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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

WILLIE LEE CONNER, )

)
Petitioner, )
)
v. ) Case No. 1:20-cv-511
)
JEFFERSON S. DUNN, in his official )
capacity as Commissioner of the )
Alabama Department of Corrections, )
)
Respondent. )

______________________________________________________________________________

PETITION FOR WRIT OF HABEAS CORPUS

BY PRISONER IN STATE CUSTODY
____________________________________________________________________________

Matthew J. Clark
Foundation for Moral Law
1 Dexter Avenue
Montgomery, AL 36104
334-262-1245
matt@morallaw.org
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I. INTRODUCTION

Does sentencing a man to life imprisonment for shoplifting a nail gun violate the Eighth

Amendment’s prohibition on cruel and unusual punishment? If so, then Willie Lee Conner is

entitled to federal habeas relief.

Petitioner Willie Lee Conner was convicted by jury trial of first-degree robbery and

sentences on August 29, 2013, by the Baldwin County Circuit Court to life imprisonment under

the habitual felony laws of the State of Alabama. Conner had three prior convictions for theft of

property in the second degree.

On July 5, 2012, Conner was apprehended by Alvin Barnard, loss prevention manager of

Lowe’s home improvement store in Foley, Alabama, after Conner was seen taking a roof nail

“gun” from the store. Barnard, accompanied by another employee, followed Conner from the

store and then escorted Conner back into the store without resistance. When Conner reached into

his pants to retrieve the stolen roof nailer, he stated, “I have a gun,” in reference to the roof

nailer, whereupon both Barnard and his colleague wrestled Conner to the ground. Upon a

thorough search of Conner, Barnard retrieved a small pocket knife and the roof nail “gun.”

Conner then was escorted to an office without resistance where he signed a statement admitting

to theft of a roof nail gun of the value of $249.00.

Conner was charged with first-degree robbery, as well as lesser included offenses of

third-degree robbery and third-degree theft of property,1 to which he pleaded not guilty. The jury

found Conner guilty of first-degree robbery as charged in the indictment. The trial court allowed

1
At the time, third-degree theft of property was a violation of § 13A-8-5, Ala. Code 1975. In
2015, the Alabama Legislature renamed this crime as Theft of Property in the Fourth Degree.
Act 2015-185, § 2. Thus, when Conner argues in this petition for a writ of habeas corpus that he
was guilty of fourth-degree theft of property, he is referring to the third-degree theft of property
charge that was brought against him at his trial.
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the statement Conner made about the “gun” to create a presumption that he was armed with a

deadly weapon, therefore providing one of the two elements required for first-degree robbery.

Nevertheless, the thorough search of Conner at the scene automatically rebutted any presumption

that Conner was actually armed with a gun. While Barnard testified that Conner “struggled”

while they apprehended him, there is no evidence that he used force to try to escape with the

property.

Conner’s offense amounted to theft of property in the fourth degree, punishable by a

maximum penalty of 12 months in jail. He has now served over 7 ½ years and is not eligible for

parole until next year. Not only is Conner’s sentence grossly disproportional under the Eighth

Amendment to the United States Constitution to the actual offense, but Conner is innocent of the

offense for which he was convicted. Normally, a one-year statute of limitation might preclude

the Petitioner from bringing a claim before this Court, but actual innocence of the crime for

which Conner was convicted is an exception to the Antiterrorism and Effective Death Penalty

Act of 1996, 110 Stat. 1214 (“AEDPA”), 28 U.S.C. § 2244(d).

II. PRELIMINARY MATTERS

A. The Parties

Petitioner, Willie Lee Conner, is an inmate at Loxley Community Based

Facility/Community Work Center. The facility is located in Baldwin County at 14880 County

Road 64, Loxley, AL 36551. In 2012, Conner was tried, convicted, and sentenced in the Baldwin

County Circuit Court in Bay Minette, Alabama. Respondent, Jefferson S. Dunn, is the

Commissioner of the Alabama Department of Corrections.

As will be shown below, Conner’s case came to the Alabama Supreme Court twice.

During that time, Roy S. Moore was the Chief Justice of the Alabama Supreme Court, and

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Matthew J. Clark was one of his staff attorneys. Pursuant to the rules of this Court and the

Alabama State Bar, Conner’s attorneys (including Roy S. Moore, who is in the process of

applying to the bar of this Court) have obtained consent from all parties to represent Conner in

this matter. See Local Rule 83.3(i) (requiring attorneys who are admitted to the bar of this Court

to conform to the Alabama Rules of Professional Conduct); Ala. R. Prof. Cond. 1.12(a)

(allowing representation under such circumstances if “all parties to the proceeding consent after

consultation.”).

B. Jurisdiction and Venue

This Court has jurisdiction over the parties and claims pursuant to 28 U.S.C. § 2254.

Venue is proper in this Court pursuant to 28 U.S.C. § 2241(d) because Conner is in custody in

this district and he was convicted and sentenced in this district.

III. FACTS AND PROCEDURAL HISTORY OF MR. CONNER’S CASE

A. Facts

On July 5, 2012, Conner went to a Lowe’s home improvement store in Foley, Alabama.

(R.68-69.)2 Alvin Barnard, one of the store’s loss-prevention managers, was watching Conner

through the store’s video surveillance system. (R.69.) Barnard observed Conner take a roofing

nailer, place it down the front of his pants, and walk out of the store without paying for it. (R.69.)

Conner did not use force or threaten to use force against any person as he left the store. (R.69.)

Barnard and followed Conner out of the store and confronted him along with another loss-

prevention manager. (R.70.) When Barnard approached Conner, he said, “I’m Alan with loss

prevention. I need you to come back into the store.” (R.89.) Conner complied with their request.

(R.70.)

2
The relevant portions of the transcript from Conner’s trial are attached as Exhibit 1.
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Once they were back in the store, Conner, in a very unfortunate choice of words, said, “I

have a gun,” and stuck his hand into his right-front pants pocket. (R.70, 78.) Believing that

Conner was armed and making a threat, Barnard and his colleague wrestled Conner to the ground

and restrained him. (R.70-71.) The two Lowe’s employees then searched Conner. (R.71.) They

found the “nail gun” on him and a folding knife, but they found no firearm on him. (R.71.)

Barnard testified that the knife did not make him fear for his safety; it was only Conner’s

statement that he had a gun that made Barnard fearful. (R.88.)

Conner allowed Barnard to escort him to the security office. (R.71.) On the way, Conner

was complaining that the roofing nailer was hurting him as it kept hitting him in the leg. (R.91.)

According to Barnard’s own testimony, Conner was nothing but cooperative once the nail gun

was removed from his pants. (R.91.) Once they got to the office, Conner signed a statement

admitting to the theft. (R.71, 81-82.) In that statement, he admitted that the value of the nail gun

was $249.00. (R. 81-82.)

Foley Police Officer Andy Forsythe then arrived at the scene, testifying at trial that he

was responding to a call that “[a] subject [was] being detained for shoplifting,” not robbery.

(R.63, emphasis added.) After speaking to the loss prevention managers, Officer Forsythe spoke

to Conner. (R.63-64.) Conner gave a statement to Officer Forsythe after being advised of his

Miranda rights. (R.64.) Officer Forsythe testified as follows about that exchange:

Q. And what did he [Conner] tell you about the events of that morning?

A. He told me that he was indeed attempting to steal the nailer from the store,
by placing it inside his pants. He advised me, once he exited the store, loss
prevention tried to stop him. And he advised me that he did not resist loss
prevention at all, it’s just that he merely lost his balance due to the nailer
being inside of his pants, and that’s what caused it to look like he was
fighting him.

Q. Did he say anything about having any weapons on his person?

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A. He did advise me that he was telling them that he had a gun.

Q. And did he make any statements as to what he meant by that?

A. Yes ma’am. He was saying he had a gun stuffed in his pants, referring to
the nailer that was inside his pants.

(R.64-65.)

B. Conner’s Trial and Direct Appeal

Conner was charged with first-degree robbery, as well as the lesser-included offenses of

third-degree robbery and third-degree theft of property. He pleaded not guilty to all. Conner was

tried by jury before the Baldwin Circuit Court in Bay Minette. The prosecution called Barnard

and the Forsythe as witnesses.

When the prosecution rested, Conner moved for a judgment of acquittal, which was

immediately denied. Specifically, the following exchange occurred:

MR. LOWELL: Your Honor, I make a motion for acquittal at this time.
We’ll not be presenting ---

THE COURT: I’m going to deny your motion at this time.

(R.96.) Due to the trial court’s refusal to let Conner’s counsel explain the grounds for his motion,

Conner was not allowed to argue that the first-degree robbery charge against him was due to be

dismissed because the undisputed evidence showed that he was not armed with a gun.

The defense rested without calling any witnesses, including Conner. When the court was

instructing the jury, it said the following about first-degree robbery:

And the law says that a person commits the crime of Robbery in the First
Degree, if in the course of committing a theft, he uses, or threatens imminent use
of force against the owner of the property, or any other person present, with the
intent to overcome that person’s physical resistance or physical power of
resistance, and in so doing, he is armed with a deadly weapon.

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Therefore, in this case, to sustain a conviction for Robbery in the First

Degree, the State must prove beyond a reasonable doubt each of the following
elements of the Robbery in the First Degree:

First, that the Defendant, Willie Conner, committed, or attempted to

commit the theft of a nail gun;

Secondly, that in the course of committing, or attempting to commit the

theft, or in the immediate flight after the attempt or commission, the Defendant
either used force against the person, the person of the owner of the property, or
another person present, that being Jennifer Byars or Alan Barnard, with intent to
compel acquiescence to the taking of, or escaping with the property;

And thirdly, that the Defendant was armed with a deadly weapon.

...

A deadly weapon is a firearm, or anything manifestly designed, made, or

adapted for the purpose of inflicting death or serious physical injury. And a
deadly weapon includes but is not limited to a pistol.

...

I will tell you that Robbery in the First Degree does not require that actual
force be used to commit the theft. Evidence of threatened or imminent force is
sufficient. The proper inquiry is how the victim reacted to and perceived the
threat. Robbery in the First Degree does not require proof of an actual taking of
the property to support a conviction.

(R.121-24.)

The jury found Conner guilty of first-degree robbery as charged in the indictment.

(R.142-44.) On August 29, 2013, Conner appeared for sentencing. Conner had three prior

felonies (Class C), all of which were for theft of property in the second degree. (R.167-68.)

Because first-degree robbery was a Class A felony, the trial court was constrained to sentence

Conner to either life imprisonment or life imprisonment without the possibility of parole. The

State recommended life without parole. (R.168.) However, the trial court chose to sentence him

to life imprisonment. (R. 170.)

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Conner appealed, raising two arguments: first, that the reference to a gun occurred after

the theft was completed, and therefore his theft could not be converted into a robbery; second, he

did not represent that he was armed because he was referring to the nail gun, not a firearm, when

he said he was armed. There is no evidence that he used force to escape with the property.

Nevertheless, the Alabama Court of Criminal Appeals affirmed Conner’s conviction and

sentence in an unpublished memorandum opinion. Conner v. State (No. CR-12-2005, Jan. 31,

2014), ___ So.3d ____ (Ala. Crim. App. 2014) (table). The court reasoned that, under controlling

precedent, Conner’s statement that he had a gun was part of a continuous course of conduct. The

court also reasoned that, viewing the evidence in the light most favorable to the State, Conner’s

statement that he had a gun was sufficient to satisfy the armed-with-a-deadly-weapon element of

first-degree robbery.

Conner filed a pro-se petition for a writ of certiorari with the Alabama Supreme Court,

arguing only that he could not have been convicted because his verbal statement that he had a

gun occurred after the theft was completed. The Alabama Supreme Court denied his petition in a

6-3 vote. Ex parte Conner, 165 So. 3d 556 (Ala. Sep. 26, 2014). Chief Justice Moore dissented

from the denial of certiorari, arguing that Conner could not have been convicted of first-degree

robbery because the statute creates a presumption that a person is armed when he says so, but

that presumption is rebutted if he is apprehended at the scene and is found not to be armed as he

claimed. See id. at 558-63 (Moore, C.J., dissenting). Justice Murdock also dissented, expressing

similar to concern to Chief Justice Moore’s. See id. at 563-64 (Murdock, J., dissenting). Then-

Justice Parker also dissented but did not write an opinion.

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C. Conner’s First Petition for Post-Conviction Relief

Conner immediately filed a Rule 32, Ala. R. Crim. P., petition, arguing that his counsel

was ineffective for failing to preserve for appeal the argument that he could not have been

convicted for first-degree robbery because he did not have a gun. The trial court denied Conner’s

petition on January 27, 2015. Conner appealed to this Court, which affirmed the trial court’s

dismissal in an unpublished memorandum opinion. Conner v. State (No. CR-14-0703, Dec. 16,

2015), ___ So. 3d ___ (Ala. Crim. App. 2015) (table). In affirming the trial court’s decision, the

Court of Criminal Appeals essentially repeated its analysis from Conner’s first appeal.

Conner again petitioned the Alabama Supreme Court for certiorari, which it again denied.

Ex parte Conner, 203 So. 3d 62 (Ala. 2016). Chief Justice Moore again dissented, arguing that

Conner’s sentence was illegal because he could not have been convicted of first-degree robbery

and unjust because he received a life sentence for stealing a nail gun, a grossly disproportionate

penalty to the crime he committed. See id. at 62-66 (Moore, C.J., dissenting). The Alabama

Supreme Court’s denial of Conner’s petition caught both local and national media attention. See,

e.g., Associated Press, Alabama Man Serving Life for Stealing a Tool: Roy Moore Calls Sentence

Unjust, AL.com, goo.gl/TbvMJM (last updated Mar. 25, 2016); Associated Press, Alabama

Court Refuses Appeal of Man Serving Life for Stealing Tool, New York Daily News,

goo.gl/pR7RhN (Mar. 25, 2016); Associated Press & CBS, Court Refuses Appeal of Man

Serving Life for Stealing Tool, CBS News (March 25, 2016),

https://www.cbsnews.com/news/court-refuses-appeal-of-man-serving-life-for-stealing-tool.

D. Conner’s Second Petition for Post-Conviction Relief

On February 23, 2017, Conner filed a second Rule 32 Petition, claiming that he was

unlawfully arrested, that newly discovered evidence showed he never said he had a gun, and that

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he was denied effective assistance of counsel. The trial court dismissed this petition on August 4,

2017. Conner did not appeal.

E. The Present Petition: Conner’s Final Petition for Post-Conviction Relief

On October 19, 2018, Conner filed the present Rule 32 petition, claiming that his

sentence exceeded the maximum allowed by law because the Eighth Amendment prohibited such

a grossly disproportional penalty to the crime he actually committed, which was theft of property

in the fourth degree. The trial court directed the State to respond. In its response, the State argued

that Conner’s claim was really another attempt to challenge the sufficiency of the evidence, and

consequently it was time-barred, successive, and without merit.

The trial court dismissed Conner’s petition on June 18, 2019. A copy of the trial court’s

order is attached as Exhibit 2. This appeal followed. Conner timely appealed to the Alabama

Court of Criminal Appeals, which affirmed the trial court’s dismissal in a memorandum opinion

dated May 22, 2020. Conner v. State (No. CR-18-1029), ___ So. 3d ___ (Ala. Crim. App. May

22, 2020) (table). Conner timely filed an application for rehearing, which was overruled on June

12, 2020. Conner timely petitioned the Alabama Supreme Court for a writ of certiorari, which it

denied on August 21, 2020.

Conner has therefore exhausted his state remedies in pursuit of this claim. Conner

has been in prison since February 20, 2013, over seven and a half years.

V. STANDARDS OF REVIEW

28 U.S.C. § 2254(d) provides:

An 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 with respect to any
claim that was adjudicated on the merits in state court proceedings unless the
adjudication of the claim:

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(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the
state court proceeding.

When a state court does not issue a decision on the merits of the petitioner’s federal

claim, such as by dismissing the claim on state procedural grounds, then the petitioner is entitled

to de novo review. Cone v. Bell, 556 U.S. 449, 472 (2009). Consequently, the Alabama courts’

decision to reject Conner’s Eighth Amendment claim is due to no deference at all.

VI. EIGHTH AMENDMENT CLAIM

The Eighth Amendment to the United States Constitution, applicable to the States

through the Fourteenth Amendment, states, “Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const., amend. VIII. The

Cruel and Unusual Punishment Clause prohibits “extreme sentences that are grossly

disproportionate to the crime.” Graham v. Florida, 560 U.S. 48, 60 (2010) (citations and

quotation marks omitted). The Supreme Court established the following framework in Graham

for determining whether a sentence is grossly disproportionate: “A court must begin by

comparing the gravity of the offense and the severity of the sentence.... In the rare case in which

this threshold comparison leads to an inference of gross disproportionality[,] the court should

then compare the defendant's sentence with the sentences received by other offenders in the same

jurisdiction and with the sentences imposed for the same crime in other jurisdictions.... If this

comparative analysis validates an initial judgment that the sentence is grossly disproportionate,

the sentence is cruel and unusual.” Graham, 560 U.S. at 60 (citations, internal quotation marks,

and alterations omitted). The portion of Graham quoted above does not apply solely to juvenile

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offenders, but restates the Supreme Court’s jurisprudence in evaluating whether a sentence for a

term of years is grossly disproportional to the offense committed. See, e.g., United States v.

Merchant, 506 Fed. App’x 959, 960 & n.1 (11th Cir. 2013) (citing this portion of Graham for an

Eighth Amendment analysis of imprisonment for a term of years).

Conner was guilty of the offense of theft of property in the fourth degree, a violation of §

13A-8-5, Ala. Code 1975, because he did not take the property from the presence of another and

because the value of the nail gun did not exceed $500. Conner could not have been convicted of

first-degree robbery, a violation of § 13A-8-41, Ala. Code 1975, because the evidence showed he

did not have a gun.

Section 13A-8-41, Ala. Code 1975, provides:

(a) A person commits the crime of robbery in the first degree if he

violates Section 13A-8-43 and he:

(1) Is armed with a deadly weapon or dangerous instrument; or

(2) Causes serious physical injury to another.

(b) Possession then and there of an article used or fashioned in a manner

to lead any person who is present reasonably to believe it to be a deadly weapon
or dangerous instrument, or any verbal or other representation by the defendant
that he is then and there so armed, is prima facie evidence under subsection (a) of
this section that he was so armed.

(c) Robbery in the first degree is a Class A felony.

(Emphasis added.)

This crime requires a person to be armed in order to be convicted. As subsection (b) of §

13A-8-41 says, a verbal representation by a defendant that he is so armed with a deadly weapon

is only prima facie evidence that he is so armed. In evidentiary terms, therefore, a defendant’s

statement that he is armed with a deadly weapon creates a rebuttable presumption that he is so

armed. As stated in the Commentary to §§ 13A-8-40 through 13A-8-44,

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A difficult area is robbery by use of an unloaded, inoperable or dummy

weapon. The basic theory of this article is to protect the citizen from fear for his
or another’s health and safety. This should be aggravated only when there is
actual serious physical injury inflicted or when the robber possesses an instrument
which is readily capable of inflicting such injuries. However, it is sometimes
difficult to prove that defendant actually was armed with a dangerous weapon,
unless he is apprehended at the scene. In an effort to balance the needs for
enforcement with the demands for appropriate penalties, § 13A-8-41 makes
possession of an object reasonably believed to be a “deadly weapon” or
“dangerous instrument,” as defined in § 13A-1-2, or a representation by the
defendant that he has one, prima facie evidence that he is armed. If in fact the
defendant refutes this, he may still be convicted of robbery in a lesser degree.

(Emphasis added.)

If Conner had managed to get away with the property and was apprehended later, then he

could have been charged with first-degree robbery. But because Conner was apprehended at the

scene, and because the undisputed evidence shows that he was not armed with a gun, he could

not have been convicted of first-degree robbery. Thus, in this case, Conner rebutted the

presumption that he was armed with a gun. Consequently, the trial court’s denial of his motion of

acquittal as to that charge, its complete failure to instruct the jury on this point, and Conner’s

conviction for first-degree robbery were all improper. As a matter of law, he could not have been

convicted of the crime for which he was charged.

The offense of fourth degree theft of property is a Class A misdemeanor and carries a

maximum sentence of one year imprisonment. But Conner received a life sentence. The sentence

is grossly disproportional to the offense committed.

Alabama does not authorize a life sentence for fourth-degree theft of property. § 13A-8-

5(b), Ala. Code 1975 (designating fourth-degree theft of property as a Class A misdemeanor); §

13A-5-7(a)(1), Ala. Code 1975 (limiting the sentence of a Class A misdemeanor to no more than

one year in jail). No jurisdiction in the United States authorizes a life sentence for shoplifting.

See Exhibit 3 (attached) (listing shoplifting penalties in every other state). The comparison of

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Conner’s case to the maximum penalty authorized by statute in Alabama and other jurisdictions

meets Graham’s requirements of validating the inference of gross disproportionality. Thus,

Conner’s sentence violates the Cruel and Unusual Punishment Clause of the Eighth Amendment.

VII. SUFFICIENCY OF THE EVIDENCE

During the state court proceedings, the trial court and the Alabama Court of Criminal

Appeals rejected Conner’s claim partly because they believed it was really a challenge to the

sufficiency of the evidence, which had been rejected in his first Rule 32 petition. Consequently,

the state courts concluded that Conner was procedurally barred from raising the same matter

again. Conner maintained, and continues to maintain, that reframing the issue as a challenge to

the sufficiency of the evidence rather than a constitutional challenge is a way of dodging the

question presented.

Out of an abundance of caution, if this Court disagrees and believes that this is really a

challenge to the sufficiency of the evidence, then Conner maintains under 28 U.S.C. §

2254(e)&(f) that he can establish by clear and convincing evidence that the jury’s factual

determination that he was armed with a gun is incorrect. The undisputed evidence shows that he

was not armed with a gun. Therefore, if the Court believes that this is a challenge to the

sufficiency of the evidence, Conner maintains that he has met his burden of proof.

VII. ACTUAL INNOCENCE

Under the AEDPA, a petitioner must file his habeas petition within a year of when the

judgment becomes final. 28 U.S.C. § 2244(d). However, the Supreme Court has recognized an

“actual innocence” exception to AEDPA’s statute of limitations. See McQuiggin v. Perkins, 569

U.S. 383, 386 (2013). This has also been called the “miscarriage of justice exception,” and the

Supreme Court has held that it survived AEDPA’s passage. Id. at 393. “[A] prisoner’s proof of

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actual innocence may provide a gateway for federal habeas review of a procedurally defaulted

claim of constitutional error.” Id. “A showing of actual innocence provides an exception to the

time-bar under AEDPA.” Mims v. United States, 758 Fed. Appx. 890, 892 (11th Cir. 2019).

In this case, as explained above, Conner is actually innocent of robbery in the first

degree. The jury’s conviction of Conner was based upon a misreading of the first-degree robbery

statute. The undisputed evidence shows that he was not armed with a gun at the scene, and

therefore the prima facie evidence that he was “so armed” was rebutted when he was

apprehended at the scene without a firearm. Because he could not have been convicted of first-

degree robbery as a matter of law, he is actually innocent of that crime.

VIII. PRAYER FOR RELIEF

WHEREFORE, premises considered, Conner prays for the following relief:

1. A hearing on these claims pursuant to 28 U.S.C. § 2254(e);

2. Granting the writ of habeas corpus under 28 U.S.C. § 2241; and

3. Any further relief that the Court deems equitable and just.

Respectfully submitted,

/s/ Matthew J. Clark

Matthew J. Clark
Counsel for Willie Lee Conner
Foundation for Moral Law
P.O. Box 4086
Montgomery, AL 36103
Tel.: 334-262-1245
Fax.: 334-262-1708
matt@morallaw.org

October 16, 2020

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