BONNER v. PHILBIN
ORDER adopting 17 Report and Recommendations. The Petition for Writ of Habeas Corpus 1 is DENIED. Additionally, because Petitioner has failed to make a substantial showing of the denial of a constitutional right, a certificate of appealability is DENIED. Ordered by US DISTRICT JUDGE C ASHLEY ROYAL on 9/8/17 (lap)
IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF GEORGIA
Warden EDWARD PHILBIN, JR.,
Proceedings under 28 U.S.C. § 2254
ORDER ON REPORT AND RECOMMENDATION
Before the Court is the Report and Recommendation [Doc. 17] from United
States Magistrate Judge Stephen Hyles, recommending that Petitioner Anthony
Bonner’s Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 [Doc. 1] be denied.
Petitioner, proceeding pro se, has filed an Objection to the Recommendation [Doc. 18].
Pursuant to 28 U.S.C. § 636(b)(1), the Court has thoroughly considered Petitionerʹs
Objection, has made a de novo determination of those parts of the Recommendation to
which Petitioner objects, and finds the Objection to be without merit.
In 2005, Petitioner was charged with malice murder, two counts of felony
murder, aggravated assault, and theft by receiving. A Bibb County Superior Court
jury acquitted him of malice murder and convicted him on all other charges. After
pursuing a direct appeal and a habeas petition in state court, Petitioner filed the
habeas petition currently at bar. Petitioner argues his multiplicitous indictment and
his conviction on the two counts of felony murder after being acquitted of malice
murder, violates his double jeopardy rights. The Recommendation recommends the
Court deny his petition because Petitioner’s claims have been procedurally defaulted,
as he did not raise them at trial or on direct appeal, and Petitioner has shown neither
the cause and actual prejudice, nor a fundamental miscarriage of justice, necessary to
overcome the default. In his Objection, Petitioner first restates the double jeopardy
argument that has been thoroughly addressed in the Recommendation. The Court
agrees with the findings and conclusions in the Recommendation, and this objection is
Additionally, Petitioner argues his procedural default should be excused
because the State violated his due process rights by failing to charge and convict him
of violating O.C.GA. § 16‐11‐106, Possession of a Firearm during the Commission of or
Attempt to Commit, Certain Crimes. Petitioner contends no reasonable jury could
have convicted him of aggravated assault and felony murder without this charge.
Petitioner’s argument however, does not establish the necessary cause and actual
prejudice1 sufficient to overcome his procedural default, nor does it show a
fundamental miscarriage of justice.2 Thus, this objection is also overruled.
Accordingly, the Report and Recommendation [Doc. 17] is ADOPTED and
MADE THE ORDER OF THIS COURT, and the Petition for Writ of Habeas Corpus
[Doc. 1] is DENIED. Additionally, because Petitioner has failed to make a substantial
showing of the denial of a constitutional right, a certificate of appealability is
SO ORDERED, this 8th day of September, 2017.
S/ C. Ashley Royal
C. ASHLEY ROYAL, SENIOR JUDGE
UNITED STATES DISTRICT COURT
1 “Cause exists if there was ‘some objective factor external to the defense [that] impeded counselʹs
efforts to comply with the Stateʹs procedural rule.’” Mize v. Hall, 532 F.3d 1184, 1190 (11th Cir.2008)
(quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). In order to establish actual prejudice, the error must
have “worked to [petitioner’s] actual and substantial disadvantage, infecting his entire trial with error of
constitutional dimensions.” Ward v. Hall, 592 F.3d 1144, 1178 (11th Cir. 2010) (quoting United States v.
Frady, 456 U.S. 152, 170 (1982) (emphasis in original).
2 In order “[t]o excuse a default of a guilt‐phase claim under [the fundamental miscarriage of justice]
standard, a petitioner must prove “a constitutional violation [that] has probably resulted in the
conviction of one who is actually innocent.” Hill v. Jones, 81 F.3d 1015, 1023 (11th Cir. 1996) (quoting
Murray v. Carrier, 477 U.S. 478, 496 (1986)).
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