IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

JAMES RODGERS, : 

Petitioner, : 

v. : 

CIVIL ACTION 05-0635-CG-M 

KENNETH JONES, : 

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), 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 this habeas petition be denied, that this

action be dismissed, and that judgment be entered in favor of

Respondent Kenneth Jones and against Petitioner James Rodgers on

all claims.

Petitioner was convicted of capital murder in the Circuit

Court of Dallas County on March 13, 2001 for which he received a

sentence of life without parole in the state penitentiary (Doc.

4, p. 2; Doc. 13, p. 1). Appeal was made to the Court of

Criminal Appeals of Alabama which affirmed the conviction and

sentence in a memorandum opinion (Doc. 13, Exhibit D). Rodgers

petitioned for a writ of certiorari, but the Alabama Supreme

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Respondent has asserted that this action was initiated on

January 6, 2006 when he presented this petition for mailing to prison

authorities (Doc. 13, p. 12). The evidence shows, however, that

Petitioner initiated this action with the signing of his initial

petition on October 24, 2005 which was filed in this Court on October

31, 2005 (Doc. 1). Petitioner was ordered by this Court, however, to

complete another petition as the previous petition was on an outdated

form (Doc. 3); it was this form that Respondent received and to which

he refers (Doc. 4). 

2

Court denied it on May 17, 2002 (Doc. 13, Exhibit F); on that

same date, the Alabama Court of Criminal Appeals issued a

certificate of judgment (Doc. 13, Exhibit G).

Petitioner filed his first State Rule 32 petition on March

4, 2003 which was denied by the Dallas County Circuit Court (Doc.

13, Exhibit H, pp. 3-25, 114-20). The Alabama Court of Criminal

Appeals affirmed that denial (Doc. 13, Exhibit K). The Alabama

Supreme Court denied Rodgers’s petition for writ of certiorari

(Doc. 13, Exhibit M); three days later, the lower appellate court

issued a certificate of judgment (Doc. 13, Exhibits N). 

Petitioner filed a second State Rule 32 petition on November

1, 2004 (Doc. 13, Exhibit O, pp. 7-39). The petition was denied

by the Circuit Court (id. at pp. 43-44), a decision which was

affirmed by the Alabama Court of Criminal Appeals (Doc. 13,

Exhibit R). The Alabama Supreme Court denied Rodgers’s petition

for writ of certiorari (Doc. 13, Exhibit T) and, on October 14,

2005, the Alabama Court of Criminal Appeals issued a certificate

of judgment (Doc. 13, Exhibit U). 

Petitioner filed a complaint with this Court on October 24,1

2005, raising the following claims: (1) The indictment against

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him was void; (2) the trial court was without jurisdiction to

convict and sentence him; (3) his trial attorney rendered

ineffective assistance in that he: (a) did not file a motion to

dismiss the indictment against him on the grounds of (i)

selective prosecution and (ii) its failure to allege the

essential elements of the statute; (b) failed to pursue a valid,

obvious defense; (c) did not allow Petitioner to testify on his

own behalf; and (d) failed to request a curative instruction to

the jury with regard to statements made by (i) Detective Grindle

and (ii) James Edwards; (4) his appellate counsel rendered

ineffective assistance in that he failed to raise an ineffective

assistance of trial counsel claim with regard to his trial

attorney’s failure to: (a) file a motion dismissing the

indictment on the grounds of (i) selective prosecution and (ii)

its failure to allege the essential elements of the statute; (b)

request a curative instruction to the jury with regard to

statements made by (i) Detective Grindle and (ii) James Edwards;

(c) raise a claim of insufficiency of the evidence; (d) request

an instruction to the jury on lesser included offenses; and (e)

effectively guard his rights; and 5) his conviction violated the

Equal Protection Clause of the Fourteenth Amendment as well as

provisions of the Alabama Constitution (Doc. 4; cf. Doc. 13, pp.

1-3). 

Respondent has filed an answer along with exhibits (Doc.

13). Respondent admits that Rodgers has filed this action in a

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The Court notes that the claim numbers do not correspond to the

numbers as presented by Petitioner and repeated by Respondent as the

Court reorganized the claims in a manner consistent with chronological

events. For the convenience of the parties, however, the Court will

duplicate the claims in this footnote as the Court has numbered them,

followed parenthetically by the claim number as raised by Petitioner.

Petitioner has raised the following claims: (1) The indictment

against him was void (ten); (2) the trial court was without

jurisdiction to convict and sentence him (nine); (3) his trial

attorney rendered ineffective assistance in that he: (a) did not file

a motion to dismiss the indictment against him on the grounds of (i)

selective prosecution (seven) and (ii) its failure to allege the

essential elements of the statute (eleven); (b) failed to pursue a

valid, obvious defense (four); (c) did not allow Petitioner to testify

on his own behalf (five); and (d) failed to request a curative

instruction to the jury with regard to statements made by (i)

Detective Grindle (thirteen) and (ii) James Edwards (fifteen); (4) his

appellate counsel rendered ineffective assistance in that he failed to

raise an ineffective assistance of trial counsel claim with regard to

his trial attorney’s failure to: (a) file a motion dismissing the

indictment on the grounds of (i) selective prosecution (eight) and

(ii) its failure to allege the essential elements of the statute

(twelve); (b) request a curative instruction to the jury with regard

to statements made by (i) Detective Grindle (fourteen) and (ii) James

Edwards (sixteen); (c) raise a claim of insufficient evidence (two);

(d) request an instruction to the jury on lesser included offenses

(three); and (e) effectively guard his rights (six); and 5) his

conviction violated the Equal Protection Clause of the Fourteenth

Amendment as well as provisions of the Alabama Constitution (one).

4

timely manner (Doc. 13, pp. 10-12). However, Respondent claims

that a number of Petitioner’s claims are barred by procedural

default (Doc. 13, pp. 14-17). More specifically, Respondent

asserts that claims one, two, three (a & d), and four (a & b) are

all procedurally defaulted (Doc. 13, p. 16).2 

Respondent argues that claim one is procedurally defaulted

because, although it was presented to the Alabama Court of

Criminal Appeals for review in Rodgers’s second Rule 32 petition,

it was not presented to the Alabama Supreme Court (Doc. 13, pp.

13, 16). The evidence supports this assertion (Doc. 13, Exhibits

R, pp. 3-4, S). Because Petitioner did not pursue this claim in

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a timely fashion before the Alabama Supreme Court, 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”). 

Respondent asserts that claim two was specifically found to

be barred by the Alabama Court of Criminal Appeals on Rodgers’s

second Rule 32 petition because it had not been presented in a

timely manner (Doc. 13, p. 16). The evidence supports this

assertion (Doc. 13, Exhibit R, p. 3). Respondent further asserts

that claims three (a & d) and four (a & b) are all procedurally

defaulted for the same reason (Doc. 13, p. 16). The evidence

supports this assertion (Doc. 13, Exhibit R, p. 3). It is noted

that a United States Supreme Court decision, Harris v. Reed, 489

U.S. 255 (1989), 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 record supports Respondent's assertions: claims one,

two, three (a & d), and four (a & b) are all procedurally

defaulted.

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Petitioner has argued that his claims were not procedurally

defaulted as noted parenthetically in the text. Nevertheless, the

Court gave Rodgers until August 16, 2006 to respond (see Doc. 19); as

of this date, however, no further response has been made.

6

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:

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 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 demonstrated neither cause

nor prejudice for failing to raise these claims in a timely

manner in the State courts (see Doc. 20, pp. 4-5).3

 Furthermore,

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Rodgers 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

claims one, two, three (a & d), and four (a & b) in this Court to

be procedurally defaulted and the Court will not address their

merit. That leaves claims three (b & c), four (c, d, & e), and

five for the Court to address.

Rodgers claims that his trial attorney rendered ineffective

assistance on two different grounds. In Strickland v.

Washington, 466 U.S. 668 (1984), the United States Supreme Court

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.

The first particular allegation of ineffective assistance of

trial counsel is that his attorney failed to pursue a valid,

obvious defense. Petitioner has stated that the supporting facts

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are as follows: “Trial Counsel failed to pursue a valid and

obvious defense in the Petitioner’s behalf when no other defense

was available to the Petitioner” (Doc. 4, p. 18). Rodgers

provides no further explanation of his claim (see, e.g., Doc.

20). 

Petitioner raised this claim in his first Rule 32 petition

as well, but the language there is no more illuminating (see Doc.

13, Exhibit H, p. 22). The Circuit Court Judge, who denied the

petition, stated as follows: 

“The Defendant has failed to state what the

valid and obvious defense that the Defendant

had in this case in which he raises in the

Rule 32 petition. The only defenses that the

Defendant had in this case were self-defense

and/or heat of passion. As the Court

recalls, both of those issues were raised by

Mr. Whatley thoroughly.”

(Doc. 13, Exhibit H, p. 116). The appellate court adopted this

language as its own (Doc. 13, Exhibit K, p. 6). 

This Court, to, reaches a similar conclusion. As Rodgers

has failed to state, with particularity, what the “valid and

obvious defense” was that his trial attorney failed to raise,

this Court must find that he has failed to demonstrate that the

defense was necessary or that his attorney failed to render it. 

This claim is without merit.

The second particular claim of ineffective assistance of

trial counsel is that his attorney did not allow Petitioner to

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testify on his own behalf. In addressing this issue, the

Eleventh Circuit Court of Appeals has stated that "a defendant's

right to testify at trial is a fundamental constitutional right

personal to the defendant. It is a right that cannot be

forfeited by counsel, but only by a knowing, voluntary, and

intelligent waiver by the defenant himself." Nichols v. Butler,

917 F.2d 518, 520-21 (11th Cir. 1990), aff'd on rehearing, 953

F.2d 1550 (11th Cir. 1992) (en banc).

Rodgers has referenced a sworn affidavit given by his trial

attorney which states as follows:

While I do not have a copy of the trial

transcript in this case and have never seen a

copy of the transcript to confirm it, it is

my recollection that Rodgers stated on the

record outside the presence of the jury that

he understood that he had a right to testify

at his trial, but no one could force him to

testify if he chose not to and that if he did

not testify, then the state could not use

that against him. It is my standard practice

to ask the trial court to put this

information on the record in every case,

whether the client wants to testify or not, 

so that it is clear that whatever the

decision is, the client makes it freely and

voluntarily with an understanding of what his

rights are. This should be a part of the

transcript in Rodgers’ case.

In addition, I discussed this with

Rodgers prior to trial and during trial, and

he was in agreement with the decision to

proceed in this manner. If Rodgers wanted to

testify at his trial, then I would have asked

the trial court to put on the record that it

was his decision to testify and that he had

not been forced by anyone to testify. 

Rodgers understood what his rights were in

this regard and it was his decision to

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proceed in the manner that we did in this

case.

(Doc. 20, p. 15 (quoting Doc. 13, Exhibit H, p. 42-43)). 

The Court notes that the Circuit Court Judge, who denied

Petitioner’s first Rule 32 petition, stated the following: 

[P]rior to resting his case[,] the Defendant

told the Court on the record that he did not

wish to testify in the matter. He is now

attempting to go back on what he said. The

Defendant cannot claim ineffective assistance

of counsel based on hindsight. He made his

decision at trial. Based on that and on the

affidavit of Mr. Whatley the Court finds that

Mr. Whatley was not ineffective for not

putting the Defendant on the stand to testify

in his own behalf.

(Doc. 13, Exhibit H, pp. 116-17). 

The Court has reviewed the trial transcript and has not

found any evidence that Rodgers, on the record, expressly waived

his right to testify. Rather, the record reflects that, at the

close of the Defendant’s case, his attorney merely stated that

“[t]he defense rests” (Doc. 13, Exhibit A, Tr. 204). 

Nevertheless, it was the trial judge’s and trial attorney’s

recollection that Petitioner specifically waived his right to

testify. The Court finds that evidence, in light of the fact

that there is no evidence to the contrary except for Rodgers’s

assertion, to satisfactorily demonstrate that Plaintiff did waive

his right to testify at trial. Petitioner’s claim otherwise is

without merit.

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Rodgers has also claimed that his appellate attorney

rendered ineffective assistance in not raising an ineffective

assistance of trial counsel claim in three particular ways. In

Evitts v. Lucey, 469 U.S. 387 (1985), the United States Supreme

Court extended Strickland to the appellate level, stating that

"[a] first appeal as of right therefore is not adjudicated in

accord with due process of law if the appellant does not have the

effective assistance of an attorney." Id. at 396. 

Petitioner first claims that his appellate attorney rendered

ineffective assistance in failing to claim that his trial

attorney was ineffective in not raising an insufficiency of the

evidence claim. Rodgers more specifically states that “[t]he

State failed to prove the essential elements of the capital

offense under the provisions of the Code of Alabama 1975, Section

13A-5-40(a)(1), which states that murder is capital only when the

victim is killed while in a motor vehicle” (Doc. 4, p. 17). 

It should be noted that this Court, on habeas review, does

not make an independent determination of whether Petitioner is

guilty or innocent. The evidence was constitutionally adequate

if there was evidence presented at the trial from which a

reasonable trier of fact could find Petitioner guilty beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979). 

This Court further notes that all conflicts in the evidence are

resolved in favor of the prosecution. Id.

The code section challenged herein states as follows: “The

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following are capital offenses: . . . (17) Murder committed by or

through the use of a deadly weapon while the victim is in a

vehicle.” Ala. Code § 13A-5-40 (17). The Court notes that

Rodgers made this same claim in his first Rule 32 petition and

the Circuit Court Judge who denied it stated as follows: 

The statute and no law requires that the

victim actually die while in the vehicle. It

is sufficient, as the facts show in this

case, that the Defendant shot him while he

was in the vehicle and that the shot caused

his death. Though the victim may have

actually died while in the hospital in an

attempt to be treated from his gunshot wound

fired by the Defendant, that does not prevent

the defendant from being convicted of capital

murder. Therefore, the Defendant’s counsel

was not ineffective for failing to make this

argument.

(Doc. 13, Exhibit H, p. 118). The Court has reviewed the

evidence from trial which proves that Rodgers shot into a car,

with a pistol, and hit Adrian Richardson who later died as a

result of having been shot (Doc. 13, Exhibit A, Tr. 91-182). 

This satisfies Jackson in that the evidence was sufficient to

prove the elements of Ala. Code § 13A-5-40. 

To the extent that Petitioner is challenging the statute,

the Court notes that "state court construction of state law is

binding on federal courts entertaining petitions for habeas

relief." Beverly v. Jones, 854 F.2d 412, 416 (11th Cir. 1988),

cert. denied, 490 U.S. 1082 (1989) (quoting Tyree v. White, 796

F.2d 390, 392-93 (11th Cir. 1986) (citing Missouri v. Hunter, 459

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U.S. 359 (1983))). The Alabama Court of Criminal Appeals, on

appeal of Petitioner’s first Rule 32 petition, reviewed this

claim and found no state law violation, a decision not disagreed

with by the Alabama Supreme Court (see Doc. 13, Exhibits K, M). 

Furthermore, "a state's interpretation of its own laws provides

no basis for federal habeas relief since no question of a

constitutional nature is involved.” Beverly, 854 F.2d at 416,

citing Carrizales v. Wainwright, 699 F.2d 1053, 1054-55 (11th

Cir. 1983). Petitioner’s claim that his appellate attorney

rendered ineffective assistance in not raising a claim that his

trial attorney was ineffective for not raising an insufficiency

of the evidence claim is without merit.

Rodgers next claims that his appellate attorney rendered

ineffective assistance in that he failed to raise an ineffective

assistance of trial counsel claim because the trial attorney

failed to request an instruction to the jury on lesser included

offenses. Petitioner specifically references Ala. Code § 13A-11-

61(b), a class B felony for shooting into a vehicle (Doc. 4, p.

17).

The Court notes, however, that under Alabama common law, 

The trial court is not required to

charge the jury on a lesser included offense

when the evidence offered at trial points

either to the guilt of the accused of the

offense charged in the indictment or to his

innocence. An accused is entitled to have

the jury charged on a lesser included offense

only where there is a reasonable theory from

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The Eleventh Circuit, in the en banc decision Bonner v. City of

Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), adopted as precedent

decisions of the former Fifth Circuit rendered prior to October 1,

1981.

14

the evidence to support the lesser offense. 

Myers v. State, 401 So.2d 288, 291 (Ala. Crim. App. 1981); see

also Jackson v. State, 375 So.2d 1271 (Ala. Crim. App.), writ

denied, 375 So.2d 1274 (Ala. 1979). This ruling, it should be

noted, does not appear to be inconsistent with established

eleventh circuit law. See United States v. Sans, 731 F.2d 1521,

1529 (11th Cir. 1984), cert. denied, 469 U.S. 1111 (1985); Easter

v. Estelle, 609 F.2d 756 (5th Cir. 1980)4 (no due process

violation where state court refuses to give lesser-included

offense instruction even where evidence authorizes it). 

The Court finds that no reasonable theory has been furnished

which would support the lesser offense (see Doc. 20, pp. 11-13). 

The evidence shows that Rodgers shot into a vehicle and hit a

person who later died because he had been shot. Therefore, it

can not be found that the trial judge acted wrongly in not giving

a less-included charge on discharging a firearm into an

automobile. Therefore, Petitioner’s trial attorney was not

ineffective for not requesting the lesser-included charge and his

appellate attorney was not ineffective for not raising an

ineffective assistance of counsel claim on this issue.

Rodger’s final ineffective assistance of appellate counsel

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claim is that his attorney failed to raise an ineffective

assistance of trial counsel claim because his trial attorney

failed to effectively guard his rights. Petitioner’s supporting

facts are that “Appellate Counsel failed to raise valid issues

for review on appeal when the transcript proceedings is ripe with

trial counsel’s ineffectiveness and falls way short of the

standards by law” (Doc. 4, p. 18). As Rodgers has failed to

explain what “valid issues” were not raised, he has failed to

meet his burden of proving that his appellate attorney was

deficient or that his deficiency prejudiced him. This claim is

of no merit.

Petitioner’s final claim is that his conviction violates the

Equal Protection Clause of the Fourteenth Amendment as well as

provisions of the Alabama Constitution. The supporting facts

alleged pertain to two different Alabama criminal statutes (Doc.

4, p. 16). The first statute, Ala. Code § 13A-5-40(a)(17), has

been discussed previously in this report; the second is § 13A-6-

2(a)(1), which is the most basic first-degree murder charge. As

Petitioner’s arguments all focus on the interpretation of Alabama

law, no matter of federal concern is raised; as noted previously,

"a state's interpretation of its own laws provides no basis for

federal habeas relief since no question of a constitutional

nature is involved.” Beverly, 854 F.2d at 416. Additionally,

the Court notes that although Rodgers asserts a 14th Amendment

Equal Protection claim, he has provided no evidence for such.

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In summary, Petitioner has raised five distinct claims in

bringing this action. The Court has found claims one, two, three

(a & d), and four (a & b) to be procedurally defaulted and claims

three (b & c), four (c, d, & e), and five to be without merit. 

Therefore, for the reasons set out, it is recommended that

this habeas petition be denied, that this action be dismissed,

and that judgment be entered in favor of Respondent Kenneth Jones

and against Petitioner James Rodgers on all claims.

MAGISTRATE JUDGE’S EXPLANATION OF PROCEDURAL RIGHTS

AND RESPONSIBILITIES FOLLOWING RECOMMENDATION

AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

1. Objection. Any party who objects to this recommendation or

anything in it must, within ten days of the date of service of

this document, file specific written objections with the clerk of

court. Failure to do so will bar a de novo determination by the

district judge of anything in the recommendation and will bar an

attack, on appeal, of the factual findings of the magistrate

judge. See 28 U.S.C. § 636(b)(1)(C); Lewis v. Smith, 855 F.2d

736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404

(5th Cir. Unit B, 1982)(en banc). The procedure for challenging

the findings and recommendations of the magistrate judge is set

out in more detail in SD ALA LR 72.4 (June 1, 1997), which

provides that:

A party may object to a recommendation entered by a

magistrate judge in a dispositive matter, that is, a

matter excepted by 28 U.S.C. § 636(b)(1)(A), by filing

a “Statement of Objection to Magistrate Judge’s

Recommendation” within ten days after being served with

a copy of the recommendation, unless a different time

is established by order. The statement of objection

shall specify those portions of the recommendation to

which objection is made and the basis for the

objection. The objecting party shall submit to the

district judge, at the time of filing the objection, a

brief setting forth the party’s arguments that the

magistrate judge’s recommendation should be reviewed de

novo and a different disposition made. It is

insufficient to submit only a copy of the original

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brief submitted to the magistrate judge, although a

copy of the original brief may be submitted or referred

to and incorporated into the brief in support of the

objection. Failure to submit a brief in support of the

objection may be deemed an abandonment of the

objection.

A magistrate judge’s recommendation cannot be appealed to a

Court of Appeals; only the district judge’s order or judgment can

be appealed.

2. Transcript (applicable where proceedings tape recorded). 

Pursuant to 28 U.S.C. § 1915 and Fed.R.Civ.P. 72(b), the

magistrate judge finds that the tapes and original records in

this action are adequate for purposes of review. Any party

planning to object to this recommendation, but unable to pay the

fee for a transcript, is advised that a judicial determination

that transcription is necessary is required before the United

States will pay the cost of the transcript.

DONE this 21st day of August, 2006.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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