Sallie (DEATH PENALTY) v. Humphrey
ORDER DENYING 125 Motion to Stay and Abey Proceedings. Ordered by Judge Marc Thomas Treadwell on 7/26/2013. (tlh)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
WILLIAM CARY SALLIE,
CARL HUMPHREY, Warden,
CIVIL ACTION NO.: 5:11-CV-75 (MTT)
Petitioner William C. Sallie has moved the Court to stay this action so he can return
to state court to exhaust claims of juror bias, claims he says are based on newly
discovered evidence. (Doc. 125). Specifically, Sallie says his current counsel have
learned that juror Gina D. Dawson falsely answered questions during voir dire. For the
reasons discussed below, the motion is DENIED.
FACTUAL AND PROCEDURAL BACKGROUND
Sallie was first convicted and sentenced to death in 1991. The Georgia Supreme
Court set aside that conviction in 1998. After a change of venue to Houston County,
Sallie was retried in 2001. A jury again convicted him and sentenced him to death.
At the second trial, Dawson, in responding to a juror questionnaire, wrote that she
was divorced and, in response to “For how many years?” wrote “2 yrs.” (Doc. 122 at 68).
Dawson’s completed questionnaire also indicated that neither she nor any member of her
family had ever been accused of a crime, been the victim of a crime, or been a victim of
spousal or family violence, and that she had never been a party to litigation. (Doc. 122 at
During voir dire examination, counsel briefly explored Dawson’s marital history.
. . . We got a copy of your questionnaire.
They sent those to us [sic] before to try to help speed things up. It
says here that you’re divorced and you’ve been – was it you were
divorced two years ago or you were married two years ago?
My divorce has just finalized.
Okay. So you just – you were married for two years?
And would you consider that a nasty divorce, an amicable divorce,
or how would you …
Amicable? Uh-huh. All right. Any big court battle?
Is that the only time you’ve been married?
No. I’ve been married before.
Okay. And was that – were you divorced then? I assume you
Got married again?
We meet a lot of people in court. Was that divorce amicable or
It was …
It was amicable.
No big court fights?
Did you get custody of all the children?
Was there any big custody fight or issue?
(Doc. 122 at 68-69) (examination by the prosecution).
Have you ever known anybody who has been through a very
contentious divorce? I gather yours were not so?
No. I can’t say that I know of anyone who has.
(Doc. 122 at 69) (examination by the defense).
During voir dire, Dawson claimed strong religious convictions, and Sallie’s counsel
requested that she be excused for cause because of “her strong religious faith” and “the
fact that she finds guidance for major life decisions from the Bible.” (Doc. 70-10 at 94).
In response to further questioning by the trial court, Dawson said that her religious beliefs
would not prevent her from considering all sentencing options, that she could follow the
laws of the State of Georgia, and that she could carry out the instructions of the court.
(Doc. 70-10 at 97-99). The court denied Sallie’s motion to remove Dawson for cause,
and she ultimately served on the jury.
The trial court’s and counsel’s attention returned to Dawson immediately after the
trial. In a March 13, 2001, post-trial hearing, the trial judge reported that “one of our
jurors [Thomas Gootee] did not make it home” after Sallie’s trial ended on March 5, 2001.
(Doc. 71-21 at 7). The judge explained that a day or two after the end of the trial the
court received a call from Gootee’s wife who complained that her husband had not
returned home, and the judge had to get “the sheriff’s department … to go by [Dawson’s
house] to see if they could rouse him out.” (Doc. 71-21 at 8). The judge stated that
when deputies arrived at her residence, they learned that Gootee had just left. (Doc.
71-21 at 8). In other words, Dawson and Gootee were having an affair and rather than
return home, Gootee went home with Dawson.
Shortly after the trial, Sallie’s attorneys interviewed all twelve jurors. They, or their
“staff,” interviewed Dawson for over an hour on April 1, 2001. (Doc. 122 at 8). The
topics discussed during that interview are not in the record.
On direct appeal, Sallie contended that the trial court erred when it failed to remove
Dawson for cause because of her religious beliefs. (Doc. 72-1 at 72). The Georgia
Supreme Court disagreed:
Prospective juror Dawson was qualified to serve as a juror. She indicated
no bias and she stated that she could consider and vote for all three
sentencing options. Although she has strong religious beliefs, she
expressly stated that her religious beliefs would not prevent her from
following Georgia law and the trial court’s instructions.
Sallie v. State, 276 Ga. 506, 510, 578 S.E.2d 444, 450 (2003).
Sallie filed his state habeas petition on October 14, 2004. (Doc. 72-18). In Claim
Three he alleged:
Misconduct on the part of the jurors included, but was not limited to,
improper consideration of matters extraneous to the trial, improper racial
attitudes which infected the deliberations of the jury, false or misleading
responses of jurors on voir dire, improper biases of jurors which infected
their deliberations, improper exposure to the prejudicial opinions of third
parties, improper communications with third parties, improper
communication with jury bailiffs, improper ex parte communications with the
trial judge, and improperly prejudging the guilt/innocence and penalty
phases of Petitioner’s trial.
(Doc. 72-18 at 17) (emphasis added).
During the state habeas proceedings, Sallie’s attorneys searched Houston County
court records for information about jurors. While the record does not reveal all
documents reviewed during their record searches, habeas counsel marked as exhibits at
the state habeas evidentiary hearing various Houston Superior Court pleadings from the
Gootees’ divorce proceedings. (Doc. 73-25 at 32-53).
After a year long discovery period, Sallie filed, on June 30, 2006, the first
amendment to his state habeas petition. (Doc. 73-11). In Claim Five of the amended
petition Sallie alleged:
Misconduct on the part of the jurors included, but was not limited to,
improper consideration of matters extraneous to the trial, improper biases,
false or misleading answers in voir dire, improper exposure to opinions
of third parties, improper communications with third parties and bailiffs,
improper relations between jurors, improper religious influences and
(Doc. 73-11 at 25) (emphasis added).
State habeas counsel subpoenaed Dawson and Gootee to testify at the state
habeas evidentiary hearing. (Doc. 75-15 at 6). However, Respondent moved in limine
to exclude Dawson’s and Gootee’s testimony on the grounds that Sallie was attempting to
use juror testimony to impeach their verdict in violation of O.C.G.A. § 9-10-9 and O.C.G.A.
§ 17-9-41. (Doc. 73-19 at 4-8). At argument on the motion, state habeas counsel
asserted that Gootee and Dawson engaged in inappropriate conduct or were involved in
an inappropriate relationship. (Doc. 73-20 at 23). Counsel informed the court they had
interviewed bailiffs from Sallie’s trial who confirmed the inappropriate relationship. (Doc.
73-20 at 26). They also told the court that Dawson had been a concern even prior to trial,
explaining that trial counsel “was concerned about the partiality of Ms. Dawson before
any of this information arose” because of her “strict fundamental religious beliefs.” (Doc.
73-20 at 26).
The state habeas court granted Respondent’s motion, and Dawson and Gootee
did not testify. (Doc. 73-20 at 26-27). However, the court allowed Sallie’s counsel to
call bailiffs from the trial to testify about Gootee and Dawson’s relationship. (Doc. 73-21
at 75-92). Captain Allen Keith Everidge testified that Gootee and Dawson were “flirting”
during the trial and Gootee’s wife called the trial judge following the trial to question why
her husband had not returned home. (Doc. 73-21 at 77-79). He also testified that
Dawson contacted him when she received the March 8, 2007, subpoena requiring her to
attend the state habeas evidentiary hearing. (Doc. 73-21 at 81). According to
Everidge, she did not want to testify and was concerned that “they [were] going over [her]
personal life.” (Doc. 73-21 at 81-82). Everidge said that Dawson acknowledged that
she and Gootee were involved in a post-trial relationship. (Doc. 73-21 at 82).
Lieutenant Dorothy Harden testified that after the trial, the trial judge ordered her to go to
Dawson’s house to question Dawson about Gootee’s whereabouts. (Doc. 73-21 at 87).
Harden said she told Dawson that Gootee needed to go home. (Doc. 73-21 at 88).
According to Harden, she never saw Gootee, but Dawson responded “‘Okay.’” (Doc.
73-21 at 88).
In their post-hearing brief, state habeas counsel argued that Sallie was
erroneously precluded from developing his claim of juror misconduct, “a claim based
upon an improper romantic relationship [that] developed between two jurors during the
course of … Sallie’s second capital trial.” (Doc. 83-23 at 7). Respondent argued that
Sallie’s entire juror misconduct claim (Claim Five in his amended state habeas petition)
was procedurally defaulted because it was not raised during trial or on appeal. (Doc.
84-1 at 14, 17). The state habeas court, in an order drafted by Respondent’s attorneys,
found that Claim Five, in its entirety, was procedurally defaulted because it was not raised
on direct appeal and Sallie had not established cause and prejudice or a fundamental
miscarriage of justice to excuse the default. (Doc. 84-6 at 13, 17). However, the order,
understandably, did not specifically address the claim that jurors answered improperly
during voir dire.
In his initial and “corrected” habeas petitions filed in this Court, Sallie again alleged
juror bias and claimed that unnamed jurors provided false or misleading responses during
voir dire. (Docs. 1 at 16-17; 9 at 17-18). In his second amended petition, filed on May 9,
2013, Sallie added factual detail to these general allegations. He maintained that his
current investigator interviewed Dawson on October 1, 2012, and Dawson’s strong views
and “bilious tone … betrayed a palpable bias that had not surfaced in the years since the
2001 trial.” (Doc. 122 at 24-25). This conversation “precipitated an inquiry into Ms.
Dawson’s background.” (Doc. 122 at 25). According to Sallie, this inquiry revealed
“extensive court records and other public documents” showing that Dawson responded
untruthfully to questions about “(i) spousal or family violence, (ii) criminal history of family
members, (iii) victimhood of herself and family members, (iv) contentious divorces, (v)
child custody, visitation and support matters, and (vi) being sued and seeking personal
bankruptcy protection.” (Doc. 125 at 3-4). Casting a very wide net, Sallie’s second
amended petition discloses the following pretrial1 facts about Dawson.
At the time of Sallie’s 2001 trial, Dawson2 had been married four times. She
married Glenn Terrell Holland on May 25, 1990, when she was seventeen years old.
(Doc. 122 at 45). Their son, Tyler, was born on February 14, 1991. (Doc. 122 at 45).
Holland filed for divorce on October 17, 1991 in Florida state court.3 (Doc. 122 at 45).
In the divorce petition he acknowledged that Dawson, who resided in Houston County,
had custody of Tyler but alleged that he was “the more fit and proper person to have
custody.” (Doc. 122 at 45). Dawson was served with a copy of the Florida divorce
petition on October 22, 1991. She then filed her own divorce petition in Houston County
on October 25, 1991. In her petition, Dawson alleged that she had not participated as a
party “in any other capacity in any litigation concerning the custody” of Tyler and that she
had “no information of any custody proceeding concerning [Tyler] pending in a court of
this or any other state.” (Doc. 122 at 46). On November 7, 1991, Dawson sought to
have Holland’s Florida divorce petition dismissed for lack of jurisdiction. (Doc. 122 at
The Florida court entered a temporary order on December 23, 1991, allowing
Holland to have visitation rights with Tyler from December 26, 1991, to January 9, 1992.
(Doc. 122 at 49). On December 26, 1991, Dawson attended a custody hearing in
Sallie’s attorneys have spent considerable time uncovering information about Dawson’s life since the
2001 trial. The Court sees no reason to recount that information.
Sallie’s second amended petition contains a great deal of information about Dawson’s mother’s
questionable parentage; her mother’s numerous marriages; and the lives of Dawson’s various stepfathers
before, during, and after their marriages to Dawson’s mother. The Court sees no reason to recount that
information. (Doc. 122 at 29-44).
It is this divorce on which Sallie relies to support his assertion that Dawson misrepresented her divorce
was amicable when she had actually been involved in “an acrimonious struggle over the course of the
preceding decade in the courts of two states for the custody, and then support, of her son.” (Doc. 125 at
10). However, the voir dire transcript suggests that Dawson was only questioned regarding her two most
recent divorces, both of which could be characterized as amicable. (Doc. 122 at 68-69).
Houston County, and she was granted temporary custody of Tyler. Holland did not
attend the hearing because he had not been served with the October 25, 1991, petition
for divorce and had no notice of the hearing. (Doc. 122 at 47).
On January 7, 1992, Holland moved for contempt in the Florida action complaining
that he was not allowed visitation with Tyler and that Dawson obtained the Houston
County custody order without advising the court that the Florida divorce action was
pending. (Doc. 122 at 49). In response, Holland amended her Houston County divorce
petition to show that “unbeknown to her,” Holland filed a divorce petition in Florida one
day before she filed her divorce petition in Houston County and that Houston County was
the more appropriate forum. (Doc. 122 at 50). However, as stated above, Dawson had
actually been served with a copy of the divorce petition filed in the Florida action three
days before she filed her divorce petition. (Doc. 122 at 46).
In a January 16, 1992, conference in Florida, attorneys for both Holland and
Dawson entered into an agreement resolving all issues of the marriage. (Doc. 122 at
50-51). However, on March 3, 1992, Dawson, again in Houston County Superior Court,
petitioned under the Uniform Reciprocal Enforcement of Support Act seeking child
support payments for Tyler. (Doc. 122 at 51). On March 26, 1992, Dawson’s attorney
complained that Holland had been uncooperative and refused to sign the January 16,
1992, settlement agreement. (Doc. 122 at 51). On May 14, 1992, a Final Judgment
Dissolving the Marriage was entered in the Florida action. (Doc. 122 at 51). Tyler’s
physical residence was to remain with Dawson and Holland was given “secondary
physical residence (visitation) rights.” (Doc. 131-3 at 4).
On April 21, 1993, Holland filed, in Florida, a motion to hold Dawson in contempt
because she “frustrated [his] attempt to obtain … visitation” with Tyler. (Doc. 122 at 52).
On June 30, 1993, the Florida court ruled in Holland’s favor, and on July 13, 1993,
Dawson filed a supplemental complaint for modification in which she sought to change
Holland’s visitation rights and to receive an increase in child support payments. (Doc.
122 at 52-53).
On December 2, 1993, Dawson moved to hold Holland in contempt, alleging that
Holland failed to make child support payments from August to December 1993. (Doc.
122 at 53). On January 11, 1994, the court found Holland in contempt and sentenced
him to be jailed for 180 days. (Doc. 122 at 53). While it does not appear that he was
ever actually incarcerated, Holland was continuously delinquent in his child support
obligations up to the time of Sallie’s trial. (Doc. 122 at 54-56).
Dawson married her second husband, Grant Weller,4 in Houston County on April
10, 1993, and on that same day, he was arrested by the Houston County Sheriff’s
Department for the offenses of Terroristic Threats or Acts, Obstruction of an Officer, and
Pedestrian Under the Influence of Alcohol.5 (Doc. 122 at 58). Dawson and Weller
separated three months later on July 9, 1993, and she filed a settlement agreement on
October 1, 1993. (Doc. 122 at 57). Their son, Kyle, was born on October 16, 1993, and
their divorce was finalized on December 22, 1993. (Doc. 122 at 57). Dawson was
given “permanent custody” of Kyle, and Weller was given visitation. (Doc. 134-1 at 4).
Also on December 22, 1993, Dawson obtained a child support order against Weller for
Sallie’s attorneys provide details regarding Weller’s first marriage that ended on April 5, 1993. (Doc. 122
at 57). They also have spent time uncovering details about his life post-divorce from Dawson. Again, the
Court sees no reason to recount that information.
In September 1996, three years after divorcing Dawson, Weller negotiated a guilty plea and received
probation. (Doc. 134-6 at 1).
support of Kyle, but Weller was $12,900.00 in arrears at the time of Sallie’s trial. (Doc.
122 at 58).
Dawson married James E. Buckbee in Aiken, South Carolina on May 7, 1994, and
separated from him in May 1995. (Doc. 122 at 60). They were divorced in Houston
County on September 1, 1995. (Doc. 122 at 60). They had no children, and the divorce
appears to be without incident.6
Dawson married Donald Eugene Payne, Jr. on October 19, 1998, and gave birth to
their son, Donald, on July 30, 1999. (Doc. 122 at 61). Payne and Dawson separated in
April 2000, and Dawson filed a divorce petition in Houston County Superior Court on
August 22, 2000. (Doc. 122 at 61). Dawson and Payne entered in a settlement
agreement in which they agreed to share legal custody of Donald, but Dawson was
named the primary custodial parent. (Doc. 135-8 at 1). The final decree dissolving their
marriage was entered on February 13, 2001.7 (Doc. 122 at 61).
Dawson was also a party in three court proceedings prior to 2001. She was
named as a defendant in a debt collection action filed in Laurens County, Georgia in June
1997. Venue in that action was transferred to the State Court of Houston County and the
creditor voluntarily dismissed the action in February 2000. (Docs. 122 at 66; 137-3 at 1).
Dawson filed a Chapter 13 bankruptcy petition in the Middle District of Georgia in
September 1997 and converted the case from a Chapter 13 to a Chapter 7 in October
1998. (Doc. 122 at 67). Dawson was named as a defendant in a June 1998 personal
injury action concerning an automobile collision that occurred in June 1996. The action
As with Dawson’s other former husbands, Sallie’s attorneys provide details regarding Buckbee’s life after
he divorced Dawson. The Court sees no need to recount this information.
The Court does not include information regarding Payne’s life after his 2001 divorce from Dawson
because it is absolutely irrelevant to Dawson’s 2001 voir dire responses.
settled and was dismissed with prejudice in September 1999. (Doc. 122 at 67).
Sallie maintains that his potentially meritorious claims of juror misconduct and bias
based on Dawson’s false and misleading responses have not been exhausted and he
has good cause for failing to exhaust. Rhines v. Weber, 544 U.S. 269, 278 (2005). He
also claims that “[t]he newly discovered information concerning Ms. Dawson, upon full
investigation, is expected to overcome the procedural bar precluding successive state
habeas petitions because the emerging new grounds ‘could not reasonably have been
raised in the original or amended petition.’” (Doc. 125 at 14) (quoting O.C.G.A.
The Respondent claims that “the legal theory and substance of [Sallie’s] juror
misconduct claims, which include juror bias and false or misleading answers in voir dire,
are the same claims that were presented in the state habeas court[,]” and therefore, these
claims are exhausted. (Doc. 143 at 2). Even if not exhausted, the Respondent
continues, the claims would be barred as successive under Georgia law. O.C.G.A.
A. Did Sallie Exhaust His Claim that Dawson Responded Untruthfully
During Voir Dire?
In his state habeas petitions, Sallie alleged that unidentified jurors were biased and
provided false or misleading responses in voir dire. (Docs. 72-18 at 17; 73-11 at 25).
But the only evidence of or argument about juror misconduct during the state habeas
proceedings concerned the relationship between Dawson and Gootee.
In Vasquez v. Hillery, 474 U.S. 254 (1986), the Court noted that “[w]e have never
held that presentation of additional facts to the district court … evades the exhaustion
requirement when the prisoner has presented the substance of his claim to the state
courts.” Id. at 257-58. It is only when the supplemental evidence presented by the
habeas petitioner “fundamentally alter[s] the legal claim already considered by the state
courts,” that the claim is not exhausted. Id. at 260; see also Picard v. Connor, 404 U.S.
270, 275 (1971) (explaining that the federal claim must have been “fairly presented to the
state courts” and the state courts must have had an opportunity to apply legal principles to
the facts bearing upon the claim). However, “the prohibition against raising
nonexhausted claims in federal court extends not only to broad legal theories of relief, but
also to the specific assertions of fact that might support relief.” Kelley v. Sec’y for the
Dep’t of Corr., 377 F.3d 1317, 1344 (11th Cir. 2004).
The question is whether Sallie exhausted his claims that Dawson was biased and
provided dishonest responses on voir dire when he did nothing more than generally
allege in his state habeas petitions that unidentified jurors were biased and provided false
or misleading responses in voir dire. Neither party cites authority addressing this
specific question in a factually similar case.8 Some guidance is perhaps provided by the
Eleventh Circuit’s treatment of general allegations of ineffective assistance of counsel.
The Eleventh Circuit has held that “habeas petitioners cannot preserve otherwise
unexhausted, specific claims of ineffective assistance merely by arguing that their
lawyers were ineffective in a general and unspecified way.” Id. “‘[A] general allegation
of ineffective assistance ... [made in state court] wholly unrelated to the ground on which
the claim ultimately depends [in federal court] will [not] immunize a petitioner from a
Perhaps this is in part because the Parties find themselves on unfamiliar terrain. Typically, the petitioner
argues that he has exhausted his claims and, thus, can pursue those claims in his federal habeas action.
The respondent, on the other hand, argues that the claims were not exhausted in state court and, thus, the
federal court cannot address them.
finding of procedural default.’” Pope v. Sec’y for the Dep’t of Corr., 680 F.3d 1271,
1286-87 (11th Cir. 2012) (alteration in original) (quoting Ogle v. Johnson, 488 F.3d 1364,
1369 (11th Cir. 2007)). In other words, raising a general claim of ineffective assistance
of counsel does not necessarily exhaust every factually specific claim of ineffective
assistance of counsel that a petitioner could allege. Rather, to exhaust a particular
claim, the petitioner must, to some degree, present that factually specific allegation to a
state court. But state remedies are not considered exhausted “where entirely new
factual claims are made in support of the writ before the federal court.” Hart v. Estelle,
634 F.2d 987, 989 (5th Cir. Unit A. 1981) (citing Knoxson v. Estelle, 574 F.2d 1339, 1340
(5th Cir. 1978)).9
Sallie’s general assertion of juror bias and untruthful responses, for which he
presented no evidence and made no argument, was not such that the “reasonable reader
would understand [the] claim’s particular legal basis and specific factual foundation” to be
the same that he now presents to this Court. Kelley, 377 F.3d at 1344-45. The Court
recognizes that comparing ineffective assistance of counsel claims and false responses
to voir dire questioning claims may not be particularly apt. The ways in which counsel
can be ineffective are often limited only by the creativeness of subsequent counsel. On
the other hand, a claim that one or more jurors provided false information during voir dire
is necessarily limited to specific responses given by twelve jurors. Still, in the Court’s
judgment, Sallie did not present to the state habeas court the substance of his claim that
Dawson answered voir dire questions falsely in a manner that would allow the state court
to apply legal principles to the facts he now raises in support of that claim. Thus, Sallie’s
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to close of
business on September 30, 1981.
claims regarding Dawson’s juror bias and untruthfulness during jury selection are not
B. Are Sallie’s Unexhausted Claims Procedurally Defaulted?
“[I]f the petitioner failed to exhaust state remedies and the court to which the
petitioner would be required to present his claims in order to meet the exhaustion
requirement would now find the claims procedurally barred … there is a procedural
default for purposes of federal habeas….” Coleman v. Thompson, 501 U.S. 722, 735 n.1
(1991). Under Georgia law, Sallie’s current claims regarding Dawson would be barred
as successive if they could “reasonably have been raised in the original or amended
[state habeas] petition.” O.C.G.A. § 9-14-51.
Sallie, citing (Michael) Williams v. Taylor, 529 U.S. 420 (2000), maintains the
factual bases for his unexhausted claims were not reasonably available to previous
counsel because there was nothing to put them on notice of Dawson’s dishonest
responses, and to perform diligently, counsel was not required to “check public records
containing personal information pertaining to each and every juror.” Id. at 443. In
(Michael) Williams, a juror failed to disclose, in response to direct questioning during voir
dire, that she had been married to the sheriff and that one of the prosecutors handled her
divorce from the sheriff. After the resolution of Williams’s state habeas proceedings, an
investigator stumbled upon the connections among the juror, the sheriff, and the
prosecutor. The Fourth Circuit held that state habeas counsel had not been diligent
because they, like federal habeas counsel, could have discovered the juror’s misconduct.
The Supreme Court disagreed. The Court held that diligence “depends upon whether
the prisoner made a reasonable attempt, in light of the information available at the
time, to investigate and pursue claims in state court.” Id. at 435 (emphasis added).
Based on the information available to Williams’s counsel, there was no reason to question
the veracity of the juror, and thus, “there was no basis for an investigation into [the juror’s]
marriage history.” Id. at 443. Williams stands for the proposition that there is not a
general duty to investigate the background of every juror. However, when a reasonable
attorney would be placed on notice regarding the veracity of a particular juror, there is a
duty to develop the matter in state court.
Unlike the situation in (Michael) Williams, Sallie’s attorneys had reason to focus,
and did focus, on Dawson. (Doc. 73-20 at 26). During voir dire, at least
twice-divorced10 Dawson maintained she lived by Biblical principles when making all
important life decisions. (Doc. 70-10 at 90). A little over two weeks later, counsel
learned that the supposedly deeply-religious Dawson took a married juror home with her
following Sallie’s trial. (Doc. 71-21 at 7-8). Counsel knew that the trial judge had to
dispatch a deputy to Dawson’s house to tell Gootee to go home. (Doc. 71-21 at 7-8).
Two weeks later, counsel’s staff interviewed Dawson for more than an hour. In the direct
appeal, counsel continued to focus on Dawson, although that focus was on Dawson’s
professed strong religious beliefs. (Doc. 72-1 at 72).
State habeas counsel also focused intently on Dawson. (Doc. 73-20 at 26).
Sallie’s state habeas petition was pending for almost five years, and state habeas
counsel was allowed to conduct formal discovery for more than a year. (Docs. 72-26 at
3; 73-13). They searched records in Houston Superior Court and gathered records of
Gootee’s divorce. (Doc. 73-25 at 32-53). Records of Dawson’s divorces, and other
Dawson did not disclose that she had been married four times, only that she had been married at least
twice. But Sallie does not contend, and could not contend, that Dawson misrepresented the number of
times she was married. She was never asked. (Doc. 125 at 5).
litigation, were filed in that court. (Docs. 130-5 to 130-7; 131-2; 134-1; 135-8 to 135-9;
137-4; 137-6 to 137-7; 137-9 to 137-13). When counsel subpoenaed Dawson, she
resisted, expressing concern about “the possibility of having her personal life examined.”
(Doc. 83-23 at 8). State habeas counsel admitted that they had been “concerned about
the partiality of Ms. Dawson” since trial. (Doc. 73-20 at 26). Given these facts, diligent
state habeas counsel would have investigated Dawson and easily discovered the
information current counsel have found.11 Id. at 435.
(Michael) Williams lays down a reasonable principle. That principle is not
applicable here. Because the current juror bias claims could “reasonably have been
raised in the original or amended” state habeas petitions, they are barred as successive
under Georgia law. O.C.G.A. § 9-14-51. Accordingly, this Court applies “‘the familiar
principle that federal courts may treat unexhausted claims as procedurally defaulted,
even absent a state court determination to that effect, if it is clear from state law that any
future attempts at exhaustion would be futile.’” Turner v. Crosby, 339 F.3d 1247, 1281
(11th Cir. 2003) (quoting Bailey v. Nagle, 172 F.3d 1299, 1305 (11th Cir. 1999)).12
Rhines authorizes a stay only when three factors are established: (1) there was
good cause for the petitioner’s failure to exhaust his claims first in state court; (2) the
While the facts known and available to trial and appellate counsel are relevant to a determination of
whether state habeas counsel was diligent, the Court expresses no opinion on the performance of trial or
Procedural default can be excused upon a showing of cause for the default and prejudice or by
establishing a fundamental miscarriage of justice. Turner, 339 F.3d at 1281. “Cause [for a procedural
default] exists if there was ‘some objective factor external to the defense [that] impeded counsel’s efforts to
comply with the State’s procedural rule.’” Mize v. Hall, 532 F.3d 1184, 1190 (11th Cir. 2008) (quoting
Murray v. Carrier, 477 U.S. 478, 488 (1986)). The Court’s conclusion that reasonably diligent state habeas
counsel would have discovered Dawson’s conduct precludes a finding of cause. Because cause does not
exist, the Court need not address prejudice. Also, Sallie has not shown that failure to consider the claim
would result in a fundamental miscarriage of justice.
claims are potentially meritorious; and (3) there is no indication of intentionally dilatory
litigation tactics. Rhines, 544 U.S. at 277-78. For the reasons discussed above, Sallie
has not shown good cause for his failure to exhaust the current claims regarding
Dawson’s alleged bias and alleged dishonest responses during voir dire. Having found
that good cause does not exist, the Court does not address the remaining factors. A stay
is not warranted in this case.13
Accordingly, the Petitioner’s Motion to Stay and Abey Proceedings in Order to
Exhaust Claims in State Court is DENIED.
SO ORDERED, this 26th day of July 2013.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT
Notwithstanding this conclusion, Sallie, of course, may raise any claims he wants in the appropriate state
court. But this Court will not stay this action if he does. If Sallie files a state action, the parties are to keep
the Court informed of any developments in the state court proceedings.
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