Lowery v. Barrows

Filing 37

ORDER adopting Report and Recommendations re 31 Report and Recommendations. Petitioner's objections are overruled and Petitioner's federal habeas petitions is denied.Ordered by Judge W. Louis Sands on 9/20/2012 (bcl)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ALBANY DIVISION
WILLIAM LOWERY,
Petitioner,
v.
DONALD BARROW, Warden,
Respondent.

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Case No.: 1:09-CV-70 (WLS)

ORDER
Before the Court is a Recommendation (Doc. No. 31) from United States
Magistrate Judge Thomas Q. Langstaff, filed October 13, 2011. It is recommended that
Petitioner’s petition (Docs. 3, 9) for federal habeas relief be denied. Plaintiff timely
submitted an objection to Judge Langstaff’s Recommendation entitled, “Petitioner’s
Written

Objection

in

Transverse

to

the

Magistrate

Judge’s

Order

and

Recommendation.” (Doc. 32).
As Judge Langstaff noted, Petitioner was indicted by the Worth County grand
jury for malice murder, felony murder, and aggravated assault on October 15, 2002.
Following a jury trial and the return of a guilty verdict on November 21, 2003, Petitioner
was sentenced to life imprisonment on the malice murder charge, after having the
aggravated assault conviction merged into the murder conviction, and having the felony
murder conviction vacated by operation of law. The aggravated assault conviction
merged into the malice murder conviction for sentencing purposes. Petitioner’s motion
for a new trial was filed on December 8, 2003, and amended on November 29, 2004.

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The trial court conducted a hearing on the motion on November 3, 2005, and denied the
motion on August 14, 2006. Petitioner’s conviction and sentence were affirmed on
direct appeal June 4, 2007. Lowery v. State, 282 Ga. 68 (2007).
In his objection, citing to Chase v. State, 277 Ga. 636 (2004), Petitioner’s
contends that “[t]he sentencing court . . . failed to indict, instruct, specifically define,
then enter a limiting instruction on this essential element under proper jury guidance to
the now newly required attempt to commit a ‘violent’ injury theory.’” (Doc. 32 at 3). To
clarify, in Chase, the Georgia Supreme Court reversed the conviction of appellant,
finding that the trial court failed to inform the jury that appellant had to have attempted
to commit a violent injury on the victim in order to be found guilty of the charge of
aggravated assault. Chase, 277 Ga. at 640. The Court noted that “the failure to inform
the jury of an essential element of the crime charged is reversible error because the jury
is left without appropriate guidelines for reaching its verdict.” Id. (citing Ancrum v.
State, 197 Ga. App. 819 (1990)). Per Plaintiff, he could not have reasonably raised his
Chase objection in 2002 when he was convicted because Chase had not yet been
decided.1 (Doc. 32 at 4).
To begin, Petitioner asserted eight (8) grounds for relief in his original and
amended federal habeas petitions, none of which included a ground that the trial court
failed to inform the jury of the essential elements of the crime of aggravated assault
during its instruction. The closest ground for relief raised in this respect was ground
seven (7): Petitioner’s contention that his conviction was obtained on a void indictment

Any argument that the Chase case, if applicable for justifying a reversal of Petitioner’s conviction, could
not have been raised prior to the instant objection is unavailing since Chase was decided on February 2,
2004, and the record reflects that Petitioner was still actively pursuing his state case during the period
from November 29, 2004 (when he filed an amended motion for a new trial), to January 14, 2008 (when
he filed his state habeas petition).

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in violation of his “due process” due to the fact that the indictment did not contain
“every essential element.” (Doc. 3 at 8). Judge Langstaff nonetheless recommended
denying habeas relief since Petitioner failed to identify specific information not included
in the indictment, or establish that the state habeas court’s finding that this ground
provided no basis for relief was contrary to or an unreasonable application of federal
law. (Doc. 31 at 10).
Therefore, this Court finds that Petitioner, via his objection to the Magistrate’s
Recommendation (Doc. 32), is attempting to add a new ground for relief. However,
Petitioner’s attempt to add additional grounds to his petition, made more than three (3)
years after the filing of his original and amended petitions, should be denied as
untimely.2

Accordingly, this Court will overrule Petitioner’s objection to Judge

Langstaff’s Recommendation as not even presenting a valid objection, but instead
seeking to assert a new ground for relief that is untimely.
Moreover, even if the Court did not find Petitioner’s new ground for relief to be
untimely asserted, a federal court may only grant habeas relief on behalf of a claim
adjudicated on the merits in state court if the adjudication of the claim: 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. 28 U.S.C. § 2254(d).
Petitioner has failed to establish any evidence showing that either of the two exceptions

Additionally, though the Court finds that any effort to add any new grounds to the petition at this
juncture should be denied, the Court also notes that Petitioner did not raise his concerns regarding the
jury instructions on aggravated assault in his appeal to the Georgia Supreme Court, or in his state habeas
petition, and as such, this ground, if it had any merit (see infra), would be procedurally barred. See
Wainwright v. Sykes, 433 U.S. 72 (1977).

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outlined in section 2254(d) would apply. In fact, a review of the trial court’s jury
instructions finds that on the charge of “aggravated assault,” the trial court instructed
the jury as follows:
As charged in count 3 of this indictment, a person commits the offense of
aggravated assault when that person either (1) attempts to commit a
violent injury to the person of another by intentionally shooting such
person with a deadly weapon, or (2) intentionally shoots a person with a
deadly weapon which act places another person in reasonable
apprehension of immediately receiving a violent injury.
(Doc. 15-6 at 104, emphasis added). Thus, this Court finds no evidence that the Court
ran afoul of Chase, or that the jury instruction failed to inform the jury of an essential
element of the crime charged. Therefore, even if the Court considered Petitioner’s new
ground for relief on the merits, it would be similarly overruled.3
This Court has fully reviewed and considered the record. Having found that
Petitioner has not presented any meritorious objection to the findings in the
Magistrate’s October 13, 2011 Recommendation, this Court finds that said
Recommendation should be, and hereby is, ACCEPTED, ADOPTED and made the
Order of this Court, to the extent the same is consistent with this Order, for reason of
the findings made and conclusions stated therein together with the findings made,
reasons stated, and conclusions reached herein. Petitioner’s objection (Doc. 32) is

On November 18, 2011, 22 days after the period for filing objections to the Magistrate’s October 13, 2011
Recommendation expired, Petitioner filed a “Brief in Transverse to All Raised Controverted
Constitutional and Jurisdictional Questions” (Doc. 33). The Court construes this brief as an objection,
and finds that it is untimely, and will therefore not be considered. Additionally, in this untimely
“objection,” Petitioner seems to add additional arguments to his contention that the trial court failed to
instruct the jury on the “intent” to commit a violent injury element of aggravated assault. (Id. at 11).
However, as stated above, even if considered on the merits, this argument fails since the jury charge
contained an instruction on the “attempt to commit a violent injury” element of aggravated assault.
Accordingly, Petitioner has alleged no grounds for overturning the state court’s adjudication on the merits
of his claim.

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OVERRULED. Accordingly, Petitioner’s federal habeas petition (Docs. 3, 9) is hereby
DENIED.
SO ORDERED, this 20th day of September, 2012.
/s/ W. Louis Sands __________________
THE HONORABLE W. LOUIS SANDS,
UNITED STATES DISTRICT COURT

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