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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 which 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 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).

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 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).

Petitioner filed a complaint with this Court on March 9, 

2015, raising the claim that his trial and appellate attorneys

rendered ineffective assistance. More specifically, Williams 

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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; he 

claims that his appellate attorney erred in not raising an 

ineffective assistance of counsel claim on appeal (Doc. 1).

The Court first notes that Defendant states that this 

action is not barred by the limitations period of the AntiTerrorism and Effective Death Penalty Act of April 24, 1996 

(Doc. 6, pp. 9-11; Doc. 11). However, Defendant asserts that 

these claims are procedurally barred because they were not 

timely raised in the appropriate venue (Doc. 6, pp. 11-19).

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). The Court further notes the decisions of 

Coleman v. Thompson, 501 U.S. 722 (1991) and Ylst v. Nunnemaker, 

501 U.S. 797, 803 (1991), which held that a determination by a 

state appellate court affirming, without written opinion, a 

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lower court's reasoned determination that a claimant is barred 

procedurally from raising certain claims in that state's courts 

satisfied the rule of Harris.

The Court will now review Petitioner’s claims to determine 

when they were first raised and his dedication in pursuing them 

in the Courts. 

Williams claims 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). He claims that his attorney was unaware of—or 

forgot—rulings by the Court (id. at p. 15). Finally, Williams 

asserts that his attorney failed to adequately interview a fact 

witness (id. at pp. 15-16).

In the decision on appeal of the denial of Petitioner’s 

Rule 32 petition, the Alabama Court of Criminal Appeals held 

that this claim—and these issues—were procedurally defaulted as 

they had not been raised initially in the Court below (Doc. 6, 

Exhibit J, pp. 2-3). Under Harris, this claim is procedurally 

defaulted.

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Next, Williams claims that he had informed his trial 

attorney that his son could corroborate his testimony, but 

Petitioner was the only witness he called (Doc. 1, p. 7). 

The evidence shows that Williams raised this claim in his 

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

New Trial. The Alabama Court of Criminal Appeals, again on 

appeal of the Rule 32 petition, held that the claim was 

procedurally defaulted under Ala. Crim. App. P. 32.2(a)(5)1

because Williams did not raise the claim on the direct appeal of 

his conviction (Doc. 6, Exhibit J, pp. 3-4). Under Harris, this 

claim is procedurally defaulted.

Williams also claims that his appellate counsel rendered 

ineffective assistance in failing to assert that his trial 

attorney had rendered ineffective assistance in not properly 

investigating his case (Doc. 1, p. 24). Petitioner raised this 

claim in his Rule 32 petition, but the Alabama Court of Criminal 

Appeals held that he had defaulted on the claim because it did 

not comply with Ala.R.App.P. 28(a)(10)’s2 requirements (Doc. 6, 

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Error! Main Document Only.“A petitioner will not be given relief 

under this rule based upon any ground . . . [w]hich could have been 

but was not raised on appeal.”

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“The brief of the appellant or the petitioner, if a petition for 

a writ of certiorari is granted and the writ issues, shall comply with 

the form requirements of Rule 32. In addition, the brief of the 

appellant or the petitioner shall contain under appropriate headings 

and in the order here indicated: . . . [a]n argument containing the 

contentions of the appellant/petitioner with respect to the issues 

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Exhibit J, pp. 4-5). Again, Harris indicates that this claim is 

procedurally defaulted.

So, in summary, all of the claims Williams brings in this 

petition are procedurally defaulted. However, where the 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:

 presented, and the reasons therefor, with citations to the cases, 

statutes, other authorities, and parts of the record relied on. 

Citations of authority shall comply with the rules of citation in the 

latest edition of either The Bluebook: A Uniform System of Citation 

or ALWD (Association of Legal Writing Directors Citation Manual: A 

Professional System of Citation or shall otherwise comply with the 

style and form used in opinions of the Supreme Court of Alabama. 

Citations shall reference the specific page number(s) that relate to 

the proposition for which the case is cited.”

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.) (citations 

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

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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).

Williams has argued, in his Reply Brief (Doc. 10), that the

procedural default of his ineffective assistance of appellate 

counsel claim should be excused because the United States 

Supreme Court, in Martinez v. Ryan, --- U.S. ---, ---, 132 S.Ct. 

1309, 1320 (2012), held the following:

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 reviewed circumstances in which a criminal defendant’s 

first opportunity to raise an ineffective assistance of trial 

counsel claim was in collateral proceedings as Arizona law 

precluded the opportunity to raise such a claim on direct 

appeal. Martinez, 132 S.Ct. at 1313. 

However, Alabama’s law, with regard to this issue, is 

different than that of Arizona. Under Alabama law, “[a]ny claim 

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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). Case law demonstrates that this rule is enforced as 

shown in 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 barred”). 

In his petition, Williams states that he was represented by 

different attorneys at trial, in a Motion for a New Trial, and 

on direct appeal (Doc. 1, p. 3). In his Motion for a New 

Trial, his newly-appointed attorney brought an ineffective

assistance of trial counsel claim for his failure to call a 

witness (see Doc. 6, Exhibit A, Volume 1, pp. 27-29); his 

attorney did not raise the claim raised in this petition—that 

his trial attorney had failed to properly investigate his case 

(Doc. 1, p. 24). Likewise, Williams’s appellate attorney did 

not raise this ineffective assistance of trial counsel claim—or 

any such claim—on direct appeal, though given the opportunity to 

do so (see Doc. 6, Exhibit D). Because Petitioner had two 

different opportunities to raise his ineffective assistance of 

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trial counsel claim before raising the claim on collateral 

review, Martinez is inapplicable here.

In this action, Petitioner has demonstrated neither cause 

nor prejudice for failing to raise these claims in a timely 

manner in the State courts. Furthermore, Williams has not shown

that this Court’s failure to discuss the merit of these claims 

will result in a fundamental miscarriage of justice being 

visited upon him. Therefore, the Court considers all claims 

brought by Williams in this action be procedurally defaulted and 

will not discuss their merit.

Petitioner has raised three different claims in bringing 

this action. All are procedurally defaulted. 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 

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 

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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). 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, 529 U.S. at 484. As Williams 

has not raised these claims in the State courts in a timely 

manner, a reasonable jurist could not conclude that this Court 

erred in dismissing the instant petition or that Williams 

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 

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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 of Respondent, 

Cynthia Stewart, and against Petitioner, Timothy Wayne 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 

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 

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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 10th day of November, 2015.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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