Hittson (DEATH PEN.) v. Upton

Filing 42

ORDER: Hittson has until July 11, 2011 to amend his original 28 U.S.C. Section 2254 petition to include the now-exhausted Brady claim or to notify the Court why he cannot so amend. Ordered by Judge Marc Thomas Treadwell on 6/30/2011. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
TRAVIS CLINTON HITTSON,

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Petitioner
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vs.
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STEPHEN UPTON, Warden,
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Respondent
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________________________________:

CIVIL ACTION NO.: 5:01-CV-384 (MTT)

ORDER
On August 30, 2004 this Court granted Petitioner=s Motion for Stay of Federal
Court Proceedings Pending Complete Exhaustion of State Remedies. (Doc. 35). In
this Order, the Court stayed Hittson=s 28 U.S.C. ' 2254 action while he returned to the
state courts to exhaust a claim brought pursuant to Brady v. Maryland, 373 U.S. 83
(1963). (Doc. 35).
Following the grant of this stay, Hittson filed a Petition for Writ of Habeas Corpus in
the Butts County Superior Court in which he raised his unexhausted Brady claim. (Doc.
38, at 1). On October 7, 2005, the state habeas court summarily dismissed Hittson=s
petition. (Doc. 38, at 1). Hittson filed a notice of appeal and a timely Application for
Certificate of Probable Cause to Appeal the habeas court=s denial of his state habeas
petition. (Doc. 38, at 1).
On October 2, 2006, the Georgia Supreme Court granted Hittson=s Application for
a Certificate of Probable Cause to Appeal and remanded the case to the Butts County
Superior Court Awith direction to conduct a hearing in accordance with O.C.G.A. '
9-14-47.@ (Doc. 39). The Georgia Supreme Court Afurther directed [the state habeas

court] to take note of Kyles v. Whitley, 514 U.S. 419, 436 . . . (1995) (stating that the
materiality of suppressed evidence should be >considered collectively, not item by item.=),
in its further consideration of this case.@ (Doc. 39).
Thereafter the parties proceeded with the state habeas action.

Hittson was

apparently denied relief and ultimately filed a Petition for Writ of Certiorari with the United
States Supreme Court on April 21, 2011.

Hittson v. Humphrey, No. 10-10335.

A

search of the docket at www.supremecourt.gov shows that the United States Supreme
Court denied Hittson=s petition on June 10, 2011. Hittson v Humphrey, No. 10-10335.
Judge Fitzpatrick’s August 30, 2004 Order provided:

Petitioner is directed to diligently file a new Petition for Writ of
Habeas Corpus in the appropriate Georgia Superior Court so that the state
may rule on Petitioner=s new Brady claims. This Court shall retain
jurisdiction over the federal habeas corpus petition until Petitioner fully
exhausts his state remedies with respect to the new Brady claims.
Thereafter, in the event the state court (including any state appellate court)
grants Petitioner=s Writ of Habeas Corpus, Petitioner is directed to
diligently notify this Court and the Court will dismiss the federal habeas
corpus action as moot. In the event the state court (including any state
appellate court) denies Petitioner=s Writ of Habeas Corpus, Petitioner is
directed to diligently notify this Court and to amend his original petition to
include the newly exhausted Brady claims.
(Doc. 35, at 8-9) (emphasis in original).
Because it now appears Hittson has been denied relief by the state courts and the
United States Supreme Court, he needs to notify the Court how he plans to proceed with
his federal habeas corpus action. Thus, Hittson has until July 11, 2011 to amend his
original 28 U.S.C. ' 2254 petition to include the now-exhausted Brady claim1 or to notify
1

After Hittson amends his petition, the Court will, pursuant to Rules 4 and 5 of the Rules
Governing Section 2254 Cases in the United States District Courts, enter an Order setting forth
the time for Respondent to file an Answer and supplement the record with all relevant transcripts,
pleadings, and decisions relating to Hittson=s exhaustion of his Brady claim.

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the Court why he cannot so amend.
SO ORDERED, this 30th day of June, 2011.

S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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