TOLLETTE v. WARDEN GDCP
Filing
23
ORDER denying 20 Motion for Discovery; denying 20 Motion for Evidentiary Hearing. Ordered by U.S. District Judge CLAY D LAND on 10/22/2014 (esl)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
LEON TOLLETTE,
:
:
Petitioner,
:
:
VS.
:
:
WARDEN, Georgia Diagnostic
:
and Classification Prison,
:
:
Respondent.
:
_______________________________
NO. 4:14-CV-110 (CDL)
ORDER
Pending before the Court is Petitioner Leon Tollette’s Motion
for Leave to Conduct Discovery and an Evidentiary Hearing.
20).
(ECF No.
For reasons discussed below, this motion is denied.
I. FACTUAL AND PROCEDURAL HISTORY
Tollette is an inmate on death-row at the Georgia Diagnostic
and Classification Prison in Jackson, Georgia.
On August 5, 1996,1
he “was indicted for malice murder, felony murder, armed robbery,
and other crimes, stemming from the shooting death of John Hamilton,
a Brinks employee who, at the time, was picking up cash from a
SouthTrust bank.”
742, 745 (2005).
Tollette v. State, 280 Ga. 100, 100, 621 S.E.2d
On November 3, 1997, Tollette pled guilty to all
charges in the indictment.
(ECF No. 8-21 at 7-8).
“At the
conclusion of the sentencing trial, the jury fixed the sentence for
1
Tollette was originally indicted by the Muscogee County Grand Jury on
March 19, 1996 and reindicted on August 5, 1996. (ECF No. 8-1 at 15-24).
malice murder at death.”2
Tollette, 280 Ga. at 100-01, 621 S.E.2d
at 745.
With new counsel, Tollette filed a Motion for New Trial on March
11, 1998 and a First Amended Motion for New Trial on October 20, 1998
(ECF No. 8-5 at 72-86).
After holding an evidentiary hearing, the
court denied the motion on January 28, 1999.
(ECF No. 8-5 at 103).
The Georgia Supreme Court affirmed Tollette’s conviction and
sentence on November 7, 2005.
Tollette, 280 Ga. at 100, 621 S.E.2d
at 745.
Tollette filed an Application for Writ of Habeas Corpus in the
Butts County Superior Court on August 7, 2007.
(ECF No. 9-26). After
the court held an evidentiary hearing on January 13, 22-23, 2009,
it denied relief in an order dated February 13, 2013.
(ECF Nos. 10-21
to 10-24; 12-24).
Tollette filed an Application for a Certificate of Probable
Cause to Appeal (“CPC application”) in the Georgia Supreme Court on
May 20, 2013.
(ECF No. 12-26).
Finding the “claims properly raised
by the Petitioner [were] without arguable merit,” the Georgia Supreme
Court denied the CPC application on March 28, 2014 and denied
2
The jury found two statutory aggravators: Tollette committed the murder
during the commission of the capital felony of armed robbery and he
committed the murder for monetary gain. Tollette, 280 Ga. at 101, 621
S.E.2d at 745. Tollette was also sentenced to a concurrent life sentence
for armed robbery, two concurrent twenty year sentences for the two
aggravated assaults, a concurrent sentence of five years for possession
of a firearm by a convicted felon, and a consecutive sentence of five years
for possession of a firearm during the commission of a crime. (ECF No.
8-5 at 39-42).
-2-
Tollette’s Motion for Reconsideration on April 22, 2014.
(ECF Nos.
12-27; 12-29).
Tollette filed a Petition for Writ of Habeas Corpus by a Person
in State Custody in this Court on May 6, 2014.
(ECF No. 1).
He
raises eight claims and, in the pending motion, seeks discovery
and/or an evidentiary hearing regarding three of these claims.
II.
STANDARDS GOVERNING DISCOVERY AND EVIDENTIARY HEARING REQUESTS
“A habeas petitioner, unlike the usual civil litigant in federal
court, is not entitled to discovery as a matter of ordinary course.”
Bracy v. Gramley, 520 U.S. 899, 904 (1997).
an evidentiary hearing in most cases.
Nor is he entitled to
The Supreme Court has
explained that “[a]lthough state prisoners may sometimes submit new
evidence in federal court, AEDPA’s3 statutory scheme is designed to
strongly discourage them from doing so.”
Cullen v. Pinholster, 131
S. Ct. 1388, 1401 (2011).
In Pinholster, the Supreme Court explained that if a claim has
been adjudicated on the merits in state court proceedings, this
Court’s review under both 28 U.S.C. § 2254(d)(1) and (2)4 “is limited
to the record that was before the state court.”
3
Id. at 1398, 1400
The Antiterrorism and Effective Death Penalty Act of 1996.
4
Under the deferential review standard of §2254(d), relief may not be
granted for a claim adjudicated on the merits in state court unless the
adjudication of the claim (1)”resulted in a decision that was contrary to,
or involved an unreasonable application of, … Federal law” 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)(1)-(2).
-3-
n.7.
Tollette argues that “Pinholster’s limitations apply only to
additional evidence adduced via an evidentiary hearing, not to
evidence garnered through discovery.”
in original).
in Pinholster.
(ECF No. 20 at 7)(emphasis
For support, Tollette cites Justice Breyer’s opinion
(ECF No. 20 at 7) (citing Pinholster, 131 S. Ct at
1412 (Breyer, J., concurring in part and dissenting in part)).
Justice Breyer concurred in the Court’s opinion that “review is
limited to the record that was before the state court that adjudicated
the claim on the merits.”
Pinholster, 131 S. Ct. at 1398 (Breyer,
J., concurring in part and dissenting in part)).
He explained that
“[a]n offender who believes he is entitled to habeas relief must first
present a claim (including his evidence) to the state courts.
If
the state courts reject the claim, the federal court may review that
rejection on the basis of the materials considered by the state
court.”
Id. at 1412.
According to Justice Breyer, “there is no role
in (d) analysis for a habeas petitioner to introduce evidence that
was not presented to the state courts.”
Id.
Based on these
statements, the Court cannot agree with Tollette’s assertion that
Justice Breyer took the “narrower position” that Pinholster’s
limitations do not apply to “evidence garnered through discovery.”
(ECF No. 20 at 7).
Instead, the Court in Pinholster did not address discovery in
the context of habeas petitions.
However, its “linkage to …
discovery … is unquestionably present.
Coddington v. Cullen, No.
CIV-S-01-1290 KJM GGH DP, 2011 U.S. Dist. LEXIS 57442 at *2 (E. D.
-4-
Cal. May 27, 2011).
After Pinholster, this Court cannot hold an
evidentiary hearing in which new evidence is introduced to support
a claim if the state courts decided the claim on the merits.5
Nor
can the habeas petitioner expand the record, under Rule 7 of the Rules
Governing Section 2254 Cases in the United States District Courts,
to include evidence not considered by the state courts.
Upton, 644 F.3d 1145, 1160 (11th Cir. 2011).
Greene v.
If this Court cannot
consider any newly discovered evidence, “it would seem that obtaining
discovery ... would be futile.”
Tharpe v. Humphrey, No. 5:10-CV-433
(CAR), 2012 U.S. Dist. LEXIS 6824 at *9 (M. D. Ga. Jan. 20, 2012);
see also Runningeagle v. Ryan, 686 F.3d 758, 773 (9th Cir. 2012)
(explaining that a habeas petitioner is not entitled to discovery
in federal court because his claim is governed by 28 U.S.C. §
2224(d)); Moore v. Mitchell, 708 F.3d 760, 780 (6th Cir. 2013)
(explaining that, after Pinholster, federal courts cannot consider
the “fruits of discovery” even if parties jointly move to admit the
evidence into the record).
For claims not decided on the merits in state court, 28 U.S.C.
§ 2254(e)(2) “restricts the discretion of federal habeas courts to
consider new evidence.”
Pinholster, 131 S. Ct. at 1401.
If a habeas
petitioner has failed to develop the factual basis for his claims
5
Of course, if this Court should ultimately find, based solely on the
evidence that was presented to the state court, that the state court’s
decision does not pass §2254(d)’s test, then the Court would not be
prohibited from considering newly discovered evidence. Pinholster, 131
S. Ct. at 1412 (Breyer, J., concurring in part and dissenting in part).
-5-
in state court proceedings as a result of his own lack of diligence,
he must satisfy the stringent requirements of 28 U.S.C. § 2254(e)(2)
before the Court can allow discovery or hold an evidentiary hearing.6
Isaacs v. Head, 300 F.3d 1232 (11th Cir. 2002); Crawford v. Head,
311 F.3d 1288 (11th Cir. 2002).
The United States Supreme Court has explained that “[b]y the
terms of its opening clause [28 U.S.C. § 2254(e)(2)] applies only
to prisoners who have ‘failed to develop the factual basis of a claim
in State court proceedings.’”
Williams v. Taylor, 529 U.S. 420, 430
(2000) (quoting 28 U.S.C. § 2254(e)(2)).
A petitioner has “failed
to develop the factual basis of a claim” only if “there is a lack
of diligence, or some greater fault, attributable to the prisoner
or the prisoner’s counsel.”
Id. at 432.
If discovery is not barred by Pinholster or § 2254(e)(2), Rule
6 of the Rules Governing Section 2254 Cases in the United States
District Courts provides that “[a] judge may, for good cause,
6
28 U.S.C. § 2254(e)(2) provides:
If the applicant has failed to develop the factual basis of a
claim in State court proceedings, the court shall not hold an
evidentiary hearing on the claim unless the applicant shows
that—
(A) the claim relies on-(i) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
previously unavailable; or
(ii) a factual predicate that could not have been
previously discovered through the exercise of due diligence;
and
(B) the facts underlying the claim would be sufficient to
establish by clear and convincing evidence that but for
constitutional error, no reasonable factfinder would have found
the applicant guilty of the underlying offense.
-6-
authorize a party to conduct discovery under the Federal Rules of
Civil Procedure and may limit the extent of discovery.”
A petitioner
establishes “good cause” for discovery if “specific allegations
before the court show reason to believe that [he] may, if the facts
are fully developed, be able to demonstrate that he is confined
illegally and is therefore entitled to relief.”
394 U.S. 286, 300 (1969).
Harris v. Nelson,
“[G]ood cause for discovery cannot arise
from mere speculation” and “discovery cannot be ordered on the basis
of pure hypothesis.”
Arthur v. Allen, 459 F.3d 1310, 1311 (11th Cir.
2006).
“In cases where an applicant for federal habeas relief is not
barred from obtaining an evidentiary hearing by 28 U.S.C. §
2254(e)(2) [or Pinholster], the decision to grant such a hearing
rests in the discretion of the district court.”
Schriro v.
Landrigan, 550 U.S. 465, 468 (2007); see also Rule 8 of the Rules
Governing Section 2254 Cases in the United States District Courts.
When deciding whether to grant a hearing, the “court must consider
whether such a hearing could enable an applicant to prove the
petition’s factual allegations,” taking into consideration the
“deferential standards prescribed by 28 U.S.C. § 2254.”
550 U.S. at 474.
Schriro,
An evidentiary hearing is not necessary if the
issues can be resolved by reference to the record developed in the
state courts.
Id.
-7-
III.
APPLICATION OF THESE STANDARDS TO TOLLETTE’S REQUESTS
A. Discovery and an evidentiary hearing related to Tollette’s
ineffective assistance of counsel claim
Tollette requests discovery to develop his claim that trial
counsel, Stephen Craft and Robert Wadkins, ineffectively used Dr.
Daniel Grant, a neuropsychologist they hired to examine Tollette
prior to trial.
(ECF No. 20 at 10-16).
He alleges that during the
state habeas evidentiary hearing, both Craft and Wadkins were asked
why they retained Grant and why they did not let him testify at trial.
(ECF No. 20 at 11).
While both lawyers gave different reasons for
hiring Grant, they “gave an uncannily identical answer when asked
what Dr. Grant ultimately told them about his ability to testify.”
(ECF No. 20 at 11).
me on the stand.”
Both lawyers stated that Grant said, “Don’t put
(ECF No. 20 at 11).
However, during the state
habeas evidentiary hearing, Grant denied making this statement.
He
testified that he asked Wadkins how the information he gathered might
be helpful, questioned how he could testify, and told both lawyers
that prison adaptability was a legitimate avenue they should pursue.
(ECF No. 20 at 11-12).
According to Tollette, this “raises at least a plausible
likelihood” that trial counsel conspired to fabricate a story to
cover-up the real reason they failed to call Grant to testify—their
“inattention at the time of trial.”
(ECF No. 20 at 12).
In order
to find evidence of this conspiracy, Tollette asks the Court to order
-8-
Wadkins and Craft to turn over any “documented communication” 7
regarding his case that took place between them from the date
Tollette’s state habeas petition was filed, August 7, 2007, until
the date the state habeas evidentiary concluded, January 23, 2009.
(ECF No. 20 at 14).
Tollette also seeks to depose or submit
interrogatories to Wadkins, Craft, and Grant.
Finally, “Tollette
submits an evidentiary hearing is appropriate to sort through these
factual discrepancies.”
(ECF No. 20 at 15).
The first question is whether the state courts decided this
ineffective assistance of counsel claim on the merits.
Georgia law
provides that “a claim of ineffectiveness of trial counsel must be
asserted at ‘the earliest practicable moment.’”
Bailey v. State,
264 Ga. 300, 300, 443 S.E.2d 836, 837 (1994) (quoting Smith v. State,
255 Ga. 654, 656, 341 S.E.2d 5, 6 (1986)).
Because new counsel, David
Grindle, was appointed to represent Tollette during his motion for
new trial, he had to raise his ineffective assistance of trial counsel
claim during those proceedings.
He did so. (ECF No. 8-5 at 84).
The court conducted a hearing regarding this claim on January
25, 1999.
(ECF No. 9-2).
The State called Wadkins to testify and
questioned him regarding the retention of Grant.
45).
(ECF No. 8-5 at
Wadkins stated that he asked Grant to evaluate Tollette to find
any possible mitigating evidence and, after his examination, “Grant
7
This includes all “emails, inter- or intra-office memoranda, letters,
documentation regarding phone calls, notes of meetings, and any other
memorializations of interactions relating to Mr. Tollette’s case.” (ECF
No. 20 at 14).
-9-
called … and said don’t put me on the stand, don’t use me.”
No. 9-2 at 45).
(ECF
Grindle cross-examined Wadkins regarding his
failure to call Grant to testify.
(ECF No. 8-5 at 63-72).
Tollette
currently complains that he did not receive a “‘full and fair state
court hearing’” because Grindle put up no evidence during the motion
for new trial hearing.
(ECF No. 22 at 5) (quoting Boyd v. Allen,
592 F.3d 1274, 1304 (11th Cir. 2010)).
However, the record does not
disclose that Grindle was prevented from presenting any evidence or
testimony.
It appears that he simply chose not to do so.
Following
the hearing, the state habeas court summarily denied Tollette’s
motion for new trial.
(ECF No. 8-5 at 103).
On direct appeal, appellate counsel argued that trial counsel
improperly failed to present testimony from Grant.
45).
(ECF No. 9-4 at
The Georgia Supreme Court “concluded that the trial court did
not err in denying Tollette’s claim of ineffective assistance of
counsel.”
Tollette, 280 Ga. at 107, 621 S.E.2d at 750.
No one
disputes this was a decision on the merits.
Tollette raised his trial counsel ineffectiveness claim again
before the state habeas court and that court concluded the claim was
“barred by res judicata.”
(ECF No. 12-24 at 5).
Tollette correctly
asserts that, despite this bar, the claim is “ripe for a merits review
in this federal habeas proceeding.”
(Doc. 20 at 10).
That review,
however, is governed by 28 U.S.C. § 2254(d) because the Georgia
Supreme Court decided the claim on the merits.
Thus, this Court must
determine whether [Tollette] has satisfied § 2254(d) based only on
-10-
the “record that was before the state court that adjudicated the claim
on the merits.”
Pinholster, 131 S. Ct. at 1398.
Tollette cannot
“overcome [the Georgia Supreme Court’s] adverse … decision with new
evidence introduced in a federal habeas court and reviewed by that
court in the first instance effectively de novo.”
Id. at 1399.
Therefore, this Court denies Tollette’s request for discovery and
an evidentiary hearing regarding this issue.8
Tollette argues that a federal court’s review is restricted to
the record that was before the state court only when the claim was
decided on the merits during the post-conviction process, not during
the direct appeal.
restriction.
(ECF No. 22 at 4).
Pinholster contains no such
Whenever a claim has been decided on the merits in the
state courts, whether on direct appeal or post-conviction, this
Court’s review of that claim is governed by § 2254(d).
According
to Pinholster, any review under § 2254(d) “is limited to the record
that was before the state court that adjudicated the claim on the
merits.”
Pinholster, 131 S. Ct. at 1398.
While not necessary to its decision, the Court notes that
Tollette’s ineffective assistance of trial counsel claim was found
to be meritless on two occasion subsequent to the Georgia Supreme
8
Should the Court ultimately determine that the Georgia Supreme Court’s
decision on this issue was based on unreasonable factual findings, was
contrary to federal law, or involved an unreasonable application of federal
law, the Court would no longer be prohibited from considering new evidence.
Pinholster, 131 S. Ct. at 1412 (Breyer, J., concurring in part and
dissenting in part). Therefore, if, after reviewing the parties’ merits
briefs, the Court makes such a decision, it will revisit this issue.
-11-
Court’s decision.
First, during his state habeas proceedings,
Tollette presented a cascading ineffective assistance of counsel
claim:
Direct appeal counsel was ineffective for not presenting a
claim that motion for new trial counsel was ineffective for not
properly litigating trial counsel’s effectiveness.
at 20).
(ECF No. 12-24
To decide whether Tollette “was prejudiced by direct appeal
counsel’s failure to raise ineffectiveness against prior counsel,
the habeas court ‘[had to] examine the underlying ineffectiveness
of trial counsel claim and determine whether that claim would have
had a reasonable probability of success.’”
(ECF No. 12-24 at 20)
(quoting Hall v. Lewis, 286 Ga. 767, 770, 692 S.E.2d 580, 586 (2010)).
After
examining
the
evidence
presented
at
the
state
habeas
evidentiary hearing, the court concluded “Tollette has not satisfied
his burden of showing that trial counsel’s preparation for the
mitigation phase was inadequate or that he was prejudiced by their
pre-trial decisions.”
(ECF No. 12-24 at 43).
Because Tollette’s
underlying ineffective assistance of trial counsel claim lacked
merit, the state habeas court found that his ineffective assistance
of direct appeal counsel claim lacked merit.
(ECF No. 12-24 at 42).
Second, in his CPC application, Tollette included his claim
regarding trial counsel’s failure to call Grant.
32-42).
(ECF No. 12-26 at
The Georgia Supreme Court denied the application, finding
that all “claims properly raised by the Petitioner are without
arguable merit.”
(ECF No. 12-27 at 2).
The Eleventh Circuit
recently held that the Georgia Supreme Court’s denial of a CPC
-12-
application “clearly constitutes an adjudication on the merits for
AEDPA purposes.”
2014).
Hittson v. Warden, 759 F.3d 1210, 1232 (11th Cir.
The Court instructed district courts to presume the Georgia
Supreme Court reviewed the record and denied each of the claims
contained in the CPC application on the merits.
Id. at 1232-33, 1252
(explaining that although the state habeas court found a particular
claim to be procedurally defaulted, the federal court must presume
the Georgia Supreme Court rejected the claim “on the merits” when
it summarily denied the CPC application as having “no arguable
merit”).
Under
Hittson,
the
Georgia
Supreme
Court
decided
Tollette’s ineffective assistance of trial counsel claim “on the
merits”
and,
therefore,
this
Court
could
not
consider
newly
discovered evidence when it reviewed that decision under § 2254(d).
Even without considering the state habeas court’s order or the
denial of Tollette’s CPC application, the Georgia Supreme Court
clearly decided this claim on the merits during the direct appeal.
Therefore, the Court’s review is limited to the state court record
and this Court denies Tollette’s request for discovery and an
evidentiary hearing.
B. Discovery related to the Georgia Supreme Court’s
proportionality review
O.C.G.A. §17-10-35(c)(3) requires the Georgia Supreme Court to
determine
“[w]hether
disproportionate
to
the
sentence
the
penalty
of
death
imposed
considering both the crime and the defendant.”
-13-
in
is
excessive
similar
or
cases,
In Tollette’s direct
appeal, the Georgia Supreme Court, citing 23 cases, found that
“considering both the crime and the defendant, … the death sentence
imposed for the murder in this case was neither excessive nor
disproportionate to the penalties imposed in similar cases in
Georgia.”
Tollette, 280 Ga. at 107-08, 621 S.E.2d at 750.
Tollette
alleges Georgia’s proportionality review of death sentences is
“constitutionally infirm in general and as applied.”
at 16).
a
(ECF No. 20
He complains that the Georgia Supreme Court conducts only
“perfunctory
proportionality
analysis,”
which
leads
arbitrary or discriminatory imposition of death sentences.
20 at 22-23).
to
the
(ECF No.
He also alleges the cases cited by the Georgia Supreme
Court are easily distinguishable from his case and many of the cited
cases involve defendants who are no longer under a death sentence.
To support his claim that Georgia’s proportionality review is
infirm, he seeks to depose “at least one person employed with the
Georgia Supreme Court with an understanding of the court’s process
of evaluating, reviewing, researching, and drawing conclusions
regarding proportionality.”
(ECF No. 20 at 23).
If that particular
person was not “involved in making proportionality determinations
in 2005 when Mr. Tollette’s direct appeal was decided,” he wants to
depose another person who was employed by the court during that time.
(ECF No. 20 at 23).
Finally, “Tollette requests any documents held
by the Supreme Court of Georgia related to the process for conducting
proportionality reviews in that court in all capital cases from
January 2005 to the present.”
(ECF No. 20 at 23).
-14-
Tollette overlooks the fact that the United States Supreme Court
has held the Constitution does not require a proportionality review
in any form and has explicitly found it would be error to conclude
“that
Gregg
[v.
Georgia,
proportionality review.”
428
U.S.
153
(1976)]
required
Pulley v Harris, 465 U.S. 37, 46 (1984).
The Court explained that it has “emphasiz[ed] the importance of
mandatory appellate review under the Georgia statute, … [but has not
held] that without comparative proportionality review the statute
would be unconstitutional.”
U.S.
862
(1983)).
Id. at 50 (citing Zant v. Stephens, 462
Furthermore,
the
Court
explained
that
“[p]roportionality review [is] considered to be an additional
safeguard against arbitrarily imposed death sentences,” but it has
never held that “comparative review [is] constitutionally required.”
Id; See also McClesky v. Kemp, 481 U.S. 279, 306-307 (1987) (holding
that “absent a showing that the Georgia capital punishment system
operates in an arbitrary and capricious manner, [the petitioner]
cannot prove a constitutional violation by demonstrating that other
defendants who may be similarly situated did not receive the death
penalty”).
Thus, Petitioner’s claim does not entitle him to habeas
relief and, therefore, there is no good cause for discovery.
In addition, when state law requires proportionality review,
the Eleventh Circuit has cautioned as follows:
A federal habeas court should not undertake a review of
the state supreme court’s proportionality review and, in
effect, “get out the record” to see if the state court’s
finding of fact, their conclusion based on a review of
similar cases, was supported by the “evidence” in the
-15-
similar cases.
To do so would thrust the federal
judiciary into the substantive policy making area of the
state. It is the state’s responsibility to determine the
procedure to be used, if any, in sentencing a criminal to
death.
Moore v. Balkcom, 716 F.2d 1511, 1518 (11th Cir. 1983).
Furthermore, the Eleventh Circuit has specifically rejected the
argument that federal law requires state courts to “make an explicit
detailed account of their comparison.”
1137, 1154 (11th Cir. 1987).
Lindsey v. Smith, 820 F.2d
In doing so, the Court held as follows:
The Constitution does not require a proportionality
review. And we refuse to mandate as a matter of federal
constitutional law that where, as here, state law requires
such review, courts must make an explicit, detailed
account of their comparisons. Based on their own past
experience in reviewing capital punishment cases, state
appellate courts can rationally distinguish between those
individuals for whom the death penalty is an appropriate
sanction and those for whom it is not, without listing in
their opinions the facts that did or did not justify the
imposition of the death penalty in the prior cases.
Id. (internal citations and quotation marks omitted).
Given the fact that proportionality review is not required by
the Constitution, or any other federal law, and because the Eleventh
Circuit precedent expressly forbids a case-by-case comparison of the
review undertaken by the Georgia Supreme Court, Tollette’s request
for discovery on the this issue is denied.
C. Discovery related to Georgia’s lethal injection procedure
In his habeas petition, Tollette contends that the State of
Georgia will violate his constitutional rights if it executes him
in accordance with Georgia’s Lethal Injection Secrecy Act (“Secrecy
-16-
Act”), O.C.G.A. § 42-5-36(d), which became effective on July 1, 2013.9
(ECF No. 20 at 23, 25 n.13).
He argues that “[i]n enacting the
Secrecy Act, the State has announced that it intends to use a drug
of unknown provenance, purchased from a compounding pharmacy whose
experience
and
manufacturing
protocols
remain
a
mystery,
and
composed of ingredients the identity, purity, and freedom from
contamination of which are unknown.”
(ECF No. 20 at 25-26).
Tollette claims the Secrecy Act forces all death row inmates and the
courts to operate with no means of determining whether the drugs the
State of Georgia selects will pass constitutional muster or whether
the inmates will be subjected to unconstitutional pain and suffering
in violation of the Eighth Amendment.
(ECF No. 20 at 26).
Tollette requests the following discovery:
The names of the
compounding pharmacies that manufacture pentobarbital for Georgia;
the names of the sources from which the compounding pharmacies are
obtaining their active pharmaceutical ingredients for the compounded
pentobarbital;
the
qualifications
of
those
employed
at
the
compounding pharmacies and at the sources involved in manufacturing
the
active
pharmaceutical
ingredients;
and
the
names
and
qualifications of the prescribers of lethal injection drugs to the
Georgia Department of Corrections.
(ECF No. 20 at 26-27).
Respondent argues that Tollette’s lethal injection claim is not
9
The Georgia Supreme Court recently determined the Secrecy Act was
constitutional. Owens v. Hill, 295 Ga. 302, 758 S.E.2d 794 (2014) petition
for cert. filed, No. S14A0092 (U.S. filed Aug. 22, 2014).
-17-
properly before the Court because the correct way to challenge lethal
injection procedures is by filing a 42 U.S.C. § 1983 action.
No. 21 at 30).
(ECF
The Eleventh Circuit has held that “[a] [42 U.S.C.]
§ 1983 lawsuit, not a habeas proceeding, is the proper way to
challenge lethal injection procedures.”
Tompkins v. Sec’y, Dep’t
of Corr., 557 F.3d 1257, 1261 (11th Cir. 2009) (citing Hill v.
McDonough, 547 U.S. 573, 579-83 (2006)); see also McNabb v. Comm’r,
Ala. Dep’t of Corr., 727 F.3d 1334 (11th Cir. 2013).
Tollette,
citing Wellons v. Hall, 554 F.3d 923 (11th Cir. 2009), vacated on
other grounds, 558 U.S. 220 (2010), maintains that “[t]he Eleventh
Circuit has also reached the merits of a lethal injection claim in
a habeas proceeding.”
(ECF No. 19 at 6-7).
“[I]n a State where the legislature has established lethal
injection as the method of execution, ‘a constitutional challenge
seeking to permanently enjoin the use of lethal injection may amount
to a challenge to the fact of the sentence itself.’”
Hill, 547 U.S.
at 579 (quoting Nelson v. Campbell, 541 U.S. 537, 644 (2004)).
Thus,
when a prisoner challenges lethal injection as a general matter, he
is challenging the lawfulness of his sentence and should bring the
claim in a habeas action.
Id.
As a practical matter, Tollette does
not need discovery to support a claim that lethal injection,
regardless
of
unconstitutional.
the
protocols
and
procedures
used,
is
However, it would appear that such an attack is
foreclosed by numerous cases upholding the constitutionality of
lethal injection.
See Baze v. Rees, 553 U.S. 35 (2008); DeYoung v.
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Owens, 646 F.3d 1319 (11th Cir. 2011).
If “[t]he complaint does not
challenge the lethal injection sentence as a general matter but seeks
instead only to enjoin respondents ‘from executing [the prisoner]
in the manner they currently intend,’” § 1983 is the appropriate
vehicle for relief.
Hill, 547 U.S. at 580 (citations omitted).
Tollette argues that his challenge, if successful, “necessarily
would bar his execution under the current state of the law in
Georgia.”
(ECF No. 22 at 11).
Just as in Hill, if Tollette’s Eighth
Amendment claim is ultimately successful, it “would not necessarily
prevent the state from executing him by lethal injection.”
547 U.S. at 581.
Hill,
For example, if Tollette established that the
compounding pharmacy or nature of the drug obtained by the State posed
“a substantial risk of serious harm,” the State could potentially
still carry out his execution by obtaining a different drug from an
alternate source, whether that source was a different compounding
pharmacy or some other drug manufacturer.
Farmer v. Brennan, 511
U.S. 825, 847 (1994).
The Court finds the Eleventh Circuit’s holding in McNabb
instructive:
[Petitioner] contends that the district court erred in
dismissing his claim that Alabama’s lethal injection
protocol is unconstitutional. He asserts that because
his claim challenges the entire method of execution … the
district court erred in dismissing his claim because it
determined that the claim was more properly cognizable in
a 42 U.S.C. § 1983 action. His contention fails.
Issues sounding in habeas are mutually exclusive from
those sounding in a § 1983 action. The line of demarcation
between a § 1983 civil rights action and a § 2254 habeas
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claim is based on the effect of the claim on the inmate’s
conviction and/or sentence. A claim is properly raised
under § 1983 when an inmate challenges the circumstances
of his confinement but not the validity of his conviction
and/or sentence. By contrast, habeas corpus law exists
to provide a prisoner an avenue to attack the fact or
duration of physical imprisonment and to obtain immediate
or speedier release.
Usually, an inmate who challenges a state’s method of
execution is attacking the means by which the State intends
to execute him, which is a circumstance of his confinement.
It is not an attack on the validity of his conviction and/or
sentence. For that reason, a § 1983 lawsuit, not a habeas
proceeding, is the proper way to challenge lethal
injection procedures.
Hence, we conclude that the
district court did not err in dismissing [Petitioner’s]
lethal injection challenge in his federal habeas petition.
That avenue of relief is still available to him in a § 1983
action.
McNabb, 727 F.3d at 1344; see also Hill, 295 Ga. at 306, 738
S.E.2d at 799 (explaining that “a habeas petition may only
allege constitutional defects in a conviction or sentence
itself, not defects in the manner in which a sentence is carried
out by various state officers”).
Even if Tollette’s lethal injunction claim was cognizable in
this action, the Court finds that he has not established good cause
for his discovery requests.
Any discovery regarding Georgia’s
current lethal injection procedures is likely to have no relevance
when, and if, Tollette’s execution is scheduled.
As the Georgia
Supreme Court noted, Georgia has recently found it necessary to make
repeated alterations to its lethal injection procedures.
Owens, 292 Ga. 380, 387, 738 S.E.2d 56, 63 (2013).
Hill v.
It is likely that
the procedures will change again before Tollette’s execution is
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scheduled.
Finally, in a recent 42 U.S.C. § 1983 action, the Eleventh
Circuit indicated that an in inmate was not entitled to the types
of discovery that Tollette requests.
The Court explained that
“[n]either the Fifth, Fourteenth, or First Amendments afford [an
inmate] the broad right to know where, how, and by whom the lethal
injection drugs will be manufactured, as well as the qualifications
of the person or persons who will manufacture the drugs, and who will
place the catheters.”
Wellons v. Comm’r, Ga. Dep’t of Corr., 754
F.3d 1260, 1267 (11th Cir. 2014), petition for cert. denied, 134 S.
Ct. 2838 (2014).
For these reasons, the Court denies Tollette’s requests for
discovery regarding Georgia’s lethal injection procedures.
CONCLUSION
Based on the above, the Court denies Tollette’s Motion for Leave
to Conduct Discovery and an Evidentiary Hearing and instructs the
Parties to comply with the June 23, 2014 Scheduling Order for future
briefs.10
(ECF No. 14).
10
The Parties are reminded that, when referring to the record (which
includes Respondent’s 110 exhibits), they are to comply with the citation
format shown in the July 23, 2014 Scheduling Order. (ECF No. 14 at 3-4).
While the Court did accept and consider Tollette’s Memorandum of Law in
Support of his Motion for Leave to Conduct Discovery and an Evidentiary
Hearing, which did not contain the correct citation format, any future
briefs that do not correctly cite the record will not be accepted by the
Court.
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SO ORDERED, this 22nd day of October, 2014.
s/Clay D. Land
CLAY D. LAND
CHIEF UNITED STATES DISTRICT JUDGE
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