Wilson (Death Penalty) v. Upton
ORDER DENYING 32 Motion to Stay. Ordered by Judge Marc Thomas Treadwell on 8/26/2011. (tlh)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MARION WILSON, JR.,
CARL HUMPREHY, Warden,
CIVIL ACTION NO. 5:10-CV-489(MTT)
Pending before the Court is Petitioner’s Motion to Stay and Hold in Abeyance
Federal Court Proceedings Pending Exhaustion of State Remedies. For reasons
discussed below, this motion is DENIED.
I. RELEVANT PROCEDURAL HISTORY
On May 29, 1996, a Baldwin County Grand Jury indicted Wilson for malice
murder, felony murder, armed robbery, hijacking a motor vehicle, possession of a
firearm during the commission of a crime, and possession of a sawed-off shotgun.
Wilson v. State, 271 Ga. 811, 812 n.1, 525 S.E.2d 339, 343 n.1 (1991), overruled in part
by O’Kelley v. State, 284 Ga. 758, 670 S.E.2d 388 (2008). Wilson’s trial began on
October 27, 1997. The jury found him guilty of all charges, and on November 7, 1997
the jury recommended the death sentence for malice murder. Id.
Wilson was represented by Tom O’Donnell and Jon Phillip Carr during his trial.
(Doc. 18-4, Resp’t Ex. 90 at 11). O’Donnell was lead counsel and Carr’s “role was to
assist him.” (Doc. 12-6, Resp’t Ex. 54 at 206). O’Donnell remained lead counsel
throughout the trial, but on direct appeal, O’Donnell withdrew because he took a
position as Special Assistant Attorney General working with the Department of Children
and Family Services. (Doc. 12-6, Resp’t Ex. 54 at 229, 232). Carr and John Bradley
represented Wilson during his direct appeal. (Doc. 12-6, Resp’t Ex. 54 at 230). The
Georgia Supreme Court upheld the conviction and sentence on November 1, 1999.
Wilson, 271 Ga. at 824, 525 S.E.2d at 351.
In his state habeas petition, filed on February 1, 2001, Wilson raised “numerous
claims of ineffective assistance of trial and appellate counsel.” (Doc. 18-4, Resp’t Ex.
90 at 10). The state court convened an evidentiary hearing on February 22-23, 2005.
(Doc. 12-5 to 16-13, Resp’t Ex. 54-72). However, the state court did not enter its order
denying habeas relief until November 25, 2008. (Doc. 18-4, Resp’t Ex. 90).
On June 25, 2006, Carr was arrested and accused of indecent sexual activity
with a thirteen year old girl and a fourteen year old girl who had escaped from a halfway
house for troubled youth in Baldwin County. (Doc. 25-2, 25-3, 25-4). In March, 2007,
Carr was sentenced to serve twenty-five years in jail for four counts of child molestation.
Wilson did not inform the state court of Carr’s arrests and convictions. Thus,
even though he now contends that Carr’s convictions are critically important to the
resolution of his claims of ineffective assistance of counsel, he did not seek leave of the
state court to submit evidence of these convictions. In its November 25, 2008 order, the
state court adjudicated Wilson’s ineffective assistance claims on the merits and, as
Wilson points out, the Court gave credit to Carr’s testimony. (Doc. 18-4, Resp’t Ex. 90
Wilson filed his application for a certificate of probable cause to appeal from the
denial of state habeas corpus relief in the Georgia Supreme Court on January 30, 2009.
(Doc. 18-6, Resp’t Ex. 92). Wilson asserted his ineffective assistance of counsel
claims, but never asked the Georgia Supreme Court to consider Carr’s convictions in
assessing the habeas court’s denial of these claims. The Georgia Supreme Court
summarily denied the application. (Doc. 18-9, Resp’t Ex. 95).
On December 19, 2010, Wilson filed his federal habeas corpus petition. (Doc. 1).
On April 4, 2011, he filed numerous documents with this Court showing that Carr was a
convicted child molester. (Doc. 25-1, 25-2, 25-3, 25-4). Wilson moved for leave to
conduct discovery related to Carr’s character and crimes. (Doc. 25-1, Pet’r Br. at 7-12).
The Court denied Wilson’s motion primarily for two reasons. First, Wilson already had
all information regarding Carr’s crimes and conviction that he reasonably could use.
Second, Wilson “had nearly three years after Carr’s arrest and over eighteen months
after Carr’s conviction to raise the issue of Carr’s credibility with the court considering
whether Carr’s representation was ineffective,” but he never did so. (Doc. 28, July 12,
2011 Order at 11). In short, he had not been “reasonably diligent in trying to develop
the factual record while in state court.” Isaacs v. Head, 300 F.3d 1232, 1249 (11th Cir.
2002). Wilson now requests this “Court stay and hold in abeyance his federal habeas
proceedings so that he may return to state court to fully exhaust all facts pertinent to his
ineffectiveness claim.” (Doc. 32, Pet’r Br. at 3).
In Rhines v. Weber, 544 U.S. 269 (2005) the Supreme Court announced the
standard for determining whether to grant a stay in a § 2254 action: The district court
should stay a mixed habeas petition when “the petitioner had good cause for his failure
to exhaust, his unexhausted claims are potentially meritorious, and there is no indication
that the petitioner engaged in intentionally dilatory litigation tactics.” Id. at 278.
The purpose of the stay and abeyance procedure approved in Rhines is to allow
a federal habeas petitioner to pursue unexhausted claims in state court. In this case,
however, Wilson appears to have exhausted his ineffective assistance of counsel
claims. He acknowledges that he raised all of his ineffective assistance of counsel
claims in his state habeas petition and that the state habeas court ruled on these
claims. (Doc. 32, Pet’r Br. at 3-4; Doc. 18-4, Resp’t Ex. 90 at 10-40). Indeed,
Respondent does not allege a failure to exhaust bars the district court from reviewing
any of these claims. Wilson states, however, that he has not exhausted “all relevant
facts pertaining to his claim of ineffective assistance of counsel” because the state
habeas court did not take into account Carr’s 2007 conviction for child molestation.
(Doc. 32, Pet’r Br. at 5).
The exhaustion of state remedies requires that federal habeas corpus petitioners
fairly and adequately present their claims to the state courts before seeking relief in the
federal courts. Courts have explained:
When a federal habeas petitioner raises a claim previously presented in
the state courts, but bases the federal habeas corpus claim upon new
factual allegations, new legal theories, or materially different and stronger
evidence than was presented to the state courts, then the claim has not
been fairly presented in the state courts and the petitioner has failed to
exhaust [his] state remedies in accordance with 28 U.S.C. § 2254(b) and
Rolle v. McNeil, 2008 WL 2620736, at *12 (S. D. Fla. June 30, 2008) (citing Givens v.
Green, 12 F.3d 1041 (11th Cir. 1994); Cruz v. Warden of Dwight Corr. Ctr., 907 F.2d
665, 669 (7th Cir. 1990)(“The exhaustion requirement is not satisfied if a petitioner
presents new legal theories or new factual allegations in federal court which cast [his]
claim in a significantly different light.”). However, “not every new piece of evidence
makes a claim a new one.” Fairchild v. Workman, 579 F.3d 1134, 1148 (10th Cir.
In this case, the fact that Carr was convicted of child molestation approximately
ten years after he represented Wilson at trial and eight years after he represented
Wilson during his appeal does not change the substance of Wilson’s various ineffective
assistance of counsel claims. In other words, this “new piece of evidence” does not
convert Wilson’s various ineffective assistance of counsel claims into new claims.
Fairchild, 579 F.3d at 1149. It is only when the “new evidence so changes the legal
landscape that the state court’s prior analysis no longer addresses the substance of the
petitioner’s claim, [that the district court] must necessarily say that the new evidence
effectively makes a new claim—one that the state court has not adjudicated on the
merits.” Id. That is not the situation here.1 The “new evidence” is impeachment
Petitioner cites two Georgia cases for the proposition that “claims may be revisited in
subsequent habeas corpus proceedings if new facts or a change in the law so warrant.” (Doc.
32, Pet’r Br. at 6)(citing Fleming v. Zant, 259 Ga. 687, 688 (1989) and Johnson v. Zant, 249 Ga.
812, 818 (1982)). This Court’s order does not, of course, prohibit Wilson from filing a
“subsequent habeas corpus proceeding” in the state courts. (Doc. 32, Pet’r Br. at 6). The
Court simply finds that it cannot, pursuant to Rhines, stay this action and hold the federal
habeas proceedings in abeyance while Wilson pursues such a state habeas action.
evidence that Wilson presumably contends is admissible to impeach Carr’s character
for truthfulness.2 While this impeachment evidence may be important, it does not
constitute a new theory of ineffective assistance of counsel. It, at most, simply
buttresses Wilson’s argument that Carr should not be believed. (Doc 12-11, Resp’t Ex.
56, at 770-71; Doc. 12-9, Resp’t Ex. 56, at 609, 621; Doc. 17-9, Resp’t Ex. 83, at 22,
Additionally, Wilson has not shown “good cause” for failing to present this
character evidence while his case was pending in the state habeas court. He had
nearly three years after Carr’s arrest and over eighteen months after Carr’s conviction to
raise in the state habeas proceedings the issue of whether Carr’s transgressions
impeached his credibility. The Court recognizes that Carr’s arrest and convictions
occurred after the evidentiary hearing. That does not explain, however, why Wilson
does not ask the Court to reopen the record to consider this new evidence.
Accordingly, Wilson’s Motion to Stay and Hold in Abeyance Federal Court
Proceedings Pending Exhaustion of State Remedies is DENIED.
Wilson never states specifically why Carr’s convictions are admissible. Had he been
convicted prior to testifying at the state habeas hearing, Wilson could have used the convictions
to impeach Carr’s credibility. See Mullins v. Thompson, 274 Ga. 366, 553 S.E.2d 154 (2001).
The convictions also would be admissible pursuant to O.C.G.A. § 24-9-84.1, which became
effective July 1, 2005. In federal court, the convictions would be admissible to impeach Carr’s
character for truthfulness. Fed. R. Evid. 609. Wilson does not address the issue of whether a
witness can be impeached with a conviction dated after the witness testifies.
SO ORDERED, this 26th day of August, 2011.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT
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