BUTTS (DEATH PENALTY) v. CHATMAN et al
Filing
62
ORDER DENYING 54 Motion Relief From a Final Judgment, Order, Or Proceeding Pursuant to Federal Rule 60(b) and DENYING 60 Motion to Stay. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 4/23/2018. (tlh)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
ROBERT EARL BUTTS, JR.,
:
:
Petitioner,
:
:
vs.
:
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WARDEN, Georgia Diagnostic and
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Classification Prison,
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Respondent.
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___________________________ _____:
CIVIL ACTION NO. 5:13-CV-194 (MTT)
ORDER
Frequently, the Georgia Supreme Court denies without explanation a habeas
petitioner’s application for a certificate of probable cause to appeal the denial of habeas
relief. In Wilson v. Sellers, 2018 WL1800370 (April 17, 2018), the United States
Supreme Court held that a federal habeas court should “look through” such an
unexplained state court decision to the last state court decision stating a rationale for
denial of relief and presume that the summary denial of relief was based on the same
rationale. Shortly before the Supreme Court handed down its decision in Wilson, the
Georgia Supreme Court offered that it might or might not deny an application for a
certificate of probable cause for the same reasons that the lower court denied relief.
Redmon v. Johnson, 302 Ga. 763, 809 S.E.2d 468 (2018). Based on Redmon,
Petitioner Robert Earl Butts, Jr. has moved to reopen his 28 U.S.C. § 2254 habeas
corpus case. (Doc. 54). Based on Wilson, Butts has moved to stay his May 3, 2018
execution. (Doc. 60). Because both motions lack merit, they are DENIED.
I.
BACKGROUND AND PROCEDURAL HISTORY
On the night of March 28, 1996, Butts and his co-defendant, Marion Wilson,
approached Donovan Corey Parks in a Wal-Mart parking lot and asked for a ride.
Parks agreed. After driving a short distance, Butts brandished a sawed-off shotgun he
had concealed under his jacket. Parks was ordered to stop the car. Wilson drug
Parks from the car and told him to lie face down in the road. Butts then shot Parks in
the back of the head. Butts and Wilson drove Parks’s car to Atlanta with the hope of
exchanging the car for money at a chop shop. When that plan failed, they bought two
cans of gasoline, drove to a remote location in Macon, Georgia, and set Parks’s car on
fire. Butts v. State, 273 Ga. 760, 761-62, 546 S.E.2d 472, 477-78 (2001).
On November 20, 1998, a jury found Butts guilty of malice murder, armed
robbery, hijacking a motor vehicle, possession of a firearm during the commission of a
crime, and possession of a sawed-off shotgun. Id. at 761 n.1, 546 S.E.2d at 477 n.1.
On November 21, 1998, the jury found that the murder was committed during the
commission of a capital felony, and Butts was sentenced to death.1 Id.
Butts moved for a new trial, which was denied, and Butts appealed. (Docs. 8-5
at 81; 10-11; 8-1 at 6).2 Because Butts raised in his appeal ineffective assistance of
trial counsel claims, the trial court appointed new counsel to represent Butts. (Doc. 8-5
at 83). The Georgia Supreme Court then remanded for an evidentiary hearing on
Butts’s ineffective assistance claims. (Docs. 10-13 at 37-49; 10-15). The trial court
1
Wilson was also tried, convicted, and sentenced to death for Parks’s murder. Wilson v. State, 271 Ga.
811, 525 S.E.2d 339 (1999).
2
Because all documents have been electronically filed, this Order cites to the record by using the
document number and electronic screen page number shown at the top of each page by the Court’s
CM/ECF software.
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held an evidentiary hearing on August 22, 2000 and on October 4, 2000 denied Butts’s
motion for new trial. (Docs. 10-16; 10-17 at 14).
Butts again appealed, and on April 30, 2001, the Georgia Supreme Court
affirmed. (Doc. 10-17 at 2); Butts, 273 Ga. at 761, 546 S.E.2d at 477. The United
States Supreme Court denied his petition for certiorari on January 7, 2002. Butts v.
Georgia, 534 U.S. 1086 (2002); Butts v. Georgia, 535 U.S. 922 (2002).
Butts filed a petition for writ of habeas corpus in the Superior Court of Butts
County, Georgia (the “state habeas court”) on August 30, 2002. (Doc. 11-4). After an
evidentiary hearing, the state habeas court denied relief on April 11, 2011. (Docs. 13-1
to 16-5; 16-23). Butts filed an application for certificate of probable cause to appeal
(“CPC application”) with the Georgia Supreme Court. (Docs. 16-24; 16-25). In an
order dated January 22, 2013, that court denied without explanation his CPC
application. (Doc. 16-28).
On May 31, 2013, Butts filed in this Court his 28 U.S.C. § 2254 petition for
habeas corpus relief. (Doc. 1 at 9-30). This Court denied relief on October 16, 2015.
(Doc. 34). The Eleventh Circuit affirmed on March 9, 2017. Butts v. GDCP Warden,
850 F.3d 1201 (11th Cir. 2017). The United States Supreme Court denied certiorari on
January 22, 2018. (Doc. 53).
II.
STAY OF EXECUTION
On April 16, 2018, the Superior Court of Baldwin County entered an order
directing that Butts be executed by lethal injection between May 3, 2018 and May 10,
2018. (Doc. 60-1). The Georgia Department of Corrections has scheduled his
execution for May 3, 2018. (Doc. 60 at 2). Butts asks this Court to stay his execution
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so he can fully brief the impact of the United States Supreme Court’s recent ruling in
Wilson v. Sellers, 2018 WL1800370 (April 17, 2018).3
This Court may grant a stay of execution only if Butts establishes “(1) he has a
substantial likelihood of success on the merits; (2) he will suffer irreparable injury unless
the injunction issues; (3) the stay would not substantially harm the other litigant; and (4)
if issued, the injunction would not be adverse to the public interest.” DeYoung v.
Owens, 646 F.3d 1319, 1324 (11th Cir. 2011) (quoting Powell v. Thomas, 641 F.3d
1255, 1257 (11th Cir. 2011)). As discussed below, Butts cannot establish a substantial
likelihood of success on the merits.
III.
ANALYSIS
Federal Rule of Civil Procedure 60(b)(6) permits reopening a case for “any . . .
reason justifying relief from the operation of the judgment.” Crapp v. City of Miami
Beach, 242 F.3d 1017, 1020 (11th Cir. 2001) (quoting Griffin v. Swim-Tech Corp., 722
F.3d 677, 680 (11th Cir. 1984)). But, “relief under Rule 60(b)(6) is available only in
‘extraordinary circumstances.’” Buck v. Davis, 137 S. Ct. 759, 777 (2017) (quoting
Gonzalez v. Crosby, 545 U.S. 524, 535 (2005)). “Such circumstances . . . rarely occur
in the habeas context.” Gonzalez, 545 U.S. at 535.
Butts argues this Court should reopen his federal habeas case because the
Georgia Supreme Court’s recent decision in Redmon v. Johnson, 302 Ga. 763, 809
S.E.2d 468 (2018), “demonstrates that this Court’s application of Section 2254(d)’s
limitation upon relief to Petitioner’s ineffective-assistance-of-counsel claims was
premised upon a misapprehension.” (Doc. 54 at 1). Eight days after Butts filed his
3
Ironically, the Petitioner in Wilson is Marion Wilson, Butts’s accomplice.
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motion to reopen, the United States Supreme Court decided Wilson. 2018
WL1800370, at *5. As Butts argues in his motion to stay, Wilson is critical, but not in
the way Butts thinks. Wilson demonstrates that this Court—and the Eleventh Circuit
after it—was not laboring under a misapprehension when it denied habeas relief.
Because Butts focuses on his ineffective assistance of trial and appellate counsel
claims, it is appropriate to note how various courts have handled those claims. (Doc. 1
at 9-30). Butts argued on direct appeal that trial counsel were ineffective for not
presenting mitigating testimony and pleas for mercy from family members. (Docs. 1022 at 9-10, 41; 24 at 47). The Georgia Supreme Court rejected this claim on the
merits. Butts, 273 Ga. at 769-70, 546 S.E.2d at 483; (Doc. 16-23 at 5). Butts raised
additional trial counsel ineffective assistance claims during his state habeas
proceedings, and the state habeas court found those claims were procedurally
defaulted because Butts failed to raise the claims on direct appeal.4 Butts argued that
ineffective assistance of direct appeal counsel established cause to overcome the
default. (Doc. 24 at 49). The state habeas court addressed the appellate counsel
ineffective assistance claims on the merits. The court determined that appellate
counsel’s failure to conduct an independent mitigation investigation constituted deficient
performance, but, the court ruled, Butts had not been prejudiced. (Doc. 16-23 at 17-1).
In his CPC application, Butts asserted the same ineffective assistance claims. (Docs.
16-25; 16-27).
4
The state habeas court found the following trial counsel ineffective assistance claims were procedurally
defaulted: Trial counsel failed to secure a neuropsychologist and have neuropsychological and
neurological testing performed; trial counsel failed “to conduct an adequate pretrial investigation into
[Butts’s] family life and background to uncover and present to the jury evidence in mitigation of
punishment”; and trial counsel failed “to present a picture of [Butts’s] background and failed to call any
witness who could present the jury with testimony of [Butts] as a unique human being.” (Doc. 16-23 at 8,
14).
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As the Court explained in detail in its October 16, 2015 Order, the Georgia
Supreme Court’s summary denial of Butts’s CPC application is the final state court
determination of Butts’s ineffective assistance claims and, under then-existing Eleventh
Circuit precedent, the only question for this Court was whether there was any
reasonable basis for the Georgia Supreme Court to deny relief. (Doc. 34 at 11) (citing
Hittson v. GDCP Warden, 759 F.3d 1210, 1231, 1232-33 (11th Cir. 2014) and Lucas v.
Warden, 771 F.3d 785, 792 (11th Cir. 2014)). But the Court recognized that this
precedent had been called into question. (Doc. 34 at 12 n.8) (citing Hittson v.
Chatman, 135 S. Ct. 2126 (2015) (Ginsburg and Kagan, JJ., concurring in the denial of
certiorari)). Given that, the Court analyzed Butts’s claims the same way it had
analyzed its previous post-AEDPA § 2254 cases—the Court applied the Ylst “look
through” presumption. (Doc. 34 at 11-12 n.8) (citing Ylst v. Nunnemaker, 501 U.S.
797, 803 (1991)). Thus, this Court looked through the summary CPC denial,
presuming the Georgia Supreme Court denied relief for the reasons stated by the state
habeas court. (Doc. 34 at 12 n.8) (citing Ylst v. Nunnemaker, 501 U.S. 797, 803
(1991)).
After looking through, this Court denied relief on all claims but “granted Butts a
certificate of appealability on the question of whether ‘[t]rial and appellate counsel were
ineffective for failing to investigate, develop, and present mitigating evidence . . . .”
Butts, 850 F.3d at 1203. The Eleventh Circuit, like this Court, employed the Ylst look
through presumption rather than its own precedent: “Because it does not matter to the
result, and to avoid any further complications if the United States Supreme Court
disagrees with our Wilson decision, we have decided this appeal by the same basis that
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the district court did: by using the more state-trial-court focused approach in applying §
2254(d).” Id. at 1204.
As it turned out, the United States Supreme Court did disagree with the Eleventh
Circuit’s en banc decision in Wilson not to look through an unexplained denial of relief.
The Court held that the approach used by this Court in Wilson—and, significantly, used
by both this Court and the Eleventh Circuit in Butts—was the correct approach.
Wilson, 2018 WL 1800370, at *5. Specifically, the Court held “that the federal court
should ‘look through’ the unexplained decision to the last related state-court decision
that does provide a relevant rationale. It should then presume that the unexplained
decision adopted the same reasoning.” Id. at *3. That is what this Court did.
Wilson also forecloses Butts’s argument that Redmon requires district courts to
conduct a de novo review of any ineffective assistance of counsel claim that the
Georgia Supreme Court summarily denies. (Doc. 54 at 1-17) (citing Redmon, 302 Ga.
at 766, 809 S.E.2d at 471). In Redmon, an apparent effort by the Georgia Supreme
Court to have its say in the look through debate, the court noted that it occasionally
summarily denies relief even if it identifies “inconsequential errors” in the state habeas
courts’ orders. Redmon, 302 Ga. at 765-66, 809 S.E.2d at 470-71. It listed several
“examples of inconsequential errors” that it commonly encounters, including:
The habeas court rejects a claim both on a procedural
ground and, alternatively, on the substantive merits. This
Court determines that one of those rulings appears factually
or legally erroneous, but the other is correct, so an appeal
would result in the habeas court's judgment being affirmed
on the correct ground.
In addressing an ineffective assistance of counsel claim
under Strickland . . . the habeas court rules that counsel did
not perform deficiently as alleged. That ruling appears to be
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erroneous, but this Court determines based on our review of
the record that no prejudice resulted from the deficient
performance, so an appeal would result in affirming the
habeas court's judgment.
Id. at 766, 809 S.E.2d at 471. Based on this, Butts posits an innovative argument: (1)
Redmon reveals the Georgia Supreme Court routinely does not base its denial of relief
for ineffective assistance claims on the same grounds as those stated in the lower
courts’ habeas orders; (2) there is thus no way to know on what grounds the Georgia
Supreme Court based its denial of relief; and (3) this Court must therefore, conduct a de
novo review. (Doc. 54 at 13-21).
In Wilson, the United States Supreme Court acknowledged Redmon, but the
Court did not find, as Butts argues, that Redmon somehow lowers the deference that
AEDPA requires.5 After considering the Georgia Supreme Court’s CPC procedure as
described in Redmon, the Supreme Court held district courts nevertheless must
presume the Georgia Supreme Court based its denial of relief on the same grounds as
those expressed in the state habeas order. Wilson, 2018 WL 1800370, at *7. But, this
presumption6 “can be rebutted by evidence of, for instance, an alternative ground that
was argued or that is clear in the record was the likely basis for” the Georgia Supreme
Court’s denial of relief. Id.
All of this means this Court employed the proper analytical framework when it
denied Butts’ habeas petition. It looked through the Georgia Supreme Court’s
5
In Redmon, the Georgia Supreme Court expressly stated, “we offer no view on the question of federal
habeas law presented in Wilson . . . .” Redmon, 302 Ga. at 763-64, 809 S.E.2d at 469.
6
Contrary to Butts’s arguments, (Doc. 59 at 1), the rebuttable nature of the presumption that a state
appellate court based its unexplained decision on the rationale of the lower courts is not new. In Ylst, the
Court stated, “[W]e do not suggest that the presumption is irrefutable . . . .” 501 U.S. at 804.
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summary CPC denial and thoroughly reviewed the state habeas court’s factual findings
and legal conclusions, finding they were reasonable. (Doc. 34 at 11-2, 7-65).
Redmon requires nothing different.
Butts’s motions to reopen his case and stay of execution must, therefore, be
DENIED.
CERTIFICATE OF APPEALABILITY
The Eleventh Circuit has held “that the certificate of appealability [COA]
requirement applies not only to all final judgments denying § 2254 or § 2255 relief, but
also to all final judgments denying Rule 60(b) relief from those earlier final judgments.”
Gonzalez v. Sec’y for the Dep’t of Corr., 366 F.3d 1253, 1263 (11th Cir. 2004), aff’d sub
nom, Gonzalez v. Crosby, 545 U.S. 524, 536 n.8 (2005) (finding “the COA requirement
appears to be a . . . plausible and effective screening requirement.”).
The Court
can issue a COA only if the petitioner “has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). To merit a COA, the Court must
determine “that reasonable jurists could debate whether (or, for that matter, agree that)
the petition should have been resolved in a different manner or that the issues
presented were ‘adequate to deserve encouragement to proceed further.’” Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003) (citations omitted). If a procedural ruling is
involved, the petitioner must “demonstrate that the procedural ruling barring relief is
itself debatable among jurists of reason; otherwise, the appeal would not ‘deserve
encouragement to proceed further.’” Buck v. Davis, 137 S. Ct. 759, 777 (2017)
(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
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Reasonable jurists could not “conclude that the District Court abused its
discretion in declining to reopen the judgment” in this case. Id. The Court, therefore,
finds the standard required for the grant of a COA has not been met and a COA is
DENIED.
SO ORDERED, this 23rd day of April, 2018.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT
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