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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

WILLIE KEVIN WILLIAMS, :

 :

Petitioner. :

 :

vs. : CIVIL ACTION 15-0048-CG-M

 :

KENNETH JONES, :

 :

Respondent. :

REPORT AND RECOMMENDATION

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

Kenneth Jones, and against Petitioner, Willie Kevin Williams.

Petitioner was convicted of first degree robbery, first 

degree rape, and second degree kidnaping in the Mobile County 

Circuit Court on September 25, 2012; on October 18, 2012, he was 

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sentenced to three consecutive life sentences in the state 

penitentiary (Doc. 3, p. 2; Doc. 22, p. 1). Appeal was made to 

the Court of Criminal Appeals of Alabama that affirmed the 

conviction and sentence (Doc. 22, Exhibit D). Williams’s 

application for rehearing was overruled (Doc. 22, Exhibit E). 

On November 15, 2013, the Alabama Supreme Court denied his 

petition for certiorari and a certificate of judgment was issued 

(Doc. 22, Exhibit F). 

Petitioner filed a State Rule 32 petition that was denied 

by the Circuit Court on March 26, 2014 (Doc. 3, p. 4; Doc. 22, 

p. 2). The Alabama Court of Criminal Appeals affirmed the lower 

court decision (Doc. 22, Exhibit J) and then denied Williams’s 

application for rehearing (see Doc. 22, p. 2). The Alabama 

Supreme Court denied his petition for certiorari and entered a 

certificate of judgment on January 16, 2015 (Doc. 22, Exhibit 

L). 

Petitioner filed a complaint with this Court on January 26, 

2015 (see Doc. 1, p. 11), raising the following claims: (1) His 

trial attorney rendered ineffective assistance; (2) he is 

actually innocent of the convictions; (3) the trial court denied 

his motion to compulsory process as to certain witnesses and 

records; (4) the trial court improperly admitted certain 

evidence; and (5) the trial judge committed judicial misconduct

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(Doc. 3; cf. Doc. 22, pp. 3-4; see also Docs. 9, 18, 20, 24, 28, 

29).1

The Court notes, however, that Respondent has asserted that 

Petitioner has procedurally defaulted on each of the claims 

raised in this Court. A United States Supreme Court decision, 

Harris v. Reed, 489 U.S. 255 (1989), has discussed procedural 

default and stated that "a procedural default does not bar 

consideration of a federal claim on either direct or habeas 

review unless the last state court rendering a judgment in the 

case 'clearly and expressly' states that its judgment rests on a 

state procedural bar." Harris, 489 U.S. at 263, citing Caldwell 

v. Mississippi, 472 U.S. 320, 327 (1985), quoting Michigan v. 

Long, 463 U.S. 1032, 1041 (1983). However, in Teague v. Lane, 

489 U.S. 288 (1989), the U.S. Supreme Court stated that the rule 

of Harris is inapplicable where a habeas petitioner did not 

raise a particular claim in state courts so that they never had 

the opportunity to address the claim. 

Petitioner’s first claim is that his attorney rendered 

ineffective assistance. The evidence of record demonstrates 

that although Williams raised his ineffective assistance of 

counsel claim in his State Rule 32 petition, he abandoned it on 

 1

The Court understands Petitioner’s assertions, in Document 20, 

to raise a claim that the trial judge improperly admitted certain 

evidence. In Document 28, Williams asserts judicial misconduct.

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the appeal of its dismissal (Doc. 22, Exhibits H, J). Because 

Petitioner did not pursue this claim in a timely fashion before 

the Alabama Court of Criminal Appeals, it is procedurally 

defaulted under O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999) 

(“[W]e conclude that state prisoners must give the state courts 

one full opportunity to resolve any constitutional issues by 

invoking one complete round of the State’s established appellate 

review process”).

Williams’s second claim is that he is actually innocent of 

his convictions. The evidence shows that the Alabama Court of 

Criminal Appeals, on the review of the dismissal of his Rule 32 

petition, found this claim to be procedurally defaulted as it 

had not been properly raised in the Rule 32 petition in the 

Circuit Court (Doc. 22, Exhibit J). This claim is procedurally 

barred under Harris. 

Petitioner’s third claim is that the trial court denied his 

motion to compulsory process as to certain witnesses and 

records. The Alabama Court of Criminal Appeals, on the review 

of the dismissal of his Rule 32 petition, found this claim to be 

procedurally defaulted as it had not been properly raised in the 

Rule 32 petition in the Circuit Court (Doc. 22, Exhibit J). 

This claim is procedurally barred under Harris.

Williams’s fourth claim is that the trial judge improperly 

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admitted certain evidence. More specifically, Petitioner 

asserts that the trial judge failed to hold a hearing, outside 

the presence of the jury, to see if certain evidence was 

admissible (Doc. 20). The evidence shows that although 

Williams, on the direct appeal of his conviction, raised other 

evidentiary claims regarding sufficiency of the evidence, 

improper identification, and chain-of-custody, this claim was 

not raised (see Doc. 22, Exhibit D). Likewise, the Court finds 

no evidence that this claim was raised in his Rule 32 petition; 

it is readily apparent that it was not raised in the appeal of 

his Rule 32 petition (Doc. 22, Exhibits H, J). This claim is 

procedurally defaulted under Teague.

Williams’s final claim is that the trial judge committed 

judicial misconduct. More specifically, Petitioner asserts that 

the trial judge instructed a particular witness how to testify 

(Doc. 28). The evidence shows that Williams has not previously 

raised this claim in the State courts (see Doc. 22, Exhibits D, 

H, J). This claim is procedurally defaulted under Teague.

After reviewing the pleadings of record, the Court finds 

that all of the claims raised in this habeas petition are 

procedurally defaulted. 

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However, all chance of federal review is not precluded. 

The Eleventh Circuit Court of Appeals, in addressing the review 

of these claims, has stated the following:

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

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

progeny, noncompliance with a state 

procedural rule generally precludes federal 

habeas corpus review of all claims as to 

which noncompliance with the procedural rule 

is an adequate ground under state law to 

deny review. If a petitioner can 

demonstrate both cause for his noncompliance 

and actual prejudice resulting therefrom, 

however, a federal court can review his 

claims. 

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

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

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

failure to consider the claims will result in a fundamental 

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

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

The only reason given by Petitioner for his failure to 

raise these claims in the State courts in a timely manner comes 

through his actual innocence claim (Doc. 24). Though he raises 

it as a claim rather than as a gateway to avoid the procedural 

default bar, the Court will, nevertheless, examine it herein.

The U.S. Supreme Court, in Schlup v. Delo, 513 U.S. 298, 

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324 (1995), has stated that, in raising an actual innocence 

defense to a procedural bar, a petitioner must “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.” The evidence presented “must show that it 

is more likely than not that no reasonable juror would have 

found petitioner guilty beyond a reasonable doubt.” Schlup, 513 

U.S. at 327. In other words, Petitioner must persuade this 

Court, “that, in light of the new evidence, no juror, acting 

reasonably, would have voted to find him guilty beyond a 

reasonable doubt.” Schlup, 513 U.S. at 329. A court can 

consider constitutional infirmities only after this threshold 

has been met.

In this action, the Court notes that Petitioner offers only 

assertions of his innocence. There is no offer of new evidence. 

The Court finds that Petitioner has made no showing of actual 

innocence and has not overcome the procedural default bar before 

him. The Court finds that the claims raised in this action are 

barred by procedural default and will not address their merit.

In summary, Williams has raised five different claims in 

bringing this action. All claims are procedurally defaulted. 

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Therefore, it is recommended that this habeas 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 

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). Where a habeas petition is denied on procedural 

grounds, “a COA should issue [only] when the prisoner shows . . 

. that jurists of reason would find it debatable whether the 

petition states a valid claim of the denial of a constitutional 

right and that jurists of reason would find it debatable whether 

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

v. McDaniel, 529 U.S. 473, 484 (2000). As Williams has not 

sought timely review of the claims brought in this action in the 

State courts, a reasonable jurist could not conclude that this 

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Court errs in dismissing the instant petition or that Petitioner 

should be allowed to proceed. Slack, 529 U.S. at 484 (“Where a 

plain procedural bar is present and the district court is 

correct to invoke it to dispose of the case, a reasonable jurist 

could not conclude either that the district court erred in 

dismissing the petition or that the petitioner should be allowed 

to proceed further”). 

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 

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

is recommended that judgment be entered in favor Respondent, 

Kenneth Jones, and against Petitioner, Willie Kevin Williams.

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 

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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. The parties 

should note that under Eleventh Circuit Rule 3-1, “[a] party 

failing to object to a magistrate judge's findings or 

recommendations contained in a report and recommendation in 

accordance with the provisions of 28 U.S.C. § 636(b)(1) waives 

the right to challenge on appeal the district court's order 

based on unobjected-to factual and legal conclusions if the 

party was informed of the time period for objecting and the 

consequences on appeal for failing to object. In the absence of 

a proper objection, however, the court may review on appeal for 

plain error if necessary in the interests of justice.” 11th 

Cir. R. 3-1. 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 12th day of June, 2015.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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