Pruitt v. Jones

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
October 31, 2003
No. 02-16853 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D.C. Docket No. 99-00979-CV-G-S

RODNEY LYNN PRUITT,

Petitioner-Appellant,

versus

RON JONES, Warden
ATTORNEY GENERAL FOR THE STATE OF ALABAMA,

Respondents-Appellees.

__________________________

Appeal from the United States District Court for the
Northern District of Alabama
_________________________
(October 31, 2003)

Before CARNES, MARCUS and WILSON, Circuit Judges.

MARCUS, Circuit Judge:

Rodney Lynn Pruitt, an Alabama prisoner proceeding pro se, appeals the

district court’s dismissal of his 28 U.S.C. § 2254 petition for habeas corpus relief.
We granted a certificate of appealability (“COA”) to consider the following issues:

(1) whether the district court erred by finding that Pruitt’s ineffective-

assistance-of-counsel claims were procedurally defaulted because he did not petition

the Alabama Supreme Court for discretionary review of those claims during his state

collateral review proceedings, and (2) if so, whether the district court further erred by

finding that trial and appellate counsels’ alleged ineffectiveness could not constitute

cause to excuse the procedural default of appellant’s claims on direct appeal.1 We

review the grant or denial of habeas relief de novo. See Sims v. Singletary, 155 F.3d

1297, 1304 (11th Cir. 1998). We review findings of fact for clear error. See id.

Upon thorough review of the record, as well as careful consideration of the

parties’ briefs, we find no reversible error and affirm.

The relevant facts may be briefly stated. On April 18, 1996, Pruitt was

convicted, pursuant to a jury verdict, of first-degree robbery and was sentenced to a

term of life imprisonment without parole. Pruitt appealed his conviction and sentence

to the Alabama Court of Criminal Appeals, arguing that the trial court erred by: (1)

admitting hearsay evidence; (2) admitting evidence of his prior convictions for

impeachment purposes; (3) denying his motion to suppress evidence obtained during

1
Because we find no error on the first issue contained in the COA, we do not reach the
second one.

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his warrantless arrest because the arresting officer lacked probable cause to arrest; (4)

improperly enhancing his sentence on the basis of two convictions that were eligible

for youthful offender consideration; (5) denying him a speedy trial; and (6) convicting

him on the basis of insufficient evidence. On February 28, 1997, the Alabama Court

of Criminal Appeals affirmed his conviction, finding that the first two claims were

not preserved by a contemporaneous objection at trial, and that the remaining claims

were without merit . See Pruitt v. State, 706 So. 2d 865 (Ala. Crim. App. 1997)

(Table). Pruitt then filed a petition for writ of certiorari to the Alabama Supreme

Court, raising only the issues that the Alabama Court of Criminal Appeals held were

not preserved for appellate review: the admission of alleged hearsay evidence and the

use of his prior convictions for impeachment purposes. The Alabama Supreme Court

denied certiorari in August 1997. See Ex Parte Pruitt, 712 So.2d 1127 (Ala. 1997)

(Table).

Thereafter, Pruitt filed a Ala. R. Crim. P. 32 petition for post-conviction relief,

asserting that he received ineffective assistance of counsel at trial because his

attorney failed to: (1) impeach the credibility of the victims, whose identification of

Pruitt to an officer who testified at trial was the basis of his hearsay objection at trial;

(2) preserve and challenge the trial court’s denial of his right to a speedy trial; (3)

object to the state’s introduction of his prior convictions during trial for impeachment

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purposes; (4) advise him that if he testified, his prior convictions could be used to

impeach his credibility; (5) move for a new trial on grounds of insufficient evidence;

and (6) object to the state’s introduction of his prior convictions to enhance his

sentence. In his Rule 32 petition, Pruitt also alleged ineffective assistance of

appellate counsel, but did not specify the grounds for his claim.

The state habeas court summarily dismissed Pruitt’s petition, holding, in

relevant part, that based on his own personal observation as the trial judge at Pruitt’s

trial, Pruitt’s counsel rendered “very able assistance.” On March 26, 1999, the

Alabama Court of Criminal Appeals affirmed the denial of habeas relief and found

that the trial judge had correctly relied on his own first-hand knowledge of the trial

in determining that counsel was not ineffective, citing Ex Parte Hill, 591 So. 2d 462,

463 (Ala. 1991) (holding that trial judge, in reviewing effectiveness of counsel, can

base his determination on his own observation of counsel at trial), and that Pruitt’s

allegations with respect to the ineffectiveness of appellate counsel were not

sufficiently specific to warrant any further proceedings. See Pruitt v. State, 767 So.

2d 420 (Ala. Crim. App. 1999) (Table).

Notably, Pruitt did not petition the Alabama Supreme Court for discretionary

review of the dismissal of his Rule 32 petition, as he could have within fourteen days,

pursuant to Ala. R. App. P. 39(c)(2). Instead, Pruitt filed the present § 2254 petition,

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arguing the following: (1) the trial court erred by admitting hearsay testimony, which

violated his right of confrontation; (2) the trial court erred by allowing testimony

about his prior convictions to be used for impeachment purposes; (3) the trial court

erred by denying his motion to suppress evidence obtained from his warrantless

arrest; (4) his sentence was improperly enhanced by counting two of his convictions

that were committed when he was eligible for youthful offender status; (5) he was

denied his right to a speedy trial; (6) insufficient evidence supported his conviction;

and (7) he was denied the effective assistance of trial and appellate counsel at trial on

numerous grounds.

The magistrate judge issued a Report and Recommendation, in which he

advised that Pruitt’s petition be denied because his claims were procedurally

defaulted and because he failed to establish cause and prejudice or a miscarriage of

justice to excuse the procedural default. The magistrate judge first found that claims

(1) and (2) were procedurally barred because Pruitt raised them on direct appeal from

the denial of his Rule 32 petition and the Alabama Court of Criminal Appeals, which

was the last state court to render a judgment on these claims, clearly and expressly

stated that its judgment was based on a procedural bar -- to-wit, the Alabama Court

of Criminal Appeals determined that Pruitt failed to preserve these claims by not

objecting at trial to the alleged violation of his right to confrontation or to the

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admission of his prior convictions for impeachment purposes. See Johnson v.

Singletary, 938 F.2d 1166, 1173 (11th Cir. 1991) (holding that “[f]ederal review of

a petitioner’s claim is barred by the procedural default doctrine if the last state court

to review the claim states clearly that its judgment rests on a procedural bar”); Sims

v. Singletary, 155 F.3d 1297, 1311 (11th Cir. 1998) (holding that a federal court must

dismiss habeas petition that is based on claims barred by state law, unless the

petitioner can establish cause and prejudice for procedural default or that he is

actually innocent).

The magistrate judge further found that Pruitt’s other substantive claims and

his ineffective-assistance-of-counsel claims were procedurally defaulted because he

did not petition the Alabama Supreme Court for discretionary review of the denial of

those claims during his state collateral review proceedings and it was too late for him

to return to state court to exhaust his claims by filing a petition for certiorari, citing

O’Sullivan v. Boerckel, 526 U.S. 838, 844-45, 119 S. Ct. 1728, 1732-33, 144 L. Ed.

2d 1 (1999). Finally, the magistrate judge concluded that the alleged ineffectiveness

of Pruitt’s counsel did not constitute cause to excuse the default because the claims

that were defaulted were not exhausted. Over Pruitt’s objections, the district court

adopted the R&R and denied Pruitt’s § 2254 petition. This appeal followed.

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 On appeal, Pruitt argues that O’Sullivan v. Boerckel, 526 U.S. 838, 119 S. Ct.

1728, 144 L. Ed. 2d 1 (1999), and Smith v. Jones, 256 F.3d 1135 (11th Cir. 2001),

cert. denied, 534 U.S. 1136, 122 S. Ct. 1081, 151 L. Ed. 2d 982 (2002), do not

require him to petition the Alabama Supreme Court for discretionary review of the

Alabama Court of Criminal Appeals’s decision affirming the denial of his state

petition for post-conviction relief. Pruitt asserts that the requirement of filing a

petition for discretionary review applies to only direct appeals and is not part of the

ordinary appellate review procedure in state collateral review cases in Alabama.

Pruitt also argues that the ineffectiveness of his trial counsel and his counsel on direct

appeal provided adequate cause to excuse the procedural default of his claims on

direct appeal.

A § 2254 habeas petitioner “shall not be deemed to have exhausted the

remedies available in the courts of the State . . . if he has the right under the law of

the State to raise, by any available procedure, the question presented.” 28 U.S.C.

§ 2254(c). “[S]tate 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,” including review by the state’s court of last resort, even

if review in that court is discretionary. O’Sullivan, 526 U.S. at 845, 119 S.Ct. at

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1732-33. “Alabama’s discretionary direct review procedures bring Alabama prisoner

habeas petitions within the scope of the Boerckel rule.” Smith, 256 F.3d at 1140.

The district court did not err by finding that Pruitt failed to exhaust his state

remedies. As we highlighted in Smith, the Seventh Circuit, in White v. Godinez,

concluded that the Boerckel rule applies to a petitioner’s state collateral review

process. See 192 F.3d 607, 608 (7th Cir. 1999) (concluding that there is no

“appreciable difference between direct appeals and post-conviction appeals” with

respect to the application of the Boerckel rule). In order to satisfy the exhaustion

requirement of 28 U.S.C. § 2254(c), “state prisoners [must] file petitions for

discretionary review when that review is part of the ordinary appellate review

procedure in the State.” O’Sullivan, 526 U.S. at 847, 119 S.Ct. at 1733. Consistent

with the purpose of the exhaustion rule, “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.” Id. at 845, 119 S.Ct. at 1732.

State prisoners are not required to present their claims through discretionary review

if such review would be considered “extraordinary.” Id. at 845, 119 S. Ct. at 1733.

Alabama court rules provide for discretionary review in the Supreme Court of

Alabama of decisions by the Alabama Court of Criminal Appeals. See Ala. R. App.

P. 39(c). A petition for further review must be filed within 14 days after the Court

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of Criminal Appeals’s opinion, and a specific format is provided to govern the filing

form and content of the petition. Id. Rule 39(c)(2), (d). Nothing in the foregoing

procedural requirements for discretionary review could be characterized as

“extraordinary,” as we understand O’Sullivan.

In sum, Pruitt failed to petition the Alabama Supreme Court for discretionary

review of the dismissal of his Rule 32 petition, as he could have within fourteen days,

pursuant to Ala. R. App. P. 39(c)(2). Nothing in Boerckel’s reasoning suggests that

a different rule should apply in state post-conviction appeals as opposed to direct

appeals. Accordingly, we find no error in the district court’s conclusion that Pruitt

failed to exhaust his state remedies by not petitioning the Alabama Supreme Court for

discretionary review of the denial of his state habeas petition.

AFFIRMED.

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