ANTHONY v. WARDEN (2018)

ORDER:

Vertis Anthony is an Alabama prisoner serving a 35-year sentence after a jury found him guilty of attempted murder. He seeks a certificate of appealability (“COA”), leave to proceed in forma pauperis (“IFP”), and appointment of counsel in his appeal from the district court’s denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. He argued in the petition that (1) the trial court lacked jurisdiction to convict him because his indictment was constructively amended, (2) his trial counsel rendered ineffective assistance by failing to object when the indictment was constructively amended, (3) his trial counsel rendered ineffective assistance by failing to object when the jury instructions followed the constructively amended indictment, and (4) his conviction violates Alabama law relating to the offenses of felony murder and assault. The district court denied the § 2254 petition after concluding that Anthony’s claims were both procedurally defaulted and meritless.

To obtain a COA, a movant must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When a district court denies a § 2254 petition on a procedural ground, a COA should issue if the movant shows that reasonable jurists would find debatable whether (1) the petition states a valid claim of the denial of a constitutional right, and (2) the district court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

Anthony contends that his indictment was constructively amended because it charged him with “manifesting extreme indifference to human life,” but the jury instead was instructed to determine whether he “direct[ed] indifference to the victim.” The record does not support this contention. The indictment charged Anthony with attempting to cause the death of the victim by shooting him multiple times with a handgun, with the intent to commit the crime of murder. Consistent with this charge, the state presented evidence during the trial that Anthony shot the victim multiple times. The indictment did not mention “manifesting extreme indifference to human life.” The jury was instructed on the elements of attempted murder, but was not instructed to determine whether Anthony “direct[ed] indifference to the victim.” Anthony’s claim that the indictment was constructively amended is meritless. His trial counsel did not render ineffective assistance by failing to make an objection about constructive amendment. See Freeman v. Att’y Gen., 536 F.3d 1225, 1233 (11th Cir. 2008) (explaining that counsel cannot be deficient for failing to raise a meritless claim).

Anthony argues that his conviction violates Alabama law relating to the offenses of felony murder and assault. This argument raises an issue of state law, but not a basis for federal habeas relief. See Wilson v. Corcoran, 562 U.S. 1,5, 131 S.Ct. 13, 178 L.Ed.2d 276 (2010) (explaining that “federal habeas corpus relief does not lie for errors of state law,” as it “is not the province of a federal habeas court to reexamine state-court determinations on state-law questions” (quotation marks omitted) ). Moreover, Anthony was not convicted of either felony murder or assault, this claim does not provide a basis for relief from Anthony’s conviction or sentence.

Regardless of whether Anthony’s § 2254 claims are procedurally barred, reasonable jurists would not debate that his petition does not state a valid claim of the denial of a constitutional right. See Slack, 529 U.S. at 484, 120 S.Ct. 1595. His motion for a COA is DENIED. His motion for leave to proceed on appeal IFP is DENIED AS MOOT. His motion for appointment of counsel is DENIED AS MOOT.

Kevin C. Newsom, UNITED STATES CIRCUIT JUDGE