the	evidence	presented.”		28	

U.S.C.	§	2254(d)(1)	&	(2).	A	decision	is	“contrary	to”	federal	law	“if	the	state	court	

arrives	at	a	conclusion	opposite	to	that	reached	by	[the	United	States	Supreme	

																																																							 4 It	is	possible	for	the	State	to	waive	the	exhaustion	requirement	but	only	if	

“the	State,	through	counsel,	expressly	waives	the	requirement.”		28	U.S.C.	§	

2254(d)(3).		The	Court	does	not	take	Respondent’s	erroneous	statement	that	

Petitioner	“appears	to	have	exhausted	his	claims”	as	an	express	waiver.

5 The	Magistrate	Judge,	likely	out	of	an	abundance	of	caution,	addressed	the	

merits	of	the	Brady claim.		This	Court	alternatively	concludes	that	the	Brady claim	is	

procedurally	barred.

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Court]	on	a	question	of	law	or if	the	state	court	decides	a	case	differently	than	[the	

United	States	Supreme	Court] has	on	a	set	of	materially	indistinguishable	facts.”		

Williams	v.	Taylor,	529	U.S.	362,	412-13	(2000).		A	decision	involves	an	

“unreasonable	application	“	of	federal	law	“if	the	state	court	identifies	the	correct	

governing	legal	principle	.	.	.	but	unreasonably	applies	that	principles	to	the	facts	of	

the	prisoner’s	case.”		Id.

The	Rule	32	court	concluded	that	the	Petitioner	had	failed	to	meet	his	burden	

of	proof	with	respect	to	his	ineffective	assistance	of	counsel	claims.		Petitioner	

presented	no	evidence other	than	his	own	testimony, which	the	Rule	32	court	found	

to	be	“conclusory”	and “unsupported	by	evidence.”		This Court	cannot	say	that	the	

state	court’s	factual	determination	was	unreasonable	in	light	of	the	evidence or	lack	

thereof.		Nor	can	the	Court	say	that	the denial	of	the	ineffective	assistance	of	counsel	

claims	based	on	this	evidence	was	either	contrary	to	or	involved	an	unreasonable	

application	of	Strickland and	its	progeny.

For	the	reasons	set	forth	above,	the	Court	overrules Petitioner’s	objections	

and	adopts	the	Report	and	Recommendation	of	the	Magistrate	Judge	that	the	

petition	be	denied	and	that	this	action	be	dismissed	with	prejudice.

DONE and	ORDERED this	the	2nd day	of	June,	2015.

s/Charles	R.	Butler,	Jr.

Senior	United	States	District	Judge

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