Dixon v. Crabtree

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MICHAEL ANGELO DIXON, AIS #000248282 Petitioner, v. CHADWICK CRABTREE,^[1] Warden Limestone Correctional Facility Respondent.

Civil Action No. 1:20-cv-303-TFM-N

United States District Court, S.D. Alabama, Southern Division

July 6, 2023

REPORT AND RECOMMENDATION

KATHERINE P. NELSON, UNITED STATES MAGISTRATE JUDGE

Petitioner Michael Angelo Dixon (“Dixon”), an Alabama prisoner proceeding without counsel (pro se), initiated this action by filing a petition for a writ of habeas corpus under 28 U.S.C. § 2254 (Doc 1).^[2] The assigned District Judge referred Dixon's habeas petition to the undersigned Magistrate Judge for appropriate action. See S.D. Ala. GenLR 72(b). Under S.D. Ala GenLR 72(a)(2)(R), the undersigned is authorized to require responses, issue orders to show cause and any other orders necessary to develop a complete record, and to prepare a report and recommendation to the District Judge as to appropriate disposition of the petition, in accordance with 28 U.S.C. § 636(b)(1) and Rules 8(b) and 10 of the Rules Governing Section 2254 Cases in the United States District Courts. Pursuant to this authority, the undersigned has thoroughly reviewed Dixon's petition, the answer filed by Respondent, the record, and all other filings in this action and recommends that the petition be dismissed as barred by the doctrines of exhaustion and procedural default.

I. RELEVANT BACKGROUND

On January 30, 2018, in the Circuit Court of Mobile County, Alabama (Case No. CC-16-6094), a jury convicted Dixon of first-degree robbery in violation of Ala. Code § 13A-8-41(a), and on March 8, 2018, the circuit court sentenced him to 360 months' imprisonment. (Doc. 10-1, pp. 17-20). At the sentencing hearing, Dixon gave oral notice of appeal and was appointed appellate counsel. (Doc. 10-1, p. 19).

A. Direct Appeal

On direct appeal to the Alabama Court of Criminal Appeals (“ACCA”), Dixon's court-appointed counsel filed a brief and a motion to withdraw from representation pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967),^[3]asserting he had found no meritorious issues for the ACCA to review on appeal. (Doc. 10-3). The ACCA permitted Dixon's appointed counsel to withdraw and gave Dixon permission to file pro se a list of issues he wanted the ACCA to review on appeal.

(Doc. 10-4). In response, Dixon asked the ACCA to review only one enumerated issue- whether he had been constructively, or actually, denied the effective assistance of counsel at trial. (Doc. 10-5, p. 6). Embedded in his argument, but not separately itemized, Dixon also suggested he had been denied a fair trial. (Doc. 10-5, pp. 9-10). The ACCA found no colorable issues and affirmed the circuit court's judgment by memorandum opinion issued August 31, 2018. (Doc. 10-7). Dixon sought no further review on direct appeal, and the ACCA issued a certificate of judgment on September 19, 2018. (Doc. 10-8).

B. Alabama Rule 32 Proceedings

Having found no success in the ACCA, Dixon petitioned the Circuit Court of Mobile County, Alabama in November 2018 for post-conviction relief under Alabama Rule of Civil Procedure 32 (“Rule 32 Petition”). (Doc. 10-9, pp. 8-26). In that petition, Dixon argued-like he had in his direct appeal-that he was constructively, or actually, denied the effective assistance of counsel at trial. (Doc. 10-9, pp. 18-25). Dixon's Rule 32 Petition also challenged for the first time the effectiveness of his court-appointed appellate counsel. (Doc. 10-9, p. 24). In addition, Dixon tersely alleged he had been denied a fair trial and access to the courts, but he did not separately identify these as claims for relief. (Doc. 10-9, pp. 22-23).

The circuit court dismissed Dixon's Rule 32 Petition. (Doc. 10-9, pp. 50-58). As to his claim for constructive denial of counsel, the circuit court ruled that Dixon failed to plead, and the record failed to support, that trial counsel was “inert” or that Dixon was otherwise deprived of the “guiding hand of counsel” as required to state a claim for constructive denial of counsel. (Doc. 10-9, pp. 53-54). As to Dixon's alternate theory that he had received ineffective assistance of counsel, the circuit court found that trial counsel's strategy was reasonable and did not support an ineffective assistance of counsel claim. (Doc. 10-9, pp. 54-56). The circuit court also dismissed Dixon's claims challenging the effectiveness of his appellate counsel. (Doc. 9, pp. 56-58).

Dixon appealed to the ACCA. (Doc. 10-9, p. 60). His supporting brief listed only two issues for appeal: (1) “Constructive Denial/Ineffective Assistance of Trial Counsel” and (2) “Denial/Ineffective Assistance of Appellate Counsel”. (Doc. 10-10, p. 3). In keeping with his other filings, Dixon again made surface-level references to being denied a fair trial and to suffering various other constitutional violations, but he never identified them as claims for relief. (Doc. 10-10, pp. 6-7).

The ACCA affirmed the dismissal of Dixon's Rule 32 Petition by memorandum opinion issued January 31, 2020. (Doc. 10-12). In the ACCA's view, Dixon's appellate brief failed to satisfy Alabama Rule of Appellate Procedure 28(a)(10) which requires that an appellant's argument contain not only the appellant's contentions but also the reasons therefore, with citations to the record and sufficient legal authority. (Doc. 1012, p. 2). Furthermore, the ACCA reasoned, even if the arguments had been properly presented to the court, Dixon's ineffective assistance claim still lacked merit because of the deference due to trial counsel's strategy decisions and the presiding judge's view of whether those decisions were reasonable. (Doc. 10-12, pp. 3-7). Because Dixon's claims related to his trial counsel failed, so too did his claims related to appellate counsel. (Doc. 12, p. 7).

Dixon asked the ACCA to reconsider. (Doc. 10-13). His application for rehearing, which largely restated arguments he had previously made, was summarily overruled on February 21, 2020. (Doc. 10-13; Doc. 10-14).

Next Dixon petitioned the Alabama Supreme Court for a writ of certiorari. (Doc. 10-15). He identified the issue presented to include whether “trial counsel violated his right to a fair trial” and pointed summarily to the Bill of Rights, the First Amendment, and “a substantive, fundamental Due Process right.” (Doc. 10-15, p. 13); (Doc. 10-15, p. 15-16) (fleetingly referencing a fair trial issue). The Alabama Supreme Court summarily denied Dixon's petition for a writ of certiorari on April 10, 2020. (Doc. 10-16).

C. Federal Habeas Proceedings

Having been denied relief in the Alabama courts, Dixon filed this habeas action in May 2020. (Doc. 1). Dixon offers three theories for why he is entitled to relief: (1) that he was denied effective assistance of trial counsel; (2) that he was convicted for a different crime than the one charged in his indictment; and (3) that he was denied a fair trial. (Doc. 4).

The Respondent, through the Office of the Attorney General of the State of Alabama (“the State”), filed an answer asserting that Dixon's habeas petition is due to be dismissed with prejudice as procedurally defaulted. (Doc. 10). Dixon filed a “rebuttal” to the State's answer dated September 24, 2020. (Doc. 11).

On May 28, 2021, the undersigned issued an order explaining that Dixon's habeas claims appeared to be unexhausted and/or procedurally defaulted. (Doc. 13).

Dixon was given an opportunity to show cause why his habeas petition should not be dismissed, and he filed a reply on July 22, 2021. (Doc. 13; Doc. 14). Dixon also filed a motion to supplement the record with information pertaining to a separate criminal case involving the unauthorized possession of a firearm, the dismissal of which he contends is relevant to his habeas petition. (Doc. 15). For the reasons set forth below, Dixon's habeas petition and his motion to supplement the record should be denied.

II. ANALYSIS

In his habeas petition, Dixon asserts three grounds for relief:

Ground One - Dixon's trial counsel rendered unconstitutionally ineffective assistance by making repeated statements to the jury that Dixon was “guilty of stealing,” over Dixon's objections. (“Ineffective Counsel Claim”)

Ground Two - Dixon was convicted and sentenced for first-degree robbery, but the indictment only charged second-degree robbery. (“Indictment Claim”)

Ground Three - Trial counsel's errors, consisting of the errors asserted in Ground One as well as others, denied Dixon a “substantive right to a fair trial.” (“Fair Trial Claim”)

As explained in more detail below, all three claims are unexhausted and procedurally defaulted.

A. Grounds Two and Three are unexhausted, and Grounds One, Two, and Three are procedurally defaulted.

28 U.S.C. § 2254(b)(1) provides that “[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that ... the applicant has exhausted the remedies available in the courts of the State...” (emphasis added). Exhaustion has not occurred if “[the petitioner] has the right under the law of the State to raise, by any available procedure, the question presented.” 28 U.S.C. § 2254(c). Practically speaking, this means that Alabama's courts must have had a chance to rule on Dixon's federal claims before those claims can come to this Court through a federal habeas petition.^[4]

The Supreme Court has described the exhaustion requirement like this:

“Because the exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts, ... state prisoners must give the state courts one full opportunity to resolve

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