Walker v. State

320 So.3d 1

Earnest Lee WALKER

v.STATE of Alabama

CR-18-0098

Court of Criminal Appeals of Alabama.

March 13, 2020

Rehearing Denied May 22, 2020

Certiorari Denied August 21, 2020

Alabama Supreme Court 1190746

Earnest Lee Walker, appellant, pro se.

Steve Marshall, atty. gen., and John J. Davis, asst. atty. gen., for appellee.

MINOR, Judge.

Earnest Lee Walker appeals the Mobile Circuit Court's summary dismissal of his Rule 32, Ala. R. Crim. P., petition for postconviction relief. Walker's appeal presents these issues: (1) whether Walker was constructively denied the assistance of counsel; (2) whether Walker's trial counsel was ineffective for allegedly failing to properly investigate his case and prepare for trial; (3) whether Walker's trial counsel was ineffective for allegedly providing Walker erroneous advice about sentencing and Walker's eligibility for parole; (4) whether Walker's sentences are illegal because they were enhanced by allegedly invalid convictions; (5) whether Walker's appellate counsel was ineffective for allegedly failing to ensure that the record in his direct appeal was complete; (6) whether Walker's trial counsel was ineffective for allegedly preventing Walker from testifying in his own defense at trial; (7) whether Walker's right to the counsel of his choice was violated; (8) whether the circuit court erred in not addressing pro se issues that Walker allegedly raised in the first three Rule 32 petitions but that his counsel did not raise in Walker's fourth amended petition; and (9) whether the circuit court erred in adopting the proposed order the State submitted. For the reasons discussed below, we hold that the summary dismissal of Walker's petition was appropriate.

Facts and Procedural History

Walker was convicted, following a jury trial, on March 4, 2009, of first-degree burglary, see § 13A-7-5(a)(2), Ala. Code 1975; first-degree sexual abuse, see § 13A-6-66(a)(1), Ala. Code 1975; attempted first-degree sodomy, see § 13A-4-2 and § 13A-6-63, Ala. Code 1975; and obstructing justice, see § 13A-8-194, Ala. Code 1975. The circuit court applied the Habitual Felony Offender Act ("the HFOA"), see § 13A-5-9, Ala. Code 1975, in sentencing Walker, who had at least five prior felony convictions. The circuit court sentenced Walker to life imprisonment without the possibility of parole on the first-degree burglary conviction and to life imprisonment on each of the remaining convictions. The circuit court ordered that the sentences were to run consecutively.

This Court affirmed Walker's convictions and sentences by an unpublished memorandum. See Walker v. State (No. CR-08-1521), 75 So. 3d 1228 (Ala. Crim. App. 2010) (table).¹ The Alabama Supreme Court denied Walker's petition for a writ of certiorari. Ex parte Walker, 83 So. 3d 593 (Ala. 2010). This Court issued the certificate of judgment, making Walker's judgments of conviction final, on May 7, 2010.

This Court's memorandum affirming Walker's convictions and sentences stated:

"In August 2007, P.R., the victim, lived on Spruce Street in Mobile, with three children, and she worked at a local hospital. Walker, who lived on the victim's street, worked for the victim as her yardman. P.R. did not know Walker's name because she referred to him as her ‘yardman’ and she always paid him in cash. According to P.R., at the time of her assault, Walker was the only yardman that she had.

"On Saturday, August 25, 2007, P.R. arrived home around midnight and noticed that her front door was ajar. However, because she saw no damage, she assumed that a relative might have left the door open. Nothing in the house seemed to be out of place or missing. P.R. fell asleep on the couch in the front room of her house.

"She later awoke to take a call, but went back to sleep. Thereafter, she was awakened by a man, who had his penis out of his pants, standing over her asking her if she ‘wanted this.’ (R. 150, 178.) The man attempted to force P.R. to put his penis in her mouth. P.R. resisted and struggled while scratching him. P.R. pleaded for him not to hurt her and she offered him money. He began strangling P.R., and she eventually fell to the floor and attempted to play dead. He then began touching P.R.'s vagina area and inserted an object into it. Thereafter, he wiped her hands and nails with some kind of cloth. P.R. later identified her ‘yardman’ as the man who did all of this to her.

"After the man left, P.R. called 911, and paramedics soon arrived to treat her injuries. After P.R. was treated and released from a local hospital, she returned to her home and discovered that a DVD player, DVDs, and PlayStation games were missing, as well as a John Cena wrestler T-shirt. With regard to the victim's injuries, her fingernails were broken off beyond the quick, she was bleeding from her vagina, she had bruises around her neck, and her eyes were bright red from strangulation. She had a vaginal laceration that had to be sutured by a physician at the hospital.

"On Sunday, August 26, 2007, City of Mobile Police Department Officer Tilford Saunders responded to two calls for assistance regarding domestic matters from a residence on Spruce Street. Rosa Moore called the police regarding disputes between her and her boyfriend, Walker. Walker, however, did not give Officer Saunders his correct name either time, but instead gave him the name of Clint Walker. Officer Saunders did not observe any marks or scratches on Walker.

"Subsequently, sometime after 4:00 a.m. on Sunday, Officer Saunders received a call to a rape in progress on Spruce Street at P.R.'s house. Upon his arrival, Officer Saunders observed blood leading from the front door all the way back through the house to the laundry room. He saw P.R. in a white gown and he could see that blood was dripping from her vaginal area and that her panties had been torn. Officer Saunders noticed that Walker and his son were standing on the street outside. He also noticed that Walker had changed his clothes from those that he was previously wearing when the officer responded earlier to the domestic calls. Both Walker and his son were detained by Officer Saunders. After P.R. informed Officer Saunders that neither man was the man who attacked her, they were released.

"At the hospital, Officer Saunders informed P.R. that he had brought her yardman down to the scene of the crime and that she had indicated that he was not the man who had assaulted her. P.R. told Officer Saunders that the man that she saw after the attack was not wearing the same clothes which had confused her. The description that P.R. gave Officer Saunders was of a skinny black male who was medium height, clean-shaven head, wearing a black T-shirt and some jeans. Officer Saunders asked P.R. several times if she knew who had done this, and she responded that she thought it was her yardman because he sounded like her yardman.

"Officer Saunders went off duty at 8:00 a.m. on the morning of the crime and arrived back at work at around 7:00 p.m. that evening. When he came back to work, Officer Saunders located Walker near the scene of the crime. Walker once again gave the officer a false name, Clint Walker. Officer Saunders performed a Terry [v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968),] pat-down search of Walker because the Spruce Street area was known for burglaries and he had stopped Walker earlier in August for carrying a large plastic bag full of teddy bears. Officer Saunders observed that Walker was carrying a large plastic bag, a clear bag that you could see through, that contained a DVD player, DVDs, and PlayStation games that were spilling out of the top of the bag. Officer Saunders inquired about the contents of the plastic bag, and Walker responded that he obtained the items from his family and friends and that some of the games belonged to his children. Walker consented to allow Officer Saunders to look in the bag and informed the officer that the items were not stolen. During the search, Officer Saunders noticed that the DVD player had the serial number scratched off. Officer Saunders contacted his supervisor, who instructed him to tell Walker that if the items in the bag were his, that he could bring proof or a receipt to police headquarters and that the items would be returned to him if he could prove that they were his.

"Shortly after his encounter with Walker, Officer Saunders received another domestic dispute call to the same residence on Spruce Street where he had previously responded to two calls the day before. The same complaining witness, Rosa Moore, informed him that the subject's name was not Clint Walker, but in fact Earnest Walker. Thereafter, Walker was detained by police in the area and was arrested for obstruction of justice for giving a false name to Officer Saunders.

"City of Mobile Police Department Detective Joanne Watson observed Walker after his arrest and noticed that he had fresh scars and scratches on him. She called P.R. and asked her if she had any items that were missing from her home. P.R. described the items which Detective Watson testified appeared to be the exact same items sitting in front of her that had been seized from Walker. One item that was missing from the victim's residence was a John Cena wrestler T-shirt, which was found in a garbage can in front of the residence where Walker was living at the time of the crime."

Walker timely filed the instant petition on February 7, 2011.² (C. 26-147.) Walker amended his petition four times, and the State filed an answer and a motion to dismiss each petition. (C. 736, 794, 1201, 1214, 1224, 1228, 1270.) In his fourth amended petition, Walker alleged: (1) that he was constructively denied counsel between the time of his preliminary hearing and his arraignment 11 months later (C. 1228); (2) that his trial counsel "failed to properly advise [Walker] about sentencing and the trial court gave [Walker] incorrect advice on time to be served on a 25-year sentence" (C. 1232); (3) that his sentences are ...