PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED ________________________________ COURT OF APPEALS U.S. ELEVENTH CIRCUIT No. 96-6770 04/20/99 ________________________________ THOMAS K. KAHN CLERK D.C. Docket No. CV-95-T-262-N
HENRY C. BAILEY,
Petitioner-Appellant,
versus
JOHN E. NAGLE, Warden, JEFF SESSIONS, Attorney General for the State of Alabama,
Respondents-Appellees. _________________________________________________________________
Appeal from the United States District Court for the Middle District of Alabama _________________________________________________________________ (April 20, 1999)
Before HATCHETT, Chief Judge, CARNES, Circuit Judge, and FARRIS*, Senior Circuit Judge.
PER CURIAM:
________________________________ * Honorable Jerome Farris, Senior U.S. Circuit Judge for the Ninth Circuit, sitting by designation. Henry C. Bailey, an Alabama prisoner, appeals the district court$s denial of his
petition for a writ of habeas corpus under 28 U.S.C. § 2254. Bailey was convicted in
1991 of one count of illegal distribution of crack cocaine. Pursuant to the Alabama
Habitual Felony Offender Act (“AHFOA”), Ala. Code § 13A-5-9, the court enhanced his
sentence to life imprisonment because of three prior drug-related convictions in 1982, and
he is currently serving that term. Bailey filed the instant petition for a writ of habeas
corpus in district court on February 25, 1995.1 A magistrate judge recommended that
Bailey$s petition be denied, supplementing that recommendation on June 21, 1996 to
include consideration of two subsequent amendments to Bailey$s petition, but adhering to
the original recommendation of denial. The district court adopted the magistrate$s judge$s
recommendation and ordered the petition dismissed on July 11, 1996.2
This case has a long history. Prior to filing the instant petition, Bailey took a direct
appeal of his conviction and on two separate occasions sought post-conviction relief pro
se in the Alabama courts pursuant to Ala. R. Crim. P. 32. The Alabama Court of
Criminal Appeals affirmed the direct appeal in a memorandum order, dated November 15,
1 Because the petition was filed before April 24, 1996, the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996), does not govern this appeal. 2 This case was previously before this court sitting en banc for purposes of analyzing the limited issue of whether a district court has authority to grant a certificate of appealability under the AEDPA. Hunter v. United States, 101 F.3d 1565 (11th Cir. 1996) (en banc), cert denied, 117 S. Ct. 1695 (1997), overruled in part by Lindh v. Murphy, 117 S. Ct. 2059 (1997). The issue litigated in the previous appeal has no relevance to the issues presently before the Court.
2 1991, Bailey v. State, 595 So. 2d 915 (Ala. Crim. App. 1991) (Table), and the Alabama
Supreme Court denied certiorari on February 21, 1992, Ex parte Bailey, 628 So. 2d 1078
(Ala. 1992) (Table). Bailey filed his first post-conviction Rule 32 petition on March 13,
1992 (“1992 Rule 32 Petition”), and the Alabama circuit court denied it on April 15,
1992, after an evidentiary hearing. Bailey did not appeal from this April 15, 1992 denial
within the requisite time period, allegedly because he did not timely receive a copy of the
court$s order. When Bailey moved for an out-of-time appeal of the denial of the 1992
Rule 32 Petition, he was informed that the proper vehicle for obtaining such review under
Alabama law was simply to file another Rule 32 petition.3
Attempting to follow this instruction, Bailey filed additional pro se Rule 32
petitions on April 28, 1993 and June 24, 19934 (collectively, “1993 Rule 32 Petitions”).
The court denied the 1993 Rule 32 Petitions on February 11, 1994 under the authority of
Ala. R. Crim. P. 32.2(b), which forbids successive Rule 32 appeals, except for good cause
or to prevent a miscarriage of justice. The Alabama Court of Criminal Appeals affirmed
the denial of the 1993 Rule 32 Petitions, adding as an additional ground for denial the fact
3 Bailey apparently tried to amend the 1992 Rule 32 Petition on June 5, 1992, unaware that it had already been denied; the court construed the purported amendment as a new, separate Rule 32 petition and denied it on June 10, 1992. 4 The April 28 petition simply explained the circumstances that allegedly excused Bailey$s failure to appeal the denial of the 1992 Rule 32 Petition, but did not contain any substantive grounds for relief from the underlying conviction. The June 24 petition added substantive grounds. Although the two documents are styled as two separate petitions, the Alabama courts apparently construed the June 24 petition as merely an amendment of the April 28 petition, and treated them together as a single petition. We do the same.
3 that none of Bailey$s contentions stated a claim, Ala. R. Crim. P. 32.7(d). Bailey v. State,
668 So. 2d 926 (Ala. Crim. App. 1994) (Table).5
Because the issue of procedural default is paramount in this case, it is important to
identify precisely what issues were raised in the various Alabama proceedings and when.
On direct appeal, Bailey raised the following issues: (1) whether he had been denied a
speedy trial; and (2) whether the three 1982 convictions used as predicates for the
sentence enhancement under the AHFOA should have been treated as a single conviction
due to their closeness in time. (Neither of these grounds are relevant to the instant case.)
In the 1992 Rule 32 Petition, Bailey raised the following issues: (1) whether trial
counsel was ineffective for failing to object to the racial composition of his jury; and (2)
whether trial counsel was ineffective for failing to object to the AHFOA enhancement on
the ground that the state had insufficiently proven the voluntariness of his guilty pleas in
the three 1982 predicate convictions.
In the 1993 Rule 32 Petitions, Bailey raised the following issues: (1) a chain-of-
custody problem with cocaine evidence used to convict him; (2) ineffective assistance of
trial counsel for failure to investigate the chain-of-custody; (3) police alteration of
evidence; and (4) that his failure to appeal the 1992 Rule 32 Petition in time resulted from
lack of timely receipt of the Rule 32 court$s order.
5 Bailey actually filed a notice of appeal in July 1993 because he apparently was under the impression from the Rule 32 judge$s remarks at a hearing on July 9, 1993 that his claims were being denied. The Alabama Court of Criminal Appeals dismissed this interlocutory appeal as premature, and Bailey re-filed his appeal once the 1993 Rule 32 Petitions actually were denied in a written order.
4 In this case, Bailey$s petition (incorporating amendments filed on November 21,
1995 and February 26, 1996) alleges the following grounds for relief: (1) the prosecution
failed to prove an unbroken chain-of-custody of crucial evidence; (2) ineffective
assistance of appellate counsel for (a) not investigating or objecting to the admission of
the evidence allegedly tainted by chain-of-custody problems, (b) failing to raise the chain-
of-custody issue on direct appeal, and (c) not allowing him to testify concerning the
chain-of-custody; (3) alleged government alteration of evidence; (4) the fact that his
failure to appeal the denial of the 1992 Rule 32 Petition was not his fault; and (5) the prior
convictions used to enhance his sentence under the AHFOA were not valid for
enhancement purposes due to (a) the fact that they were drug-related, (b) the fact that his
guilty please were uncounseled, and (c) the fact that no “Ireland forms” showing the
voluntariness of his predicate convictions were executed at the time of those convictions.
The magistrate judge and district court concluded that Bailey$s claims regarding
the improper enhancement of his sentence under the AHFOA and ineffective assistance of
trial counsel were procedurally barred because they had never been presented properly to
any state court. They did not articulate why they viewed these claims as never properly
presented. Whether Bailey is procedurally barred from raising particular claims is a
mixed question of law and fact that we review de novo. Agan v. Vaughn, 119 F.3d 1538,
1541 (11th Cir. 1997), cert. denied, 118 S. Ct. 1305 (1998).
A state habeas corpus petitioner who fails to raise his federal claims properly in
state court is procedurally barred from pursuing the same claim in federal court absent a
5 showing of cause for and actual prejudice from the default. Wainwright v. Sykes, 433
U.S. 72, 87 (1977). Such procedural default can arise in two ways. First, where the state
court correctly applies a procedural default principle of state law to arrive at the
conclusion that the petitioner$s federal claims are barred, Sykes requires the federal court
to respect the state court$s decision. Atkins v. Singletary, 965 F.2d 952, 956 (11th Cir.
1992), cert. denied, 515 U.S. 1165 (1995); Meagher v. Dugger, 861 F.2d 1242, 1245
(11th Cir. 1988). Second, if the petitioner simply never raised a claim in state court, and
it is obvious that the unexhausted claim would now be procedurally barred due to a state-
law procedural default, the federal court may foreclose the petitioner$s filing in state
court; the exhaustion requirement and procedural default principles combine to mandate
dismissal. Snowden v. Singletary, 135 F.3d 732, 737 (11th Cir.), cert. denied, 119 S. Ct.
405 (1998); see also 28 U.S.C. § 2254(b)(1)(A)(1994)(pre-AEDPA) (“An application for
writ of habeas corpus . . . shall not be granted unless it appears that the applicant has
exhausted the remedies available in the courts of the State . . . .”).
Our analytic task first involves dividing the claims Bailey makes in this petition
into two categories: (1) those that were actually presented to the Alabama courts, and (2)
those that were not presented to the Alabama courts. As to the former, we ask whether
the last state court rendering judgment clearly and expressly stated that its judgment
rested on a procedural bar, i.e., an adequate and independent state ground. Harris v.
Reed, 489 U.S. 255, 263 (1989). As to the latter, we ask whether any attempt Bailey now
makes to exhaust his claims in the Alabama courts would be futile under Alabama
6 procedural default doctrine. Snowden, 135 F.3d at 737 (“Federal courts may apply state
rules about procedural bars to conclude that further attempts at exhaustion would be
futile.”).
A. CLAIMS ACTUALLY RAISED IN STATE COURT
The first category includes Bailey$s claims regarding (1) the argument that the
prosecution failed to prove an unbroken chain-of-custody of the cocaine evidence; (2)
ineffective assistance of counsel for failing to investigate the chain-of-custody issue;6 (3)
alleged police alteration of evidence; and (4) the fact that his failure to appeal the denial
of the 1992 Rule 32 Petition was not his fault, because all of these claims were raised in
the 1993 Rule 32 Petitions. The first category can ignore Bailey$s direct appeal because
no overlap exists at all between the claims made in this case and the claims made in those
proceedings. Also, the first category can ignore the 1992 Rule 32 Petition because
Bailey$s failure to appeal the denial of that petition meant that the claims were never
exhausted. See 28 U.S.C. § 2254(c) (“An applicant shall not be deemed to have
exhausted the remedies available in the courts of the State . . . if he has the right under the
6 The first category does not include Bailey$s two other ineffective-assistance-of- counsel claims, regarding the failure to raise the chain-of-custody issue on appeal and not allowing Bailey to testify regarding the chain-of-custody. Those particular issues were never presented to the state courts. While they are related to ineffective assistance of counsel for failure to investigate the chain-of-custody of the cocaine evidence, which was raised in state court, “a habeas petitioner may not present instances of ineffective assistance of counsel in his federal petition that the state court has not evaluated previously.” Footman v. Singletary, 978, F.2d 1207, 1211 (11th Cir. 1992). We will consider the other two ineffective-assistance claims using the analysis for claims that were never raised in state courts.
7 law of the State to raise, by any available procedure, the question presented.”); Coleman
v. Thompson, 501 U.S. 722, 740 (1991) (failure to take timely appeal of state post-
conviction court$s denial of petition constituted procedural default); Bufalino v. Reno,
613 F.2d 568, 570 (5th Cir. 1980)7 (“[T]he exhaustion doctrine requires that the federal
claim must have been presented to the highest court of the State, either on direct review
or in a post-conviction attack.”). Even if we treat the claims in the 1992 Rule 32 Petition
as exhausted due to the lack of fault on Bailey$s part for not timely appealing, no overlap
exists between those claims and the claims made in this petition.8
We are satisfied that the Alabama courts denied the 1993 Rule 32 Petition on the
adequate and independent state procedural ground of successiveness. See generally Ala.
R. Crim. P. 32.2(b) (“A second or successive [Rule 32] petition on different grounds shall
7 In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), this Court adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981. Id. at 1209. 8 Bailey did argue in the 1992 Rule 32 Petition that his counsel rendered ineffective assistance in failing to object to the sufficiency of the State$s proof that his guilty pleas in the 1982 convictions used as predicates under the AHFOA were voluntary. In this petition, he makes a similar claim (amendment dated November 25, 1991), stripped of the ineffective-assistance cloak, raising the issue “whether the priors used [to] bring the accused under the provision of the habitual offender statute must have consisted of Ireland forms,” and implying that the failure to use such forms rendered the predicate convictions involuntary. An ineffective-assistance claim is analytically distinct from the substantive claim underlying it. Therefore, whether or not Bailey exhausted his ineffective-assistance claim regarding the voluntariness of his predicate convictions, his current substantive claim was not presented to the Alabama courts. Cf. Levasseur v. Pepe, 70 F.3d 187, 192 (1st Cir. 1995) (finding that prior court$s treatment of petitioner$s underlying substantive claims in the context of ruling on his ineffective assistance claim did not preserve substantive claims themselves for review on collateral attack).
8 be denied unless the petitioner shows both that good cause exists why the new ground or
grounds were not known or could not have been ascertained through reasonable diligence
when the first petition was heard, and that failure to entertain the petition will result in a
miscarriage of justice.”). In its February 11, 1994 order, the Rule 32 court found that
“[t]he Petitioner has failed to show good cause why the grounds raised in the instant
petitioner were not known or could not have been ascertained through reasonable
diligence at the time his first and second petitions were heard. Further, the Petitioner has
failed to show that failure to entertain this petition will result in the miscarriage of
justice.” However, the Alabama Court of Criminal Appeals complicated matters slightly,
by stating in its November 10, 1994 memorandum affirmance of the Rule 32 trial court$s
order,
The appellant$s argument, that the trial court erred in denying his Rule 32, A.R.Cr.P. petition as successive because it was a vehicle for an out-of-time appeal of his original petition, is without merit. Summary disposition of the petition was proper on another procedural ground, as the appellant failed to state a claim. Rule 32.7(d), A.R.Cr.P. The appellant did not show that his attorney was ineffective according to the standards of Strickland v. Washington, 466 U.S. 668 (1984).
Whether Bailey$s claims that were raised in the 1993 Rule 32 Petitions are now
procedurally barred turns on interpretation of the above language.
In Harris v. Reed, 489 U.S. 260 (1989), the United States Supreme Court was
confronted with the situation of a section 2254 habeas corpus petitioner whose
ineffective-assistance claims in a state post-conviction relief proceeding had been rejected
9 by the state appellate court in an unpublished opinion. That opinion stated that the
petitioner had waived those claims through not presenting them on direct appeal (i.e., a
state-law procedural default), but proceeded to analyze the claims on the merits and reject
them. The question was whether the federal court in the section 2254 proceeding should
refuse to review the claims because state procedural default rules barred them due to the
ambiguity in the state appellate court$s decision about the ground it was relying upon.
The Court held that “[a] procedural default does not bar consideration of a federal claim
on . . . habeas review unless the last state court rendering a judgment in the case clearly
and expressly states that its judgment rests on a procedural bar.” Id. at 263 (internal
quotations omitted). In Harris, the state appellate court had “laid the foundation” for a
holding based on waiver noting the petitioner$s failure to raise his claims on direct appeal,
but never stating clearly and expressly its reliance on that ground. Id. at 266.
Consequently, federal habeas review was not precluded.
Under Harris v. Reed, we must determine whether the Alabama Court of Criminal
Appeals$ opinion rested on independent and adequate state procedural grounds. We
believe that although the Alabama Court of Criminal Appeals could have been more
explicit, its opinion rested on procedural default and failure to state a claim as alternative
grounds and therefore fits within the exception reserved in footnote 10 of the Supreme
Court$s opinion in Harris: “[A] state court need not fear reaching the merits of a federal
claim in an alternative holding. Through its very definition, the adequate and
independent state ground doctrine requires the federal court to honor a state holding that
10 is a sufficient basis for the state court$s judgment, even when the state court also relies on
federal law.” Harris, 489 U.S. at 264 n.10 (emphasis in original). See also Alderman v.
Zant, 22 F.3d 1541, 1549-51 (11th Cir.) (where a Georgia habeas corpus court found that
the petitioner$s claims were procedurally barred as successive, but also noted that the
claims lacked merit based on the evidence, “[t]his ruling in the alternative did not have
the effect . . . of blurring the clear determination by the [Georgia habeas corpus] court that
the allegation was procedurally barred”), cert. denied, 513 U.S. 1061 (1994). The
presence of alternative holdings in the state appellate court$s opinion distinguishes this
case from Thomas v. Harrelson, 942 F.2d 1530, 1531-32 (11th Cir. 1991), where we held
that “[t]here is no procedural bar” where “the Alabama Court of Criminal Appeals, the
last state court to consider this case, addressed on the merits the issue [raised in the §
2254 petition].”
Thus, the district court was correct that it was precluded from hearing those of
Bailey$s claims that had been declared procedurally defaulted during the state-court
litigation of the 1993 Rule 32 Petitions. Again, these claims are (1) the argument that the
prosecution failed to prove an unbroken chain-of-custody of incriminating evidence; (2)
ineffective assistance of counsel for failing to investigate the chain-of-custody issue; (3)
police alteration of evidence; and (4) the argument that Bailey$s failure to appeal the
denial of the 1992 Rule 32 Petition was not his fault.
B. CLAIMS NOT RAISED IN STATE COURT
11 The other claims in this petition were not presented to the Alabama courts in the
1993 Rule 32 Petitions, nor in Bailey$s direct appeal or 1992 Rule 32 Petition. Failure to
raise those claims until now means that Bailey deprived the state courts of “the first
opportunity to hear the claim[s] sought to be vindicated in a federal habeas proceeding.”
Picard v. Connor, 404 U.S. 270, 276 (1971). As to these newly made claims, we apply
the familiar principle that federal courts may treat unexhausted claims as procedurally
defaulted, even absent a state court determination to that effect, if it is clear from state law
that any future attempts at exhaustion would be futile. Snowden v. Singletary, 135 F.3d
732, 737 (11th Cir.), cert. denied, 119 S. Ct. 405 (1998). This precept readily disposes of
Bailey$s remaining ineffective-assistance-of-counsel claims, as well as his claim
concerning the validity of the predicate convictions for purposes of the AHFOA.
Alabama law is clear that a successive petition “shall be denied unless the petitioner
shows both that good cause exists why the new ground or grounds were not known or
could not have been ascertained through reasonable diligence when the first petition was
heard, and that failure to entertain the petition will result in a miscarriage of justice.” Ala.
R. Crim. P. 32.2(b). Bailey has shown no cause why his remaining ineffective-assistance-
of-counsel claims and his AHFOA claim could not have been raised in the 1992 Rule 32
Petition. The Alabama circuit court$s denial of the 1993 Rule 32 petitions on
successiveness grounds in 1994 provides further support that the claims newly made in
this case would similarly fail Rule 32.2(b). Further, if brought at the present time in state
court, the two-year statute of limitations would bar these unexhausted claims (two years
12 after the mandate issued in the direct appeal of Bailey$s conviction). See Ala. R. Crim. P.
32.2(c)(1).
C. EXCEPTIONS TO PROCEDURAL DEFAULT
A habeas petitioner can escape the procedural default doctrine either through
showing cause for the default and prejudice, Murray v. Carrier, 477 U.S. 478, 488 (1986),
or establishing a “fundamental miscarriage of justice,” Schlup v. Delo, 513 U.S. 298,
324-27 (1995). Bailey has not shown any cause for not applying the procedural bar. He
claims that his inability to effect a timely appeal of the April 14, 1992 denial of the 1992
Rule 32 Petition, due to his never receiving notice of the circuit court$s order, constitutes
cause excusing his procedural default. This argument is meritless. The most it could do
is to excuse Bailey$s failure to exhaust claims made in the 1992 Rule 32 Petition (that is,
his failure to appeal the denial of the 1992 Rule 32 Petition to the state court of last resort
in Alabama, see 28 U.S.C. § 2254(c); Rose v. Lundy, 455 U.S. 509, 516-18 (1982)), and
thereby resurrect those claims. The only claims made in the 1992 Rule 32 Petition
concerned (1) ineffective assistance of counsel for not objecting to the racial composition
of Bailey$s jury, and (2) ineffective assistance of counsel for not objecting to the
sufficiency of the State$s proof that the guilty pleas in the predicate convictions used to
sentence Bailey under the AHFOA were voluntary. Bailey apparently has abandoned
these clams as he did not raise them in this petition.
As far as claims not made in the 1992 Rule 32 petition are concerned, whether
good cause existed for his failure to appeal the denial of that petition is irrelevant. In the
13 proceedings on the 1993 Rule 32 Petition, the court found that the claims made in the
1993 Rule 32 Petitions were successive, they would be made no less successive if Bailey
had been granted leave to file an out-of-time appeal of the denial of the 1992 Rule 32
Petition. Claims are successive when they could have been, but were not, raised in an
earlier petition. See Ala. R. Crim. P. 32.2(b). The procedural default that is central to
this case is not Bailey$s failure to appeal the denial of the 1992 Rule 32 Petition, but
rather his failure to raise the presently made claims in the 1992 Rule 32 Petition.
Consequently, Bailey has not shown the requisite cause to excuse his procedural
default. Nor has Bailey established a “fundamental miscarriage of justice.” That
alternative method of escaping procedural default requires a colorable showing of actual
innocence, which Bailey has not made. See Schlup v. Delo, 513 U.S. 298, 324-27 (1995).
For the foregoing reasons, the district court$s dismissal of Bailey$s petition for a writ of
habeas corpus is AFFIRMED.
AFFIRMED.
14 CARNES, Circuit Judge, concurring specially:
I concur in this Court’s affirmance of the district court’s denial of the 28 U.S.C. §
2254 petition and dismissal of the case with prejudice on procedural bar grounds, and I
agree with almost all of the Court’s discussion. The reason I cannot join in the opinion
without reservation is that some of its discussion seems to me to confuse the doctrines of
exhaustion of state remedies and procedural bar.
Of course, those two doctrines are related. They are related in the sense that if it
is futile for a petitioner to return to state court because previous procedural defaults
there will bar any relief, that futility is an “exception” to the exhaustion of state remedies
requirement. We call the futility rule an “exception” to the exhaustion requirement, but
in reality it is just a recognition that when there is a procedural bar that would prevent a
state court from granting relief on a claim, even if that claim is meritorious, there is no
effective state remedy left for the petitioner to exhaust. That is what we have in this case,
so the exhaustion doctrine is not applicable.
If the exhaustion doctrine were applicable, the proper result would be dismissal of
the case without prejudice in order to require the petitioner to seek relief by pursuing his
remaining state court remedies. The dismissal would be without prejudice, because if the
petitioner were unsuccessful with his state remedies, he could return to federal court with
his claims. Instead of dismissing the case without prejudice, the district court in this case
denied the habeas petition and dismissed the case with prejudice. That disposition is the
correct one where a petitioner has no effective state remedies left to exhaust and the
15 district court concludes his claims are either meritless or, as in this case, procedurally
barred.
Pages 6 - 8 of this Court’s opinion is the part that appears to blur the distinction
between and confuse the doctrines or procedural bar and exhaustion. Consider, for
example, the statement that: “if the petitioner simply never raised a claim in state court,
and it is obvious that the unexhausted claim would now be procedurally barred due to a
state law procedural default, the federal court may foreclose the petitioner’s filing in state
court; the exhaustion requirement and procedural default principles combine to mandate
dismissal.” Op. at 6. That and other statements in the opinion at least imply that the result
in this case is based in part on the exhaustion requirement. It is not. The petitioner has
no effective state court remedies left to exhaust. His claims were all procedurally
defaulted in one or another state court proceeding, and accordingly, they are procedurally
barred from consideration in federal court. This is a procedural bar case, not an
exhaustion of state remedies case. The result in this case would have been the same if
there were no exhaustion of state remedies doctrine.