Bryant v. Toney et al, No. 1:2018cv00363 - Document 26 (S.D. Ala. 2021)

Court Description: MEMORANDUM OPINION & ORDER, Petitioner's 23 Objections are OVERRULED based on the reasons articulated in the Respondent's 25 Repy to Objections. The 16 REPORT AND RECOMMENDATION is ADOPTED as set out. Fred Lee Bryant's 5 Petition is DISMISSED w/prejudice. Final judgment shall issue separately as set out. Signed by District Judge Terry F. Moorer on 9/29/21. (tot) Modified on 9/29/2021 (tot).

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Bryant v. Toney et al Doc. 26 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION FRED LEE BRYANT, AIS #00226616, Petitioner, vs. DEBORAH TONEY, Warden, Limestone Correctional Facility, et al., Respondents. ) ) ) ) ) ) ) ) ) ) ) CIV. ACT. NO. 1:18-cv-0363-TFM-N MEMORANDUM OPINION AND ORDER On August 11, 2021, the Magistrate Judge entered a Report and Recommendation which recommends this petition brought pursuant to 28 U.S.C. § 2254 be dismissed with prejudice and denial of a certificate of appealability. See Doc. 16. Petitioner timely objected to the recommendation and Respondent timely replied. See Docs. 23, 25. Petitioner, through counsel, asserts several objections to the recommendation. The Court will address each in turn. The Court also notes that any objections not specifically raised are waived and the Court will review for clear error on those matters. Petitioner argues that “the [Magistrate Judge’s] opinion completely ignores . . . the argument made by the Petitioner that he could not have raised the issue that the trial court erred in allowing the witnesses to invoke the Fifth Amendment in front of the jury on direct appeal.” Petitioner insists that the Court of Criminal Appeals, on review of the trial court’s denial of his Rule 32 petition, improperly denied this claim as waived because it was not raised on direct appeal. This objection fails because Petitioner did not raise this claim in his § 2254 petition. Instead, Petitioner brought a claim via Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed Page 1 of 3 Dockets.Justia.com 2d 674 (1984), arguing that his trial counsel was ineffective for failing to object to the trial court permitting witnesses to invoke the Fifth Amendment in the presence of the jury. The trial court and Court of Criminal Appeals did not hold that the subject ineffective assistance of counsel claim could have been raised on appeal—rather, they held Petitioner’s Rule 32 claim that the trial court erred in allowing witnesses to invoke the Fifth Amendment in front of the jury could have been raised on direct appeal. Petitioner next objects to the Court’s application of Strickland, arguing that trial counsel’s failure to object to witnesses invoking the Fifth Amendment in the presence of the jury is plainly unreasonable. This objection also fails because Petitioner’s argument fails to account for the “double deference” applied to a Strickland claim on § 2254 review when it has been addressed on the merits by a state court. Here, the Rule 32 trial court noted that Petitioner’s trial counsel used the witnesses’ invocation of the Fifth Amendment in front of the jury as a means to divert blame from her client. The state court noted that this “trial strategy” did not run afoul of Strickland. Petitioner failed to identify, and the Court did not find, any caselaw indicating that the state court unreasonably applied clearly established federal law in crediting his trial counsel’s diversion of blame strategy. Finally, Petitioner argues that the Court should at least grant a COA on the issues in the § 2254 petitioner. The Court disagrees. Petitioner’s objections fail to create debatable issues of law as his objections still fail to overcome the reasoned analysis of the recommendation Based on the above and for the reasons articulated in the Respondent’s reply to objections (Doc. 25), the Petitioner’s objections (Doc. 23) are OVERRULED. Therefore, after due and proper consideration of the issues raised, and a de novo determination of those portions of the recommendation to which objection is made, the Report and Recommendation of the Magistrate Page 2 of 3 Judge is ADOPTED as the opinion of this Court. Accordingly, it is ORDERED that Fred Lee Bryant’s petition (Doc. 5) is DISMISSED with prejudice. Final judgment shall issue separately in accordance with this order and Fed. R. Civ. P. 58. DONE and ORDERED this 29th day of September, 2021. /s/Terry F. Moorer TERRY F. MOORER UNITED STATES DISTRICT JUDGE Page 3 of 3

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