73 The Alabama Lawyer 172 (2012). THE APPELLATE CORNER.

• Author: By Marc A. Starrett

Alabama Bar Journal

2012.

73 The Alabama Lawyer 172 (2012).

THE APPELLATE CORNER

THE APPELLATE CORNER By Marc A. Starrett Marc A. Starrett is an assistant attorney general for the State of Alabama and represents the state in criminal appeals and habeas corpus in all state and federal courts. He is a graduate of the University of Alabama School of Law. Starrett served as staff attorney to justice Kenneth Ingram and justice Mark Kennedy on the Alabama Supreme Court, and was engaged in civil and criminal practice in Montgomery before appointment to the Office of the Attorney General. Among other cases for the office, Starrett successfully prosecuted Bobby Frank Cherry on appeal from his murder convictions for the 1963 bombing of Birmingham's Sixteenth Street Baptist Church.

Decisions of the United States Supreme Court-Criminal

Miranda; Custodial Interrogation

Howes V. Fields. No. 10-6S0, 2012 WL 53S2S0 (Feb. 21, 2012] Police officers did not violate the defendant's Miranda rights by questioning him regarding alleged criminal activity while the defendant was incarcerated on an unrelated offense at the time of the questioning. The Court noted that it had repeatedly refused to adopt a categorical rule regarding whether the questioning of a prison inmate is "custodial" for purposes of Miranda, and the determination of whether the "individual's freedom of movement was curtailed...is simply the first step in the analysis, not the last."

Federal Habeas Corpus Procedure; Review of State Court's Decision

Wetzel V. Lambert, No. 11-3S, 2012 WL 53S2S1 (Feb. 21, 2012] Reversing the granting of habeas relief from the petitioner's state court capital murder conviction, the Court held that the court of appeals had failed to examine each ground supporting the state court's decision. It noted that a retrial of this charge 30 years after the offense would pose "the most daunting difficulties for the prosecution[,]" and that this heavy burden should not be imposed unless each ground supporting the state court's judgment is examined and found to be unreasonable under the Antiterrorism and Effective Death Penalty Act ("AEDPA"].

Federal Habeas Corpus Procedure; Cause for Procedural Default

Maples V. Thomas, 132 S. Ct. 312 (2012]

The Court held that the habeas petitioner's showing that his post-conviction counsel had effectively abandoned him at the time he could have appealed from the dismissal of his Ala.R.Crim.P. Rule 32 petition established cause for the procedural default arising from his failure to appeal.

Federal Habeas Corpus Procedure; Certificate of Appealability; AEDPA Limitations Period Calculation

Gonzalez V. Thayer, 132 S. Ct. 641 [2012] The Court held that a defect in a certificate of appealability under 2S U.S.C.A. § 2253 (c](3] is non-jurisdictional, because that rule is "mandatory but non-jurisdictional[.]" It further held that when the habeas petitioner does not seek review in his state's highest court, the one-year AEDPA limitation period begins to run at the time for seeking such review expires.

Decisions of the Eleventh Circuit Court of Appeals-Criminal

Federal Habeas Corpus Procedure; Actual innocence Exception to the AEDPA Limitation Period

Rozzelle v. Sec, Fla. DepL of Corn., No. 10-13535, 2012 WL 630204 (11* Cir. Feb. 23, 2012]

Thoroughly discussing the "actual innocence" exception to the AEDPA limitation period and reaffirming that the exception requires the habeas petitioner to establish "factual innocence" rather than simply "legal insufficiency," the Court held that the petitioner failed to meet this heavy burden and, thus, affirmed the district court's dismissal of the time-barred petition.

Designation of Violent Felonies under the "Armed Career Criminal Act"

U.S. V. Owens. No. 03-131 IS, 2012 WL 603233 (11* Cir. Feb. 27, 2012]

Alabama state court convictions of second-degree rape and second-degree sodomy do not constitute "violent felonies" for purposes of the "Armed Career Criminal Act," 18 U.S.C. § 324, a federal habitual offender statute requiring a mandatory minimum sentence for prior drug or violent felony offenders found in possession of a firearm or ammunition.

Production of Files to Grand Jury Subject to Fifth Amendment Protection

In re Grand Jury Subpoena Duces Tecum, Nos. 11-122688, 11-15421, 2012 WL 573433 (11* Cir. Feb. 23, 2012]

The Court reversed the district court's contempt judgment against an individual who, citing the Fifth Amendment privilege against self-incrimination, refused to produce decrypted computer hard drives in a grand jury child pornography investigation. The production of unencrypted hard drives would be testimonial in nature, and the individual properly invoked his Fifth Amendment rights against producing or decrypting the information.

Federal Habeas Corpus Procedure; Certificate of Appealability

Scales v. Forniss, No. 11-12135, 2012 WL 162126 (11thCir. Jan. 19, 2012) (unpublished opinion)

Following the district court's denial of federal habeas relief from the petitioner's Alabama state court convictions, the petitioner obtained a certificate of appealability for review of that judgment. However, the petitioner's failure to argue the issues upon which that certificate was granted rendered them abandoned on appeal, resulting in affirmance of the district court's judgment.

Federal Habeas Corpus Procedure; Ineffective Assistance of Counsel

Hunt v. Comm., Dept. of Corr., 666 F. 3d 208 (11th Cir. 2012)

The petitioner failed to show that he was entitled to federal habeas relief under the AEDPA on his ineffective assistance of counsel claims. Contrary to his contentions, he did not show that the Alabama courts required extrinsic proof of prejudice arising from the alleged ineffective assistance, that counsel was ineffective in his cross-examination of his cellmate, and that counsel was ineffective by not requesting jury instructions regarding intoxication and lesser-included offenses. The court acknowledged the AEDPA requirement that the petitioner first exhaust his claims by "fairly presenting]" them to the state courts before presenting them to the federal court.

Federal Habeas Corpus Procedure; Interpreters

Jimenez v. Sec, Dept. of Corr., No. 11-12151, 2012 WL 10807 (11th Cir. Jan. 3, 2012) (unpublished opinion)

The state court's denial of the petitioner's request for an interpreter in his native language, Mumm, did not entitle him to federal habeas relief. He failed to show that the state court's rulings regarding the use of interpreters were contrary to clearly established Supreme Court precedent or an unreasonable application of federal law.

Decisions of the Alabama Supreme Court-Criminal

Ala.R.Crim.P. Rule 32; Kirby Resentencing Motion

Ex parte Pate, No. 1101232, 2012 WL 593224 (Ala. Feb. 24, 2012)

The court held that the inmate's motion for resentencing under Alabama Code (1975) § 13A-5-9.1 and Kirby v. State, 899 So. 2d 968 (Ala. 2004) was filed separately from his petition for post-conviction relief under Ala.R.Crim.P. Rule 32, and therefore was properly before the court of criminal appeals for appellate review.

Decisions of the Alabama Court of Criminal Appeals

Pretrial Publicity; Voluntariness of Statement and Miranda; Confrontation Clause; NCIC Records; Prior Bad Acts Evidence

Thompson v. State, CR-05-0073, 2012 WL 520873 (Ala. Crim. App. Feb. 17, 2012)

Among its numerous holdings in affirming the defendant's murder convictions and resulting death sentence, the court held that he failed to show that his trial was prejudiced by pretrial publicity; his age at the time of his statement to police (18) did not make that statement inadmissible; his Miranda warnings were not rendered stale by the passage of five hours between their issuance and his statement; "death-qualifying" the jury did not prejudice it toward conviction; the victims' autopsy reports were admissible under the business records hearsay exception and were non-testimonial for purposes of Confrontation Clause analysis; he was not entitled to National Crime Information Center ("NCIC") records pertaining to law-enforcement witnesses; and the admission of evidence showing his acts of burglary on the weekend of the murders was proper to prove motive and intent under Ala.R.Evid. Rule 404 (b).

Hearsay; Interplay between Rule of Evidence and Statute

State v. Baker, CR-10-1831, 2012 WL 415461 (Ala. Crim. App. Feb. 10, 2012)

Pursuant to Ala.R.Crim.P. Rule 15.7, the state appealed from the trial court's decision to exclude the two-and-a-half-year-old victim's statements to family members regarding the defendant's alleged acts of sodomy at a daycare facility. In its decision the trial court had relied on the court of criminal appeals' holding in M.L.H. v. State, CR-09-0649 (Ala. Crim. App. Jul. 8, 2011 ], which was subsequently reversed by the supreme court in Ex parte State (v. M.L.H.], No. 110133S, 2011 WL 6004617 (Ala. Dec. 2, 2011]. In accordance with the supreme court's holding in Ex parte State [v. M.L.HJthat a witness's statement that does not constitute a hearsay exception under Ala. R.Evid. Rule S01(d](1](A] may still be admissible as substantive evidence under Alabama Code [1975] § 15-25-31 [governing admissibility of out-of-court statements by a child under 12 regarding exploitation or physical/sexual abuse], the court of criminal appeals reversed the trial court's exclusion of the victim's statements.

Double Jeopardy

Traylor v. State. CR-10-1332, 2012 WL 415462 [Ala...