Tomlin v. Patterson

Filing 43

Order GRANTING Pet's 22 MOTION for Leave to File Supplemental Pleading as set out. The State is to respond to the motion NLT 9/17/2015. After receipt of the State's response, the motion will be taken under submission. Signed by Judge Callie V. S. Granade on 8/18/2015. (copy mailed to Pet on 8/18/15) (tot)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
PHILLIP WAYNE TOMLIN,
Petitioner,
v.
TONY PATTERSON,
Respondent.

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Civil Action No. 10-120-CG-B

ORDER
Phillip Wayne Tomlin, proceeding pro se, filed a § 2254 habeas petition
in which he raised thirty claims challenging his conviction and sentence for
the murder of two people on January 2, 1977. (Doc. 1). This Court denied
Tomlin habeas relief on all claims. (Doc. 32). Tomlin appealed, and the
Eleventh Circuit Court of Appeals vacated this Court’s order without
prejudice to resolve the issues Tomlin raised in claim 30. (Doc. 40). In its
remand order, the Court of Appeals specifically directs this Court “to (1)
determine whether the ex post facto issues raised in Tomlin’s § 2254 reply
brief were properly before the judge; (2) if so, decide those issues; (3) issue a
decision on Tomlin’s motion to supplement his § 2254 petition; and (4) if the
judge grants that motion, decide the ex post facto and due process, fair
warning claims raised in Tomlin’s proposed supplement.” (Doc. 40, pp. 5 – 6).
The Court finds it prudent to first determine whether the motion to
supplement should be granted.

On March 11, 2010, the Court docketed Tomlin’s habeas petition. (Doc.
1). The State filed its response on June 29, 2010 (Docs. 9 – 12), acknowledged
this is Tomlin’s first habeas petition, and averred it “was timely filed under
the statute of limitation of 28 § U.S.C. 2244(d).” (Doc. 9, p. 10). The State
further noted in its answer, “Tomlin’s claims have been fully exhausted
through available state remedies as required by 28 § U.S.C. 2254(b),
including presentation to the state court of last resort.” (Doc. 9, p. 11). Thus,
“Tomlin’s claims are ripe for determination by this Court.” (Doc. 9, p. 12).
Tomlin timely replied on December 3, 2010. (Doc. 19).
After filing his reply but before the magistrate judge issued her report
and recommendation, Tomlin filed a motion for leave to file a supplemental
pleading. (Doc. 22). In his motion, Tomlin explained that he wished to expand
on his legal argument in Claim 30 in light of newly issued case law that is
binding in this Circuit and relevant to his case. (Doc. 22 pp. 1 – 3). His motion
and proposed supplemental pleading reference the “Billy Joe Magwood
Opinions,” a series of cases scrutinizing the same capital murder statutes
referenced in Tomlin’s case, which reached the United States Supreme Court
while his petition remained pending.1 (Doc. 22-1, p. 16).

The Supreme Court reversed and remanded Magwood to the Eleventh
Circuit Court of Appeals to reconsider his fair-warning claim after concluding
that claim was not procedurally barred under the circumstances in that case.
Magwood v. Patterson, 561 U.S. 320, 339 (2010). The Court of Appeals also
recently decided “[w]here precedent that is binding in this circuit is
overturned by an intervening decision of the Supreme Court, we will permit
an appellant to raise in a timely fashion thereafter an issue or theory based

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Magwood murdered the Sheriff of Coffee County, Alabama on March 1,
1979, two years after Tomlin committed his crimes. Magwood v. Culliver, 481
F. Supp. 2d 1262, 1265 (2007). Pursuant to state law at that time, the trial
court sentenced him to death by electrocution. Id. In December 2011, the
Court of Appeals affirmed the district court’s grant of habeas relief, thus
vacating Magwood’s death sentence after a lengthy appeals process.
Magwood v. Warden, Alabama Dep’t of Corr., 664 F.3d 1340, 1342, 1349 (11th
Cir. 2011). The Court of Appeals determined Magwood’s case violated the
fair-warning requirement of the Due Process Clause because it lacked
aggravating circumstances necessary to support a sentence of death. 664 F.3d
at 1347 – 50. Tomlin is sentenced to life without parole under the same
capital murder statutes, but he similarly argues he cannot be sentenced
pursuant to that statutory scheme absent aggravating circumstances. (Doc. 1,
p. 51; Doc. 19-2, pp. 75 – 81). Tomlin brought the Magwood cases to the
Court’s attention in his motion to supplement, but this Court did not rule on
the motion.
In his reply brief and his motion to supplement, Tomlin presented his
constitutional claims based on Ex Post Facto Clause and fair warning
violations. (Doc. 40, p. 5). District judges must resolve all claims a habeas
on that new decision while his direct appeal is still pending in this Court.”
United States v. Durham, No. 14-12198, 2015 WL 4637900, at *1 (11th Cir.
Aug. 5, 2015). Although Durham is not exactly on point, it is analogous as
Tomlin sought to expound on his legal theories in Claim 30 after the Supreme
Court and Court of Appeals issued new decisions while his petition remained
pending.
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petitioner presents concerning constitutional violations. Clisby v. Jones, 960
F.2d 925, 936 (11th Cir. 1992). Because this Court overlooked Tomlin’s
motion to supplement, the Court of Appeals determined that it violated
Clisby, and ordered the Court to further consider the merits of these claims.
(Doc. 40, p. 5).
After reviewing the record in this case, the Court of Appeals’ remand
order, and the recent series of Magwood opinions, the Court finds it necessary
to grant the motion to supplement. See also Magwood v. Patterson, 561 U.S.
320, 355, 130 S. Ct. 2788, 2810 (2010) (Kennedy, J., dissenting) (“The Court’s
new exception will apply not only to death penalty cases like the present one,
where the newly raised claim appears arguably meritorious…. It will apply to
all federal habeas petitions…”). The motion is therefore GRANTED (Doc.
22), and the State is ORDERED to respond to the motion no later
than THIRTY DAYS (30) from the date of this order. After receiving the
State’s response, the Court will take the issues raised in Claim 30 and the
motion to supplement under submission in accordance with the Eleventh
Circuit’s remand order. (Doc. 40, p. 5).
DONE and ORDERED this 18th day of August, 2015.
/s/Callie V. S. Granade
UNITED STATES DISTRICT JUDGE

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