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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

TIMOTHY WAYNE WILLIAMS, :

 :

Petitioner. :

 :

vs. : CIVIL ACTION 15-0126-WS-M

 :

CYNTHIA STEWART, :

 :

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), S.D. Ala. Gen.L.R. 72(a)(2)(R), 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 this 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 Stewart and against Timothy Wayne Williams.

Petitioner was convicted of first-degree rape in the Mobile 

County Circuit Court on April 12, 2011 for which he received a 

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sentence of ten years in the state penitentiary (Doc. 1, p. 3; 

Doc. 6, pp. 1-2). 

On May 12, 2011, Williams, who had a new attorney, filed a 

Motion to Set Aside the Judgment or, in the Alternative, Grant a 

New Trial, a Motion that was later amended (Doc. 6, Exhibit A, 

Volume 1, pp. 39-40, 46). Following a hearing on one of the 

issues, the Motion was denied in its entirety (see id. at pp. 

27-29).

With a new attorney, Williams appealed, but the Court of 

Criminal Appeals of Alabama affirmed the conviction and sentence 

on May 18, 2012 (Doc. 6, Exhibit D). On November 30, 2012, the 

Supreme Court of Alabama affirmed the conviction (Doc. 6, 

Exhibit E); on the same date, the certificate of judgment was 

issued (Doc. 6, Exhibit F).

On May 17, 2013, Williams, with a new attorney, filed a 

State Rule 32 petition (Doc. 6, Exhibit G, pp. 15, 19-28). It 

was denied on January 10, 2014 (id. at p. 38-43). On August 1, 

2014, the Alabama Court of Criminal Appeals affirmed the lower 

court’s decision (Doc. 6, Exhibit J). On October 10, 2014, the 

Alabama Supreme Court denied certiorari (Doc. 6, Exhibit K) and 

the Certificate of Judgment was issued (Doc. 6, Exhibit L).

With the aid of a new attorney, Petitioner filed a 

complaint with this Court on March 9, 2015, raising the claim 

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that his trial and appellate attorneys rendered ineffective 

assistance. More specifically, Williams asserted that his trial 

attorney failed to: (1) properly investigate the facts 

surrounding the incident for which he was convicted; and (2) 

call a corroborating witness to testify (Doc. 1). He claims 

that his appellate attorney erred in not raising an ineffective 

assistance of counsel claim on appeal

On November 10, 2015, the undersigned entered a Report and 

Recommendation finding that Williams’s claims were procedurally 

defaulted and that the Court was precluded from considering them 

as he had not overcome certain necessary procedural hurdles to 

overcome the default (Doc. 14). Following Petitioner’s 

Objection to that Report and Recommendation (Doc. 17), Chief 

United States District Judge Steele Ordered that this action be 

remanded to the undersigned for further consideration (Doc. 18). 

In that Order, Steele acknowledged that Williams did not 

question the finding that his claims were procedurally 

defaulted; rather, Petitioner argued that he had demonstrated 

cause for that default and that he had been prejudiced and 

suffered a fundamental miscarriage of justice in this Court’s 

failure to consider his claims (Doc. 18, p. 1; cf. Doc. 17). 

As Williams does not challenge the finding that his claims 

are procedurally defaulted in the state courts (see Doc. 18, p. 

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1), it will be unnecessary herein to explain how those claims 

came to be considered defaulted. It is noted, however, that 

where state courts have found claims of a petitioner to be 

procedurally defaulted and those courts have refused to address 

the merits of those claims, as is the case here, 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, 1379 (11th Cir.) (citations 

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

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

failure to consider the claims will result in a fundamental 

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

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

In this action, Petitioner has argued that he demonstrated 

cause for that default and that he has been prejudiced and 

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suffered a fundamental miscarriage of justice in this Court’s 

failure to consider his claims (Doc. 18, p. 1; cf. Doc. 17). 

Williams’s arguments, and Judge Steele’s remand, rely on the 

United States Supreme Court decision, Martinez v. Ryan, --- U.S. 

---, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), that held as 

follows: 

Where, under state law, claims of 

ineffective assistance of trial counsel must 

be raised in an initial-review collateral 

proceeding, a procedural default will not 

bar a federal habeas court from hearing a 

substantial claim of ineffective assistance 

at trial if, in the initial-review 

collateral proceeding, there was no counsel 

or counsel in that proceeding was 

ineffective.

Martinez, 132 S.Ct. at 1320 (emphasis added). That Court 

defined initial review collateral proceeding as “collateral 

proceedings which provide the first occasion to raise a claim of 

ineffective assistance at trial.” Martinez, 132 S.Ct. at 1315. 

Martinez went on to state the following: “Our holding here 

addresses only the constitutional claims presented in this case, 

where the State barred the defendant from raising the claims on 

direct appeal.” Martinez, 132 S.Ct. at 1320 (emphasis added).

Alabama’s law, with regard to this issue, is different than 

that of Arizona, the law considered in Martinez. Under Alabama 

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law, “[a]ny claim that counsel was ineffective must be raised as 

soon as practicable, either at trial, on direct appeal, or in 

the first Rule 32 petition, whichever is applicable.” 

Ala.R.Crim.P. 32.2(d).1 Case law demonstrates that this rule was 

the practice even before it was adopted. See Gray v. State, 581 

So.2d 1136 (Ala. Crim. App. 1990) (“Appellant’s claim concerning 

ineffective assistance of counsel also should have been raised 

on direct appeal, since he was represented on direct appeal by 

different counsel; thus, it is also procedurally defaulted”).

In this action following the conviction, Petitioner’s new 

attorney, in his Motion for a New Trial, brought an ineffective 

assistance of counsel claim for the trial attorney’s failure to 

call a particular fact witness to testify (Doc. 1, p. 7; see

Doc. 6, Exhibit A, Volume 1, pp. 27-29). On direct appeal, with 

a new attorney, no claim of ineffective assistance of counsel, 

against any attorney, was raised (see Doc. 6, Exhibit D). 

Because Petitioner had two different opportunities to raise his 

ineffective assistance of trial counsel claim before raising the 

claim on collateral review, Martinez is inapplicable here.2

 1

Williams acknowledges this Rule (Doc. 25, p. 5), though his 

arguments ignore—and argue against—its applicability in this action. 2

Williams acknowledges that his appellate attorney could have 

raised the ineffective assistance of trial counsel claim, admitting, 

albeit unwittingly, that Martinez is inapplicable here (Doc. 25, pp. 

2-3) (“Williams does not dispute that new trial counsel failed to 

properly represent him and to present and preserve the issue of 

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The undersigned finds that Williams has not demonstrated 

cause for his procedural default as required under Wainwright. 

Martinez is not applicable because Alabama does not require that 

a criminal defendant wait to raise a claim of ineffective 

assistance of trial counsel in his first Rule 32 petition. The 

Supreme Court dictates that circumstance. Martinez, 132 S.Ct. 

at 120 (“Where, under state law, claims of ineffective 

assistance of trial counsel must be raised in an initial-review 

collateral proceeding . . .”). Martinez, in this single 

sentence fragment, precludes the cause Petitioner seeks on the

set of facts presented herein. This Court has previously 

reached the same conclusion: 

The Martinez qualification does not 

automatically apply, however. Most 

importantly here, Martinez by its terms 

applies only “[w]here, under state law, 

claims of ineffective assistance of trial 

counsel must be raised in an initial-review 

collateral proceeding” and cannot be raised 

on direct appeal. 132 S.Ct. at 1320 

(emphasis added); accord Hittson v. GDCP 

Warden, –––F.3d ––––, 2014 WL 3513033 at *42 

(11th Cir.2014) (“[T]he Martinez exception 

to Coleman's general rule is limited to 

circumstances where state law ‘requires a 

prisoner to raise an ineffective-assistance-

 ineffectiveness of trial counsel for failure to investigate 

specifically, but Mr. Williams avers that the issue was sufficiently 

raised through the motion for new trial that appellant counsel could 

have raised it on appeal. Appellant counsel could have argued that 

the Motion for New Trial was improperly denied but does not appear to 

have even addressed the same on direct appeal”).

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of-trial-counsel claim in a collateral 

proceeding.’”) (quoting Martinez, 132 S.Ct. 

at 1318) (emphasis added).

Diggs v. Mitchem, C.A. 03-0104-WS-M, 2014 WL 4202476, at *4 

(S.D. Ala. August 22, 2014).3

Petitioner also seems to argue that Martinez is applicable 

because of the unbroken string of attorneys representing him who 

all committed ineffective assistance (Doc. 25, p. 8) (“it is 

clear that 1. Trial counsel was ineffective, 2. New trial 

counsel was ineffective, 3. Appellant counsel could have raised 

the issue and 4. Rule 32 counsel was clearly ineffective for not 

raising any and all issues to which Williams would have been 

entitled to relief”). More pointedly, Williams argues that 

“[i]n this case, regardless of whether new trial counsel, 

appellant counsel or Rule 32 counsel, post-conviction counsel 

failed to fully and completely review the record and raise all 

claims available to Williams therefore [sic] the rule of 

Martinez extends to this situation” (Doc. 25, p. 9).4

 3

This holding was not reached in a Section 2254 action, but in a 

Motion for Relief from Final Judgment under Fed.R.Civ.P. 60(b). 

The updated Hittson cite is Hittson v. GDCP Warden, 759 F.3d 

1210, 1261 (11th Cir. 2014), cert. denied, 135 S.Ct. 2126 (2015).

Finally, Coleman references Coleman v. Thompson, 501 U.S. 722, 

752 (1991).

4

Petitioner’s assertion (Doc. 25, pp. 9-10) that this “domino 

effect” found a sympathetic voice in Wessinger v. Cain, 2012 WL 

1752683, at *2 (M.D. La. May 16, 2012) under Martinez fails to 

acknowledge that Court’s finding of “a jurisprudential rule in 

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Petitioner has misread Martinez. His interpretation would 

lead to—not an exception to, but—an evisceration of Coleman, 

offering a new path of federal review to every Section 2254 

petitioner who claims, at each step of the judicial process,

that no attorney provided him or her effective representation. 

Martinez offers no such opportunity as shown in its language: 

“Coleman held that an attorney’s negligence in a postconviction 

proceeding does not establish cause, and this remains true 

except as to initial-review collateral proceedings for claims of 

ineffective assistance of counsel at trial.” Martinez, 132 

S.Ct. at 1319. Again, the undersigned finds that Williams has 

failed to demonstrate cause for his noncompliance with Alabama 

law under Wainwright and Booker.

Though it was determined that Petitioner failed to prove 

one of the two necessary requirements to overcome procedural 

default, the undersigned will, nevertheless, discuss the 

prejudice Williams asserts he suffered. The main prejudice 

asserted was that his trial attorney did not reasonably 

investigate the possible testimony of Petitioner’s son, Todd 

Norman, who could have been—but was not—called as a fact witness

to corroborate his testimony and dispute that of the victim 

 Louisiana that ineffective assistance claims are generally best suited 

for post-conviction proceedings.” Louisiana law is inapplicable here.

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(Doc. 1, pp. 7, 15, 19, 24; Doc. 10, pp. 4-6; Doc. 17, p. 8; 

Doc. 25, pp. 1, 5, 12). Williams’s recitation of facts, as set 

out in his Petition, are as follows:

Mr. Williams was charged with one count 

of Rape in the First Degree, by forcible 

compulsion. The State presented only one 

witness, [K.W.]5. The state offered no 

documentary, medical, forensic or physical 

exhibits. Defense counsel put on only one 

witness, Mr. Williams. Defense counsel 

offered no documentary, medical, forensic or 

physical exhibits. The complainant 

testified that sometime in January, 2008, 

she went to Mr. William’s home, to go deer 

hunting. Mr. Williams was her uncle, and 

she sometimes stayed at that home. Aunt 

Laura (Williams’s wife) and her cousin, Todd 

(Norman). (R-82, 83) also lived there. She 

testified that she had been to the home the 

weekend before, with her brothers, Matt and 

Dylan, and two of their friends. (R-85) The 

following weekend, she went to a hunting 

camp with Mr. Williams then came back to the 

Williams home to spend the night. She slept 

on a couch in the living room. (R-86)

She testified that in the morning/ she 

got up and went into the bathroom. (R-87) 

She testified that when she came out of the 

bathroom she passed a recliner chair in 

which Mr. Williams was sleeping. She said 

Mr. Williams grabbed her and pushed her 

down. Then that “he raped me.” (R-89, 90 1 

91)

She then testified that he didn’t say 

anything during the alleged attack/ however/ 

afterward, pulled her towards him and told 

her not to tell anybody, because he didn’t 

want to go to jail. Also that he would kill 

 5

The Court will use initials to identify the victim as she was 

sixteen years old at the time of the rape (see Doc. 1, p. 6).

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himself/ and that he wanted to take her to 

Mexico and marry her. (R-92) She testified 

that there were no express threats made to 

her and that Mr. Williams later drove her 

home that day. (R-93)

On cross-examination, defense counsel 

Yazdi violated the trial court’s previous 

ruling under the Rape Shield law, by asking 

her if she lost her virginity that day. The 

prosecutor asked that Yazdi be held in 

contempt of court. (R-95) Yazdi then 

attempted to question her as to whether her 

mother would not let her see her boyfriend. 

The Court disallowed the question, as based 

on hearsay. (R-96, 97)

The trial Court directed Yazdi not to 

question the complainant about prior sexual 

conduct, that he could explore whether she 

had reason to fabricate the rape complaint, 

because she was not allowed to see her 

boyfriend. (R-105, 106, 107). This was 

because the theory of the defense was that 

she had fabricated the incident because Mr. 

Williams, later, in April, 2008, had 

confronted her about sneaking out of the 

Williams home, overnight, to visit her 

boyfriend. (R-113) Inexplicably, Yazdi then 

decided to discontinue the crossexamination, although that line of inquiry 

was the linchpin of Mr. William’s defense. 

(R-108)

The State then rested. Mr. Williams 

testified in his own defense. He testified 

that his niece had spent the night in the

Williams home “too many (times) for me to 

count”. (R-111) He testified that he had 

never had sexual contact with her, and 

believed that she was making the incident 

up, because, on one occasion, months later, 

he confronted her about sneaking out of the 

house, at night, to see her boyfriend.

He testified that his son, Todd Norman, 

had opened the front door for her to come 

back in the next day while Mr. Williams and 

his wife were not home, and informed Mr. 

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Williams. (R113) He testified to an 

argument with complainant, where Mr. 

Williams told complainant that he was going 

to tell her mother. Complainant called her 

mother a “whore” (R. 120) and threatened him 

that “she would say something about me if I 

ever told her mom”. (R-111, 112, 113) He 

testified that she continued to spend the 

night at the Williams home, occasionally, 

until the rape allegation occurred several 

months later (April 2008). (R-117)

Mr. William’s son, Todd Norman was 

available to testify at trial, prepared to 

offer corroborative testimony.

(Doc. 1, pp. 11-13). 

Petitioner states that the victim, at trial, testified that 

she never snuck out of the house (Doc. 1, p. 6). Williams 

states his testimony, regarding this issue, was as follows:

“I said, you know, it’s not going to happen 

here. You’re not sneaking out of my home at 

any given time. And I jumped all over her 

about it, you know, just like a dad with his 

daughter. It’s not happening here, ever. 

And she got mad at me and told me that she 

would say something about me if I ever told 

her mom.” (R. 113) The Petitioner had 

testified that his son was the one who 

alerted him that the witness/alleged victim 

had snuck out: “My son let her in. He told 

me about it.” (R. 113).

(Doc. 1, p. 7). Petitioner argues that his stepson’s testimony 

was necessary because “[t]rial counsel knew, or should have 

known, that the trial court was going to instruct the jury that 

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they could convict solely on the testimony of the alleged victim 

and therefore should have know the importance of corroborative 

testimony” (Doc. 1, p. 24). 

On August 11, 2011, a hearing was held on Williams’s new 

attorney’s Motion for a New Trial that included a claim of 

ineffective assistance of trial counsel (Doc. 6, Exhibit A, 

Volume 3, p. 55-108).6 Petitioner’s stepson, Todd Norman, 

testified that his cousin, K.W., stayed at his house from timeto-time over a period of months in 2008-09 (id. at pp. 77, 79; 

see generally pp. 77-81). One night, K.W. snuck out and came 

back the next morning and knocked on the door; his parents were 

not home, but Todd let her in.7 K.W. told him that she had been 

out the night before with her boyfriend, drinking at a bar (id.

at p. 78). Todd told his father about this the same day and he 

got on to her about sneaking out; Todd also told this 

information to Williams’s trial attorney, one or two times, but 

he replied that he did not need to testify to this information 

because it would hurt Williams more than it would help him (id.

at pp. 78-79). The Witness testified that this event occurred 

way before his father was arrested (id. at 80-81).

 6

This cite reflects the way exhibits are numbered once submitted 

to this Court and do not correspond to any prior court’s page numbers. 7

The Witness did not testify that he lived with his mother and 

father but the Court, based on Williams’s arguments herein, presumes 

that would have been his testimony.

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The United States Supreme Court, in Strickland v. 

Washington, 466 U.S. 668 (1984), defined the showing a habeas 

petitioner must make to prevail on an ineffective assistance 

claim:

First, the defendant must show that 

counsel's performance was deficient. This 

requires showing that counsel made errors so 

serious that counsel was not functioning as 

the "counsel" guaranteed the defendant by 

the sixth amendment. Second, the defendant 

must show that the deficient performance 

prejudiced the defense. This requires 

showing that counsel's errors were so 

serious as to deprive the defendant of a 

fair trial, a trial whose result is 

reliable. Unless a defendant makes both 

showings, it cannot be said that the 

conviction . . . resulted from a breakdown 

in the adversary process that renders the 

result unreliable. 

Id. at 687 (emphasis added). The undersigned will examine 

Williams’s claims, focusing on the prejudice prong of 

Strickland.

The undersigned finds that the trial court attorney’s 

failure to call Williams’s stepson to testify did not prejudice

him. The potential witness’s testimony, at most, was as 

follows: that he allowed his cousin, the Victim, into the house 

one morning after she had snuck out the night before and drank

in a bar with her boyfriend; that he told Williams about letting 

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her in; and that Williams told her not to sneak out again. The 

stepson did not testify as to any response—or threat—by his 

cousin against Williams. Likewise, he provided no information 

whatsoever about the circumstances concerning the rape. While 

the potential witness’s testimony would have duplicated some of 

Petitioner’s own testimony, it brought no new evidence before 

the jury. The undersigned finds that Williams has not 

demonstrated that his trial attorney’s decision not to call his 

stepson to testify on his behalf has caused him “actual 

prejudice” as required in Strickland. 

Williams has also claimed that his trial counsel rendered 

ineffective assistance in failing to properly investigate the 

circumstances surrounding the incident for which he was 

convicted. Petitioner specifically asserts that his attorney 

presented no physical, forensic, documentary, or medical 

evidence on his behalf (Doc. 1, pp. 6, 11). 

The undersigned notes that Williams, in his assertion of 

facts, states that the alleged rape took place in January 2008,

that the Victim’s threat against him took place in April 2008, 

and that she did not report the rape until six months after it 

allegedly happened (Doc. 1, pp. 6, 11-12). The undersigned is 

unsure what physical, forensic, documentary, or medical evidence 

could have been brought to the jury’s attention under those 

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circumstances. In any event, Petitioner has not proffered any 

evidence to the Court and has not even suggested what might have 

been brought to the jury’s consideration. 

The undersigned notes that Petitioner argues, as part of 

his failure-to-investigate claim, that his attorney should have 

called witnesses to testify as to his good character (see Doc. 

1, p. 21-24). More specifically, Williams points to “potential 

witnesses familiar with aspects of the client’s life history 

that might affect the likelihood that the client committed the 

charge offense(s), and the degree of culpability for the 

offense” (Doc. 1, p. 21).

The undersigned first notes that Petitioner has not 

indicated who might have been called or what their testimony 

might have been. Furthermore, the undersigned reminds Williams 

that his trial attorney convinced the trial judge, in a pretrial motion, to grant a motion in limine that barred the 

prosecuting attorney from presenting evidence of previous 

accusations of a sexual nature against Petitioner by two of his 

daughters unless it was in rebuttal to evidence submitted by 

Williams (See Doc. 6, Exhibit 1, pp. 61-66). The trial attorney 

testified, at the hearing on a Motion for a New Trial, that he 

could not put on evidence of Petitioner’s good character because 

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he knew it would allow the other evidence to be admitted (Doc. 

6, Exhibit A, Volume 3, pp. 84, 86-91). 

The undersigned finds that Williams has not demonstrated 

that his trial attorney’s failure to investigate, including his 

failure to call witnesses to testify as to his good character, 

resulted in any prejudice to him under Strickland.

In summary, the undersigned finds that Petitioner has not 

shown the undersigned that his trial attorney rendered 

ineffective assistance under Strickland. The undersigned 

further finds that Williams’s appellate attorney did not render 

ineffective assistance in failing to raise an ineffective 

assistance of trial counsel claim as there was no merit to such 

a claim.

Having failed to meet the burden of demonstrating 

ineffective assistance of trial counsel, the undersigned further 

finds that Williams has failed to demonstrate that he was

prejudiced by his attorney, as required by Booker and 

Wainwright. The undersigned specifically finds that Petitioner 

has failed to meet his “burden of showing, not merely that the 

errors of his trial [counsel] created a possibility of 

prejudice, but that they worked to his actual and substantial 

disadvantage, infecting his entire trial with error of 

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constitutional dimensions.” United States v. Frady, 456 U.S. 

152, 170 (1982).8 

The undersigned has found that Petitioner has failed to 

demonstrate “both cause for his noncompliance [with state 

procedural rules] and actual prejudice resulting therefrom” as 

required in Booker and Wainwright.

The undersigned again notes that Williams can also avoid 

the procedural default bar by showing that this Court’s failure 

to consider his claims will result in a fundamental miscarriage 

of justice. Engle v. Isaac, 456 U.S. 107, 135 (1982); see also 

Murray v. Carrier, 477 U.S. 478, 496 (1986). The Engle Court, 

however, noted that “any prisoner bringing a constitutional 

claim to the federal courthouse after a state procedural default 

must demonstrate cause and actual prejudice before obtaining 

 8

The Order referring this action back to the Magistrate Judge 

noted the undersigned’s failure to “address the petitioner’s 

contention that an Alabama appellate court ‘f[ound] that had the 

claims of Williams been properly raised, Williams would probably had 

[sic] been entitled to relief.’ (Doc. 17 at 6)” (Doc. 18, p. 3). 

The undersigned did not address the uncited quote because it

appeared in Petitioner’s objections to the Report and Recommendation; 

it was not before the Magistrate Judge to consider. 

The undersigned notes that no such language—or similar language—

appears in the opinion by the Alabama Court of Criminal Appeals on 

direct appeal (Doc. 6, Exhibit 6), in the certificate of judgment 

entered by the Alabama Supreme Court on direct appeal (Doc. 6, Exhibit 

7), in the opinion by the Alabama Court of Criminal Appeals on review 

of the denial of Williams’s Rule 32 petition (Doc. 6, Exhibit 13), or 

in the certificate of judgment entered by the Alabama Supreme Court on 

Williams’ Rule 32 petition (Doc. 6, Exhibit 14). Petitioner’s 

reassertion of the statement, now as undisputed (Doc. 25, p. 7), makes 

it no more true than when it was first uttered.

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relief.” Engle, 456 at 129. The Murray Court went on to hold 

that “in an extraordinary case, where a constitutional violation 

has probably resulted in the conviction of one who is actually 

innocent, a federal habeas court may grant the writ even in the 

absence of a showing of cause for the procedural default.” 

Murray, 477 U.S. at 496. 

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

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 undersigned notes that Petitioner 

offers only assertions of his innocence. The only offer of new 

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evidence was the testimony of Williams’s stepson. That evidence 

has been reviewed herein and found a failure in demonstrating 

any actual prejudice to Petitioner. The undersigned cannot 

find, after considering the testimony proffered by Todd Norman, 

that “no juror, acting reasonably, would have voted to find 

[Williams] guilty beyond a reasonable doubt.” Petitioner has 

not satisfied his burden of demonstrating actual innocence under 

Schlup.

Furthermore, the undersigned finds that this is not the 

extraordinary case hypothesized in Murray. Petitioner’s theory 

that he can bypass procedural default because the 

ineffectiveness assistance of his Rule 32 attorney’s failure to 

claim ineffective assistance of the appellate attorney’s failure 

to raise ineffective assistance of the newly-appointed postconviction attorney’s failure to raise ineffective assistance of 

trial counsel fails with the undersigned’s finding that Williams 

has not demonstrated the ineffectiveness of his trial attorney

under Strickland. The undersigned’s finding that no prejudice 

has been demonstrated in the trial attorney’s failure to call 

the stepson or character witnesses or in failing to submit 

unspecified evidence leaves Petitioner’s theory without a 

properly established predicate. This argument is without merit.

The undersigned finds that this Court’s failure to consider 

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the merits of Williams’s claims will not result in a fundamental 

miscarriage of justice. Furthermore, the undersigned finds that 

Petitioner has made no showing of actual innocence and has not 

overcome the procedural default problem presented. The 

undersigned finds that Petitioner has provided no cause for 

ignoring the dictates of Wainwright’s instructions regarding 

procedural default: the claims brought in this action are 

procedurally barred and their merit should not be considered.

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 . . 

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. 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 

procedurally defaulted in the state courts on the claims brought 

in this petition, a reasonable jurist could not conclude that 

this 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, 

Cynthia Stewart, and against Petitioner, Timothy Wayne Williams.

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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. 7(c). 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 

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objection that merely incorporates by reference or refers to the 

briefing before the Magistrate Judge is not specific. 

DONE this 20th day of June, 2016.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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