Presnell v. Hall
Filing
28
OPINION AND ORDER - The Court concludes that Petitioner's Claim XXVI was properly exhausted and is allowed to proceed on the merits. Petitioner's Claims IV, VI, VII, XIX, XXIII, XXVII, XXVIII, XXIX, XXXI, XXXIII, XXXIV, XXXVI are procedural ly defaulted, without prejudice to Petitioner demonstrating cause and prejudice to overcome the default. Petitioner's Claims V, XXXII, and XXXVII are also procedurally defaulted; however, since Petitioner has already established cause to excuse the default, Claims V, XXXII, and XXXVII are deemed procedurally defaulted, without prejudice to Petitioner demonstrating prejudice to excuse the default. The portion of Petitioner's Claim II based on mental illness and the entirety of Claims XV III and XXX are procedurally defaulted and hereby DISMISSED. Petitioner's Claim XII is not procedurally defaulted and is allowed to proceed on the merits. In accordance with the Consent Scheduling Order [Doc. No. 12 ] entered in this case, Petitioner shall have sixty (60) days from the date of this Order to file any request for discovery. Signed by Judge Clarence Cooper on 3/25/2013. (tcc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
VIRGIL DELANO PRESNELL,
Petitioner,
vs.
HILTON HALL, Warden, Georgia
Diagnostic and Classification Prison,
Respondent.
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CIVIL ACTION NO.
1:07-CV-1267-CC
OPINION AND ORDER
This matter is before the Court on the parties’ briefs concerning whether any
of Petitioner Virgil Delano Presnell’s claims for habeas relief are unexhausted
and/or procedurally defaulted. Specifically, Respondent asserts that Petitioner’s
Claim XXVI should be deemed procedurally defaulted because it is unexhausted.
Respondent also contends that a portion of Petitioner’s Claim II and the entirety of
Claims IV, V, VI, VII, XII, XVIII, XIX, XXIII, XXVII, XXVIII, XXIX, XXX, XXXI, XXXII,
XXXIII, XXXIV, XXXVI, and XXXVII are procedurally defaulted. The Court has
reviewed the record and the arguments of the parties and makes the following
rulings.1
I.
BACKGROUND
Petitioner Virgil Delano Presnell (hereinafter “Petitioner”) was convicted in
1976 of the kidnaping and murder with malice aforethought of Lori Ann Smith and
the kidnaping of Andrea Furlong with bodily injury and forcible rape of Andrea
Furlong. The jury sentenced Petitioner to death based on the following aggravating
circumstances: (1) that the murder of Lori Ann Smith was committed during the
commission of the kidnaping with bodily injury of Andrea Furlong; (2) that the
By entry of this Order, Respondent’s Motion Requesting Ruling on
Petitioner’s Procedurally Defaulted and Unexhausted Claims [Doc. No. 27] is GRANTED.
1
kidnaping with bodily injury of Andrea Furlong was committed during the rape of
Andrea Furlong; and (3) that the rape of Andrea Furlong was committed during the
murder of Lori Ann Smith. The jury imposed the death penalty for the offenses of
rape of Andrea Furlong, kidnaping with bodily injury of Andrea Furlong, and
murder with malice aforethought of Lori Ann Smith.
Petitioner appealed his convictions and sentences to the Supreme Court of
Georgia. The Supreme Court of Georgia vacated Petitioner’s conviction for forcible
rape after determining that the trial court had charged both statutory and forcible
rape and the jury’s verdict did not specify between the two. Presnell v. State, 241
Ga. 49, 52, 243 S.E.2d 496 (1978). The Supreme Court of Georgia ruled that, in light
of the ambiguity, the trial court had to sentence Petitioner for the offense of statutory
rape. Id. The Supreme Court of Georgia also vacated Petitioner’s death sentences
for the offenses of forcible rape and kidnaping with bodily injury, as each sentence
depended upon the finding of forcible rape, which was vacated. Id. The Supreme
Court of Georgia affirmed Petitioner’s conviction and death sentence for the murder
with malice aforethought of Lori Ann Smith. Id. at 63. The Supreme Court of
Georgia likewise affirmed Petitioner’s convictions for kidnaping and kidnaping with
bodily injury. Id.
After Petitioner filed a timely petition for a writ of certiorari, the United States
Supreme Court granted certiorari review on Petitioner’s challenge to his conviction
for kidnaping with bodily injury and the imposition of the death sentence. Presnell
v. Georgia, 439 U.S. 14, 99 S. Ct. 235, 58 L. Ed. 2d 207 (1978). The United States
Supreme Court reversed the death sentence, as the Court found that the Supreme
Court of Georgia had unambiguously found that the rape was the only evidence of
bodily injury to Andrea Furlong. Id. at 16-17. The Court denied Petitioner’s
challenge to his convictions for murder with malice aforethought, kidnaping, and
statutory rape. Id. at 17.
Upon remand, the Supreme Court of Georgia affirmed Petitioner’s convictions
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for murder, kidnaping, kidnaping with bodily injury, and statutory rape. Presnell
v. State, 243 Ga. 131, 132-33, 252 S.E.2d 625 (1979). The Court further clarified its
earlier opinion that Petitioner’s death sentence for murder with malice aforethought
was supported by the statutory aggravating circumstance of kidnaping with bodily
injury – with the aggravated sodomy of Andrea Furlong being the bodily injury and reinstated Petitioner’s death sentence for the offense of murder with malice
aforethought. Id. at 132. The Supreme Court of Georgia then remanded the case
to the trial court with instructions to re-sentence Petitioner for the charges of
kidnaping with bodily injury and statutory rape. Id. at 133.
Petitioner thereafter filed a timely petition for writ of certiorari in the Supreme
Court of the United States. The United States Supreme Court denied certiorari
review on October 1, 1979. Presnell v. Georgia, 444 U.S. 885, 100 S. Ct. 176, 62 L. Ed.
2d 115 (1979). The United States Supreme Court denied rehearing on November 13,
1979. Presnell v. Georgia, 444 U.S. 957, 100 S. Ct. 439, 62 L. Ed. 2d 330 (1979).
On January 8, 1980, Petitioner filed a petition for a writ of habeas corpus in the
Superior Court of Butts County, Georgia. Following an evidentiary hearing, the
superior court denied the petition. Petitioner later filed an amended petition, which
the superior court also denied.
Petitioner filed an application for certificate of probable cause to appeal to the
Supreme Court of Georgia, which was denied on March 19, 1980. Petitioner then
timely filed a petition for a writ of certiorari in the Supreme Court of the United
States. The United States Supreme Court denied Petitioner’s petition for writ of
certiorari on October 6, 1980. Presnell v. Zant, 449 U.S. 891, 101 S. Ct. 254, 66 L. Ed.
2d 120 (1980).
Petitioner filed his first federal habeas petition on June 15, 1981. The district
court dismissed the petition without prejudice for failure to exhaust state remedies.
Petitioner then filed a second state habeas corpus petition in the Superior Court of
Butts County, Georgia, which was dismissed as successive on September 6, 1984.
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Thereafter, on November 16, 1984, the Supreme Court of Georgia denied Petitioner’s
application for a certificate of probable cause to appeal.
On May 15, 1985, Petitioner filed a second federal habeas petition. The
Honorable Robert L. Vining, Jr. granted the petition as to Petitioner’s death sentence
based on an improper burden-shifting instruction. The United States Court of
Appeals for the Eleventh Circuit reversed the decision of the district court on
January 11, 1988, and remanded with instructions. Presnell v. Kemp, 835 F.2d 1567
(11th Cir. 1988). The Eleventh Circuit denied rehearing en banc on July 25, 1988.
Presnell v. Kemp, 854 F.2d 1326 (11th Cir. 1988).
On July 11, 1990, Judge Vining again reversed Petitioner’s death sentence.
This reversal was due to an improper closing argument by the prosecutor in the
sentencing phase of trial. The district court denied relief on all other grounds. The
State appealed to the Eleventh Circuit, and Petitioner cross-appealed. On April 15,
1992, the Eleventh Circuit affirmed the district court’s grant of relief with respect to
the death sentence. Presnell v. Zant, 959 F.2d 1524 (11th Cir. 1992).
From February 22, 1999, through March 16, 1999, the Superior Court of Cobb
County conducted Petitioner’s re-sentencing trial. On March 16, 1999, the jury
found the following statutory aggravating circumstances to impose the death
penalty; (1) that the murder of Lori Ann Smith was committed by the defendant
while the defendant was engaged in the commission of another capital felony, the
aggravated sodomy of Andrea Furlong; and (2) that the murder of Lori Ann Smith
was outrageously and wantonly vile, horrible, and inhuman in that it involved
torture and depravity of mind. Petitioner was then re-sentenced to death.
Petitioner appealed the re-sentencing verdict, and the Supreme Court of
Georgia affirmed Petitioner’s convictions and sentences on July 16, 2001. Presnell
v. State, 274 Ga. 246, 551 S.E.2d 723 (2001). Petitioner filed a petition for writ of
certiorari in the United States Supreme Court, which was denied on May 13, 2002.
Presnell v. Georgia, 535 U.S. 1059, 122 S. Ct. 1921, 152 L. Ed. 2d 829 (2002).
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On October 16, 2002, Petitioner filed a state petition for writ of habeas corpus
in the Superior Court of Butts County, Georgia. Petitioner filed an amended petition
on March 15, 2004. Following an evidentiary hearing held on June 2, 2004, the
Superior Court of Butts County denied Petitioner’s petition for habeas corpus relief
in its entirety on December 30, 2005. Petitioner timely filed his application for
certificate of probable cause to appeal to the Supreme Court of Georgia on March 30,
2006, and this application was denied on November 6, 2006.
Petitioner timely filed his federal petition for writ of habeas corpus in this
Court on June 1, 2007, and he filed an amended petition on February 12, 2008.
Respondent now requests that the Court dismiss Petitioner’s unexhausted and
procedurally defaulted claims.
II.
DISCUSSION
A.
Unexhausted Claim
A federal habeas corpus court may not grant habeas relief to a state prisoner
who has not exhausted available state remedies. 28 U.S.C. § 2254(b)(1)(A). To
exhaust state remedies, petitioners must “fairly present federal claims to the state
courts in order to give the State the opportunity to pass upon and correct alleged
violations of prisoner’s federal rights.” Duncan v. Henry, 513 U.S. 364, 365, 115 S.
Ct. 887, 130 L. Ed. 2d 865 (1995) (citations and internal marks omitted). The Eleventh
Circuit has explained that “[w]hile we do not require a verbatim restatement of the
claims brought in state court, we do require that a petitioner presented his claims to
the state court such that a reasonable reader would understand each claim’s
particular legal basis and specific factual foundation.” McNair v. Campbell, 416 F.3d
1291, 1302 (11th Cir. 2005) (quotation marks and citations omitted).
A “federal habeas court need not require that a federal claim be presented to
a state court if it is clear that the state court would hold the claim procedurally
barred.” Harris v. Reed, 489 U.S. 255, 263, n. 9, 109 S. Ct. 1038, 103 L. Ed. 2d 308
(1989). “[F]ederal courts may treat unexhausted claims as procedurally defaulted,
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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.” Bailey v. Nagle, 172 F.3d 1299,
1305 (11th Cir. 1999) (citation omitted). Under Georgia law, the failure to raise a
claim in a first petition constitutes a waiver of the claim. O.C.G.A. § 9-14-51.
“[R]equiring the petitioner to return to state court only to make a futile application
for relief simply delays the federal courts’ adjudication of his petition.” Kelley v.
Secretary of Dep’t for Corr., 377 F.3d 1317, 1351 (11th Cir. 2004). Accordingly, when
the record makes clear that an unexhausted claim would be procedurally barred in
state court due to a state law procedural default, federal courts may treat the claim
as barred and deny federal habeas relief. See Snowden v. Singletary, 135 F.3d 732,
736 (11th Cir. 1998).
If the respondent establishes that a procedural default has occurred, the
petitioner may overcome the procedural default in one of two ways. Petitioner must
establish either (a) “cause for the default and actual prejudice as a result” or (2) that
“failure to consider the claims will result in a fundamental miscarriage of justice.”
Coleman v. Thompson, 501 U.S. 722, 724, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991);
Gordon v. Nagle, 2 F.3d 385, 388 (11th Cir. 1993).
In this case, Respondent asserts that Claim XXVI in the First Amended
Petition has not been raised in the state courts and is therefore unexhausted. This
claim states the following:
The state court’s improper application of proportionality review
violates Mr. Presnell’s rights pursuant to the Fifth, Sixth, Eighth and
Fourteenth Amendments to the United States Constitution.
(First Am. Petition at 193-96.) Respondent maintains that this claim should be
treated as a procedurally defaulted claim, as such claim would be found to be
“successive” and thus procedurally defaulted pursuant to O.C.G.A. § 9-14-51, if
Petitioner raised the claim in a successive state habeas corpus proceeding.
The Court finds that Claim XXVI was fairly presented to the state courts and
thus is not procedurally barred. This claim stems from the proportionality review
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conducted by the Supreme Court of Georgia in affirming Petitioner’s re-sentence of
death on the direct appeal of his re-sentencing trial. See Presnell v. State, 274 Ga.
246, 551 S.E.2d 723 (2001). Petitioner challenged the validity of the Supreme Court
of Georgia’s proportionality review in his state habeas proceedings. (See Pet. First
Am. State Habeas Pet. [Resp’t’s Ex. 67] at 173-179.) He specifically alleged that his
sentence of death is disproportionate as compared to others who have committed
similar crimes. (Id. at 173.) The state habeas proceeding presented the first available
opportunity for Petitioner to challenge the Supreme Court of Georgia’s
proportionality review, and the state habeas court found that the claim had been
raised and decided adversely to Petitioner on direct appeal. (State Habeas Order
[Resp’t’s Ex. 119] at 9 (citing Presnell, 274 Ga. at 256-57 and Presnell, 241 Ga. at 64).)
Therefore, the Court finds that Petitioner properly exhausted Claim XXVI.
B.
Procedurally Defaulted Claims
A federal habeas court cannot review a claim that was presented to the state
habeas court and rejected pursuant to an independent and adequate state procedural
rule. See Caniff v. Moore, 269 F.3d 1245, 1247 (11th Cir. 2001). “Whether a
particular claim is subject to the doctrine of procedural default . . . is a mixed
question of fact and law.” Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001). The
Eleventh Circuit has “established a three-part test to enable us to determine when
a state court’s procedural ruling constitutes an independent and adequate state rule
of decision.” Id. “First, the last state court rendering a judgment in the case must
clearly and expressly state that it is relying on state procedural rules to resolve the
federal claim without reaching the merits of that claim.” Id. “Second, the state
court’s decision must rest entirely on state law grounds and not be intertwined with
an interpretation of federal law.” Ward v. Hall, 592 F.3d 1144, 1156-57 (11th Cir.
2010) (citing Judd, 250 F.3d at 1313). “Third, the state procedural rule must be
adequate, i.e., firmly established and regularly followed and not applied ‘in an
arbitrary or unprecedented fashion.’” Ward, 592 F.3d at 1157 (quoting Judd, 250
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F.3d at 1313).
In holding that certain of Petitioner’s claims were procedurally defaulted, the
state habeas corpus court relied on Georgia’s procedural default rule set forth in
Black v. Hardin, 255 Ga. 239, 336 S.E.2d 754 (1985). Black states this rule as follows:
[A] failure to make timely objection to any alleged error or deficiency
or to pursue the same on appeal ordinarily will preclude review by writ
of habeas corpus. However, an otherwise valid procedural bar will not
preclude a habeas corpus court from considering alleged constitutional
errors or deficiencies if there shall be a showing of adequate cause for
failure to object or to pursue on appeal and a showing of actual
prejudice to the accused. Even absent such a showing of cause and
prejudice, the relief of the writ will remain available to avoid a
miscarriage of justice where there has been a substantial denial of
constitutional rights.
Id. (emphasis in original); see also O.C.G.A. § 9-14-48(d). Georgia’s procedural
default rule, as stated in Black, provides an adequate and independent state law
ground for denial of a claim. Lynd v. Terry, 470 F.3d 1308, 1313-14 (11th Cir. 2006).
Therefore, unless the Court indicates otherwise in this Order, this Court is unable
to review the merits of claims that the state habeas corpus court found to be
procedurally barred.
As with unexhausted claims that a federal habeas court deems procedurally
defaulted, a federal habeas petitioner may still obtain federal review of a
procedurally-barred claim if the petitioner can demonstrate cause for the default and
actual prejudice resulting from the alleged violation of federal law or that a
fundamental miscarriage of justice will result if the merits of the claim are not
considered. Coleman, 501 U.S. at 750. This Court does not accord deference to any
finding of the state court that Petitioner has failed to show cause and prejudice or
a miscarriage of justice. Crowe v. Head, 356 F. Supp. 2d 1339, 1350 (N.D. Ga. 2005)
(citing Crawford v. Head, 311 F.3d 1288, 1324-27 (11th Cir. 2002)).
The Supreme Court has recognized that the ineffective assistance of trial or
appellate counsel is one basis on which a petitioner may establish cause. See
Coleman, 501 U.S. at 753-54; Murray v. Carrier, 477 U.S. 478, 496, 106 S. Ct. 2639, 91
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L. Ed. 2d 397 (1986). In order to determine whether ineffective assistance of counsel
provides cause and prejudice to excuse any procedurally defaulted claims in this
case, the Court must conduct an analysis under Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
To show that his right to effective assistance of counsel was violated,
Petitioner must satisfy two components:
First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so serious
that counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment. Second, the defendant must show
that the deficient performance prejudiced the defense. This requires
showing that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.
Strickland, 466 U.S. at 687.
To establish that counsel was deficient, Petitioner “must show that counsel’s
representation fell below an objective standard of reasonableness.” Id. at 688. An
ineffective assistance of counsel claim is reviewed from the perspective of defense
counsel based on facts “as they were known to counsel at the time of the
representation.” United States v. Teague, 953 F.2d 1525, 1535 (11th Cir. 1992)
(emphasis in original). “Courts must ‘indulge [the] strong presumption’ that
counsel’s performance was reasonable and that counsel ‘made all significant
decisions in the exercise of reasonable professional judgment.’” Chandler v. United
States, 218 F.3d 1305, 1314 (11th Cir. 2000) (quoting Strickland, 466 U.S. at 689). To
show deficient performance, Petitioner must establish that no competent lawyer
would have taken the action that his lawyer did take. Chandler, 218 F.3d at 1315.
Failure to raise non-meritorious issues is not considered ineffective assistance of
counsel. Card v. Dugger, 911 F.2d 1494, 1520 (11th Cir. 1990).
To establish prejudice, Petitioner “must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694. “A reasonable probability
is a probability sufficient to undermine confidence in the outcome.” Id. In making
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a determination with respect to this prejudice prong, the court must “consider the
totality of the evidence before the judge or jury.” Id. at 695. “To determine whether
the failure to raise a claim . . . resulted in prejudice, we review the merits of the
omitted claim.” Eagle v. Linahan, 279 F.3 926, 943 (11th Cir. 2001) (citation omitted).
“If . . . the omitted claim would have had a reasonable probability of success, then
counsel’s performance was necessarily prejudicial . . . .” Id. (citation omitted).
1.
Portion of Claim II and Claim XVIII
In Claim II, Petitioner alleges, in part, that his execution would violate the
Eighth and Fourteenth Amendments to the United States Constitution because he
is mentally ill. Similarly, in Claim XVIII, Petitioner alleges that his execution would
violate the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments because he
suffers from a combination of mental illness and disabilities, including severe brain
damage. These allegations were found by the state habeas corpus court to be
procedurally barred because Petitioner did not raise the claims in a timely manner.
(See Resp’t’s Ex. 119 at 23.) The state habeas corpus court further found that
Petitioner failed to satisfy the cause and prejudice test or the miscarriage of justice
exception. (Id.) The Court finds that these claims are procedurally defaulted and
that there is no basis upon which to excuse or make an exception to the default.
Respondent argues that these claims stem from Atkins v. Virginia, 536 U.S.
304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002), which the Supreme Court decided on
June 20, 2002. In Atkins, the Supreme Court held that executing a mentally retarded
person constituted “excessive” punishment under the Eighth Amendment’s
prohibition against cruel and unusual punishment. Id. at 321. Relying on Atkins,
Petitioner alleges that the legal basis for these claims is so novel that they were not
available to him on direct appeal. Specifically, Petitioner states that the Atkins
decision came nearly one year after the Supreme Court of Georgia affirmed his resentencing verdict on July 16, 2001, and nine months after it denied reconsideration
on September 19, 2001. See Presnell v. State, 274 Ga. 246, 551 S.E.2d 723 (2001).
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Petitioner therefore asserts that he has cause for his failure to raise the claims prior
to the state habeas corpus court proceedings.
Notwithstanding Petitioner’s urging that the Court essentially extend Atkins
to cover mental illness, Atkins addressed mental retardation, not mental illness.
Many courts, including the United States Court of Appeals for the Eleventh Circuit,
have held that Atkins does not exempt the mentally ill from execution. Carroll v.
Secretary, DOC, FL, 574 F.3d 1354, 1369 (11th Cir. 2009) (rejecting habeas petitioner’s
claim made pursuant to Atkins that he was exempt from execution because he was
mentally ill); see also In re Neville, 440 F.3d 220, 221 (5th Cir. 2006) (holding that
Atkins protects only the mentally retarded from execution); Baird v. Davis, 388 F.3d
1110, 1114-15 (7th Cir. 2004) (stating that the Supreme Court has not held that it is
unconstitutional to execute “persons who kill under an irresistible impulse”); Lewis
v. State, 279 Ga. 756, 764, 620 S.E.2d 778 (2005) (declining to extend Atkins to the
mentally ill). Accordingly, the portion of Petitioner’s Claim II and Petitioner’s Claim
XVIII asserting that Petitioner’s execution would violate his constitutional rights
because Petitioner is mentally ill and suffers from a combination of mental illness
and disabilities are procedurally barred. The Atkins decision, which does not
exempt the mentally ill from execution, cannot form the basis for cause excusing the
default of these claims.2
2.
Claims IV, XXVII, XXXVI
In Claim IV of his amended federal habeas petition, Petitioner alleges that the
prosecution engaged in repeated misconduct throughout all phases of the trial
proceedings, which violated his rights under the Fourth, Fifth, Sixth, Eighth and
Fourteenth Amendments to the United States Constitution. Specifically, Petitioner
alleges that the prosecutor: (a) failed to disclose allegedly relevant, exculpatory files,
Because the mentally ill are not exempted from execution, Petitioner’s counsel
would not have been ineffective for not raising the claim. See Card, 911 F.2d at 1520.
2
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information, documents, and/or evidence; (b) made improper, inadmissible, and
inaccurate statements during closing argument; and (c) presented testimony it knew
or reasonably should have known was perjured. Similar to the allegations in Claim
IV(a), Petitioner alleges in Claim XXVII that the state destroyed potentially
exculpatory evidence and alleges in Claim XXXVI that the prosecutor suppressed
material exculpatory evidence.
a.
Failure to Disclose Exculpatory Evidence, Destruction
and Suppression of Exculpatory Evidence, and
Presentation of Perjured Testimony
The state habeas corpus court found Petitioner’s claims concerning the
prosecutor’s alleged failure to disclose exculpatory information, destruction and
suppression of exculpatory evidence, and presentation of perjured testimony to be
procedurally defaulted due to Petitioner’s failure to raise the claims in a timely
manner. (Resp’t’s Ex. 119 at 20, 23, 24.) The state habeas corpus court further found
that Petitioner had failed to establish cause and prejudice or satisfy the miscarriage
of justice exception with respect to these claims. (Id.) The Court finds that these
portions of Claim IV and the entirety of Claims XXVII and XXXVI are procedurally
defaulted, but the Court defers consideration of whether Petitioner can overcome
the default by establishing cause and prejudice.
Petitioner asserts that these claims involve violations of his constitutional
rights as set forth in Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215
(1963), Kyles v. Whitley, 514 U.S. 419, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995), and
Strickler v. Greene, 527 U.S. 263, 119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999). Petitioner
further argues that no valid default exists with respect to these claims because the
procedural default rule that Respondent claims he violated is not adequate and
independent. In this regard, Petitioner states that the procedural default rule is not
strictly and regularly followed, and Petitioner cites cases in which he maintains the
Supreme Court of Georgia did not apply the procedural default rule to Brady/Giglio
claims. See Smith v. Zant, 250 Ga. 645, 651, 301 S.E.2d 32 (1983) (holding that the
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petitioner was entitled to a review of the merits of his claim because he
demonstrated grounds for relief which he could not have reasonably raised earlier);
Head v. Stripling, 277 Ga. 403, 407, 590 S.E.2d 122, 126 (2003) (holding that the Brady
claim was not procedurally defaulted because the petitioner could not have raised
the claim earlier).
The Court rejects Petitioner’s arguments that the procedural default rule
applied by the state habeas court in this case is not regularly followed and therefore
not adequate and independent. As Respondent points out, Georgia regularly
applies the procedural default doctrine to Brady/Giglio claims. See, e.g., Upton v.
Parks, 284 Ga. 254, 255, 644 S.E.2d 196 (2008) (“Because Parks did not pursue his
Brady claim until habeas proceedings, the initial question is whether Parks can
establish sufficient cause and prejudice to overcome his procedural default.”);
Walker v. Johnson, 282 Ga. 168, 169, 646 S.E.2d 44 (2007) (concluding that the
petitioner’s Brady claim was not procedurally defaulted because the petitioner
successfully established cause and prejudice to excuse the default); Schofield v.
Meders, 280 Ga. 865, 869, 632 S.E.2d 369 (2006) (concluding that the petitioner could
not satisfy the cause and prejudice test with respect to his defaulted Brady claim and
holding that the claim remained defaulted); Waldrip v. Head, 279 Ga. 826, 829, 620
S.E.2d 829 (2005) (finding that petitioner had failed to show prejudice sufficient to
overcome procedural default of Brady claim).
In the two cases relied on by Petitioner, Smith and Stripling, the Supreme
Court of Georgia essentially performed a cause and prejudice analysis to determine
that the Brady claims in those cases were due to be considered on the merits,
notwithstanding the fact that the Supreme Court of Georgia did not expressly refer
to its analysis as such.3 See Turpin v. Todd, 268 Ga. 820, 827, 493 S.E.2d 900 (1997)
The Court notes that Smith preceded the decision in Black v. Hardin by over
two years. This might explain the Supreme Court of Georgia’s failure to apply the
procedural default rule utilizing the precise terminology set forth in Black v. Hardin.
3
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(“Thus, this Court in Smith concluded that the State’s concealment was a sufficient
cause for Smith’s failure to raise the claim apart from whether Smith, as the State
contended, could have discovered the factual basis of the claim with a diligent
investigation.”); Head v. Stripling, 277 Ga. at 407 (relying on Turpin’s explanation
of the cause and prejudice test for overcoming procedural default in determining
that the petitioner’s Brady claim was not procedurally defaulted). Therefore, in the
Smith and Stripling cases, the Brady claims were subject to the procedural default
analysis. The Supreme Court of Georgia simply determined that there was a
sufficient basis to excuse the procedural default and allow the claims to proceed on
the merits. Thus, the Court concludes that the procedural default rule is adequate
and independent and that the application of that rule renders Petitioner’s Brady
claim procedurally defaulted.
Petitioner next asserts that this Court is nevertheless required to address these
claims on the merits because there exists cause and prejudice to excuse the
procedural default. With respect to cause, Petitioner relies on Banks v. Dretke, 540
U.S. 668, 697-98, 124 S. Ct. 1256, 157 L. Ed. 2d 1166 (2004) and asserts that the actions
of the state in destroying, hiding, or failing to disclose evidence made his
compliance with the procedural rule “impracticable.” Petitioner further asserts that
he can demonstrate prejudice by establishing a reasonable probability that the result
of his sentencing proceeding would have been different had the suppressed
evidence been disclosed. See Strickler, 527 U.S. at 289.
Applying the cause and prejudice analysis to a Brady claim is closely
intertwined with reviewing the merits of the Brady claim. Strickler, 527 U.S. at 28182. To prevail on a Brady claim, a petitioner must demonstrate that (1) evidence
favorable to the petitioner (2) was suppressed by the government and (3) the
petitioner suffered prejudice. Banks, 540 U.S. at 691. The Supreme Court observed
in Strickler that for a Brady claim that is procedurally defaulted, “cause and
prejudice parallel two of the three components of the alleged Brady violation itself.”
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Id. at 282. First, the suppression of evidence “constitutes one of the causes for the
failure to assert a Brady claim in the state courts.” Id. Second, as with the prejudice
prong of the Brady analysis, prejudice within the context of the cause and prejudice
analysis does not exist unless the suppressed evidence was “material” for Brady
purposes. Id. Therefore, resolving the merits of a Brady claim is essentially required
to resolve the procedural default challenge.
Because the cause and prejudice analysis parallels two of the components of
a Brady violation, the Court will evaluate simultaneously the merits of the
Brady claim and whether there is a basis to excuse Petitioner from the procedural
default of the Brady claim. Thus, the Court holds that Claims XXVII and XXXVI and
the portions of Claim IV concerning the prosecution’s failure to disclose exculpatory
evidence and the prosecution’s presentation of perjured testimony are procedurally
defaulted, but the Court will permit the parties to brief the claims fully at a later date
to enable the Court to evaluate Petitioner’s cause and prejudice arguments.
b.
Improper Closing Arguments
On Petitioner’s direct appeal to the Supreme Court of Georgia, the Supreme
Court of Georgia found that Petitioner’s claims regarding the State’s closing
arguments were procedurally defaulted because Petitioner failed to object to any
part of the argument at trial. Presnell v. State, 274 Ga. 246, 255, 551 S.E.2d 723 (2001).
The Supreme Court of Georgia further found no error to overcome the procedural
default. Id. at 255-56.
Petitioner maintains that the procedural default doctrine does not preclude
this Court from reviewing this portion of Petitioner’s Claim IV on the merits because
the Supreme Court of Georgia, albeit finding the claim procedurally defaulted,
proceeded to address the merits of the claim. In Harris v. Reed, 489 U.S. 255, 109 S.
Ct. 1038, 103 L. Ed. 2d 308 (1989), the Supreme Court held that a federal court is not
foreclosed from reviewing the merits of a habeas claim pursuant to the procedural
default doctrine in the absence of a clear statement by the last state court to consider
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the claim that it relied on procedural grounds to deny relief. However, “[w]hen a
state court addresses both the independent state procedural ground and the merits
of the federal constitutional claim, the federal court should apply the state
procedural bar and decline to reach the merits of the claim.” Cloud v. DeLoach, 147
F. App’x 817, 818-19 (11th Cir. 2005) (citing Marek v. Singletary, 62 F.3d 1295, 130102 (11th Cir. 1995)); Alderman v. Zant, 22 F.3d 1541, 1549 (11th Cir. 1994)
(“However, as here, where a state court has ruled in the alternative, addressing both
the independent state procedural ground and the merits of the federal claim, the
federal court should apply the state procedural bar and decline to reach the merits
of the claim.”)).
In the instant case, the Supreme Court of Georgia discussed the merits only
in the context of analyzing whether there was an error that would enable Petitioner
to overcome the procedural default. Therefore, the Court finds that the Supreme
Court of Georgia rested its dismissal of the claim on the procedural bar, not the
merits, and that the procedural default found by the Supreme Court of Georgia
establishes an “adequate and independent” ruling of procedural default. See Smith
v. McKee, 598 F.3d 374, 383 (7th Cir. 2010) (“The state court briefly addresses the
merits of this claim, but did so only in the context of the cause-and-prejudice
analysis required to set aside forfeiture.”).
Petitioner further urges that the ineffective assistance of counsel in failing to
contemporaneously object to the state’s alleged misconduct constitutes cause to
excuse the default.
Petitioner requests that the Court defer a ruling on the
allegations of default, since the cause and prejudice analysis on the default issue is
intertwined with the merits of the claim. Respondent asserts that the Court should
defer to the Supreme Court of Georgia’s finding of procedural default due to
Petitioner’s failure to argue, much less establish, that the Supreme Court of
Georgia’s conclusions regarding the absence of errors to overcome the procedural
default are an unreasonable determination of established federal precedent or an
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unreasonable determination of the facts. However, the latter argument is one to be
made in a merits brief. Accordingly, while the Court holds that this portion of
Claim IV is procedurally defaulted, the Court will allow Petitioner to attempt to
show cause and prejudice later in the proceeding to overcome the default.
3.
Claims V, XXXII, and XXXVII
In Claim V, Petitioner asserts that his execution by lethal injection would
constitute cruel and unusual punishment. In Claim XXXII, Petitioner alleges that his
sentence to death under a statute that has been declared unconstitutional renders his
death sentence null and void. In Claim XXXVII, Petitioner asserts that subjecting
him to death by lethal injection would subject him to punishment under an ex post
facto law. The state habeas corpus court found all three of these claims to be
procedurally defaulted because Petitioner did not raise the claims in a timely
manner. (See Resp’t’s Ex. 119 at 16-18.) The state habeas corpus court further found
that Petitioner had failed to establish cause and prejudice or satisfy the miscarriage
of justice exception with respect to each of the claims. (Id.)
Petitioner contends that the state habeas corpus court erred in concluding that
Petitioner failed to raise his lethal injection claims in a timely manner, as Petitioner
asserts that their factual and legal bases did not exist at the time of his direct appeal.
In this regard, Petitioner emphasizes that the Supreme Court of Georgia did not
decide Dawson v. State, 274 Ga. 327, 554 S.E.2d 137 (2001), which effectively
changed the method by which Petitioner would be executed from electrocution to
lethal injection, until more than a month after the conclusion of his direct appeal.
Petitioner therefore contends that the procedural default found by the state habeas
corpus court is not valid, because Petitioner could not have raised any of his lethal
injection claims until the commencement of his state habeas proceedings.
Respondent does not refute Petitioner’s assertions that the lethal injection
claims were not available to him until the commencement of his state habeas
proceedings. Respondent argues, however, that Petitioner cannot establish cause
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and prejudice as shown by court decisions holding that death by lethal injection is
not unconstitutional. See, e.g., Baze v. Rees, 553 U.S. 35, 128 S. Ct. 1520, 170 L. Ed.
2d 420 (2008). Respondent, then, is essentially requesting that the Court reach the
merits of the underlying claim, which this Court will not do at this time, given that
the parties have not fully briefed the merits of the claim.
Accordingly, albeit found by the state habeas corpus court to be procedurally
defaulted, Claims V, XXXII, and XXXVII will not be dismissed, as Petitioner has
persuasively argued that he could not have raised any of these claims until the
commencement of his state habeas proceedings. There is cause to excuse the
procedural default of these claims, and the Court defers consideration of whether
Petitioner can establish prejudice until the parties brief the merits of the claims.
4.
Claim VI
In Claim VI, Petitioner argues that he has been denied a speedy trial. The
state habeas corpus court found this claim to be procedurally defaulted and further
found that Petitioner had failed to establish cause and prejudice or satisfy the
miscarriage of justice exception. (Resp’t’s Ex. 119 at 18.) The Court finds that Claim
VI is procedurally defaulted, but the Court will allow Petitioner the opportunity to
attempt to overcome the default.
Petitioner contends that the ineffective assistance of his trial and appellate
counsel provides cause for any default of this claim. Petitioner further contends that
he can demonstrate prejudice and sets forth several of the arguments he intends to
present. Insofar as Petitioner’s allegations of ineffective assistance of counsel have
not been fully briefed by the parties and the analysis of prejudice is intertwined with
the merits, the Court is not presently in a position to rule on the ineffective
assistance of counsel allegations and determine whether ineffective assistance of
counsel supports the existence of cause and prejudice to excuse the procedural
default of the speedy trial claim. As such, the Court finds the speedy trial claim to
be procedurally defaulted, but this finding is without prejudice to Petitioner being
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permitted to attempt to establish cause and prejudice to overcome the default.
5.
Claim VII
In Claim VII, Petitioner alleges that the state violated double jeopardy and his
rights to due process, a fair trial, and a reliable sentencing determination by
introducing additional statutory and non-statutory aggravating circumstances at his
re-sentencing. The state habeas corpus court found this claim to be procedurally
defaulted and additionally found that Petitioner had failed to establish cause and
prejudice or a miscarriage of justice to overcome the default. (Resp’t’s Ex. 119 at 19.)
The Court finds that Claim VII is procedurally defaulted, but the court will allow
Petitioner the opportunity to attempt to overcome the default.
Again, Petitioner contends that the ineffective assistance of his trial and
appellate counsel provides cause for any default of this claim. Petitioner further
contends that he can demonstrate prejudice and that prejudice in such circumstances
is self-evident. Insofar as Petitioner’s allegations of ineffective assistance of counsel
have not been fully briefed by the parties and the analysis of prejudice is intertwined
with the merits, the Court is not presently in a position to rule on the ineffective
assistance of counsel allegations and determine whether any ineffective assistance
of counsel supports the existence of cause and prejudice to excuse the procedural
default of the double jeopardy claim. As such, the Court finds this double jeopardy
claim to be procedurally defaulted, but this finding is without prejudice to Petitioner
being permitted to attempt to establish cause and prejudice to overcome the default.
6.
Claim XII
In Claim XII, Petitioner asserts that he was tried while incompetent. The state
habeas corpus court clearly found this claim to be procedurally defaulted and
additionally found that Petitioner had failed to establish cause and prejudice or a
miscarriage of justice to overcome the default. (Resp’t’s Ex. 119 at 21.) The Court
will consider the merits of Claim XII.
Respondent concedes that Petitioner’s claim that he was tried while
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incompetent cannot be procedurally defaulted under Adams v. Wainwright, 764
F.2d 1356 (11th Cir. 1985). Respondent argues, however, that Petitioner abandoned
the claim in the state habeas corpus court when he failed to argue the claim or argue
in support of the claim. However, in this Court’s opinion, denying or dismissing a
claim based on abandonment is a procedural ruling, and this is not the procedural
ruling on which the state habeas corpus court relied in denying relief on this claim.
Further, while Respondent has cited a couple of decisions in which the Supreme
Court of Georgia has deemed issues abandoned in similar circumstances, the Court
is not aware of any firmly established and regularly followed state procedural rule
dictating that a claim not argued in briefing is abandoned. Cf. Farmer v. McNeil,
No. 5:08cv292/RS/MD, 2010 WL 1957502, at *8 (Apr. 6, 2010) (acknowledging that
“it is an established and regularly enforced Florida procedural rule that when some
or all claims in a Rule 3.850 post-conviction motion are denied after evidentiary
hearing, briefing in the appellate court is required and failure to include and
sufficiently argue any and all claims on which appellate review is sought operates
as an abandonment of that claim”); Torres v. Sec., Dep’t of Corr., 2008 WL 1897600,
at * (M.D. Fla. Apr. 28, 2008) (“Florida law is that, in non-summary proceedings,
briefs are required and failure to include and argue any preserved issue in the initial
brief acts as a waiver.”). Finally, Respondent improperly raised this abandonment
argument for the first time in its reply brief, and Petitioner has not had a fair
opportunity to respond to the argument. Accordingly, insofar as the state habeas
corpus court improperly found this claim to be procedurally defaulted, the Court
will consider the merits of Claim XII.
7.
Claim XIX
In Claim XIX, Petitioner maintains that he was denied due process and the
right to be present at all proceedings when the trial court excluded him from
numerous bench conferences. The state habeas corpus court found this claim to be
procedurally defaulted and additionally found that Petitioner had failed to establish
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cause and prejudice or a miscarriage of justice to overcome the default. (Resp’t’s Ex.
119 at 23-24.) The Court finds that Claim XIX is procedurally defaulted, but the
court will allow Petitioner the opportunity to attempt to overcome the default.
Relying on United States v. Gordon, 829 F.2d 119, 124-26 (D.C. Cir. 1987),
Petitioner argues that no adequate default exists with respect to this claim, as only
he, and not his counsel, can waive his right to be present at trial. Petitioner likewise
asserts that, for this reason, there is no need for him to demonstrate cause and
prejudice. The Court finds Petitioner’s arguments to be without merit, particularly
in the context of the claim presented by Petitioner in this case.
Petitioner does not allege that he was not present in the courtroom when these
bench conferences from which he was allegedly excluded occurred. Unlike the
criminal defendant in the Gordon case, who was absent from the courtroom during
jury selection, Petitioner was present in the courtroom during the occurrences of the
alleged bench conferences and could have made any objection known. See United
States v. Gagnon, 470 U.S. 522, 528-29, 105 S. Ct. 1482, 84 L. Ed. 2d 486 (1985)
(holding that defendant or defendant’s counsel must affirmatively assert right to be
present at conferences and stating that the court “need not get an express ‘on the
record’ waiver from the defendant for every trial conference which a defendant may
have a right to attend”); Kilmartin v. Dormire, 161 F.3d 1126, 1127 (8th Cir. 1998)
(finding no violation of the defendant’s right to be present during a bench
conference because the defendant was not excluded from the courtroom and the
defendant “voiced neither a desire to be present nor an objection to his absence from
the bench conference”). Further, courts have held that claims similar to Petitioner’s
can be procedurally defaulted. See Williams v. French, 146 F.3d 203, 218 (4th Cir.
1998); Cole v. Crosby, No. 505CV222OC10GRJ, 2006 WL 1169536, at *8 (M.D. Fla.
May 3, 2006).
As to cause and prejudice, Petitioner alternatively argues that cause to excuse
the default exists for at least two reasons. First, Petitioner states that his absence
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from the proceedings prevented him from raising this claim. Second, Petitioner
states that the ineffective assistance of both his trial counsel in failing to secure his
presence and object to his absence and also his appellate counsel for failing to raise
this claim on direct appeal provides cause to excuse any default of the claim. The
Court finds the first basis for cause is without merit, as Petitioner has not alleged
that he was absent from the courtroom and therefore completely unable to object.
As to the second proposed basis for cause, Petitioner’s allegations of ineffective
assistance of counsel have not been fully briefed by the parties. Additionally, the
prejudice inquiry will require the Court to review the merits of the underlying claim.
As such, the Court is not presently in a position to rule on the ineffective assistance
of counsel allegations and determine whether any ineffective assistance of counsel
supports the existence of cause and prejudice to excuse the procedural default of this
claim. Therefore, the Court finds Claim XIX to be procedurally defaulted, but this
finding is without prejudice to Petitioner being permitted to attempt to establish
cause and prejudice to overcome the default.
8.
Claim XXIII
In Claim XXIII, Petitioner argues that the trial court violated his constitutional
rights by failing to provide him with the necessary assistance of competent and
independent experts.
The state habeas corpus court found this claim to be
procedurally defaulted and additionally found that Petitioner had failed to establish
cause and prejudice or a miscarriage of justice to overcome the default. (Resp’t’s Ex.
119 at 20-21.) The Court finds that Claim XIX is procedurally defaulted, but the
court will allow Petitioner the opportunity to attempt to overcome the default.
Petitioner asserts that to the extent his trial counsel failed to request or make
the proper showing necessary to secure this expert assistance, they provided
ineffective assistance of counsel that excuses any procedural default.
As to
prejudice, Petitioner states that he tendered evidence in his state habeas proceedings
demonstrating the type of appropriate expert assistance to which he was entitled.
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Insofar as Petitioner’s allegations of ineffective assistance of counsel have not been
fully briefed by the parties and the analysis of prejudice is intertwined with the
merits, the Court is not presently in a position to rule on the ineffective assistance
of counsel allegations and determine whether ineffective assistance of counsel
supports the existence of cause and prejudice to excuse the procedural default of the
speedy trial claim. As such, the Court finds Claim XXIII to be procedurally
defaulted, but this finding is without prejudice to Petitioner being permitted to
attempt to establish cause and prejudice to overcome the default.
9.
Claim XXVIII
In Claim XXVIII, Petitioner asserts that the jury committed misconduct
throughout all phases of the trial and was infected with bias. The alleged juror
misconduct included the following:
a)
violating their oaths and the court’s instructions;
b)
being tainted and/or affected by and/or relying upon outside,
extraneous and/or unlawful influences, facts, factors, sources of fact
and/or law, person and officials;
c)
referring to and/or consulting and/or relying upon any and all such
outside, extraneous and/or unlawful influences, facts, factors, sources
of fact and/or law, persons and officials;
d)
testifying falsely during jury selection and/or failing to reveal relevant
and material information;
e)
making improper and unlawful attempts to contact, and/or contacting
court officials, the parties, witnesses and/or other outside sources
and/or influences;
f)
considering matters extraneous to the trial;
g)
refusal of certain jurors to deliberate;
h)
ex parte deliberations by certain jurors;
i)
improper biases of jurors that infected their deliberations; and
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j)
improperly prejudging Petitioner’s case.
The state habeas corpus court found this claim to be procedurally defaulted and
additionally found that Petitioner had failed to establish cause and prejudice or a
miscarriage of justice to overcome the default. (Resp’t’s Ex. 119 at 22-23.) The Court
finds that Claim XXVIII is procedurally defaulted, but the court will allow Petitioner
the opportunity to attempt to overcome the default.
Petitioner contends that no valid default exists with respect to Claim XXVIII.
In this regard, Petitioner asserts that no evidence would have alerted Petitioner’s
trial or appellate counsel to the existence of the alleged misconduct. See Turpin v.
Todd, 268 Ga. 820, 827, 493 S.E.2d 900 (1997) (finding cause for a petitioner’s failure
to raise a claim of juror misconduct on appeal based, in part, on there being “no
evidence . . . that would have alerted trial or appellate counsel to the presence of any
misconduct by the jury or the bailiff”). Assuming that the factual basis for the claim
was not reasonably available to counsel, Petitioner has a basis to argue that there is
cause to excuse the procedural default, see McCleskey v. Zant, 499 U.S. 467, 493-94,
111 S. Ct. 1454, 113 L. Ed. 2d 517 (1991); Murray v. Carrier, 477 U.S. 478, 488, 106 S.
Ct. 2639, 91 L. Ed. 2d 397 (1986), but the state habeas corpus court’s initial finding
of procedural default is not invalid.
The Court will permit Petitioner the
opportunity to attempt to establish cause and prejudice to overcome the procedural
default of the claim.
Petitioner likewise maintains that his jurors failed to disclose fully and
accurately the full prejudicial impact of an incident in which a member of the public
allegedly accosted them and urged them to “Fry him!” As to this portion of the
juror misconduct claim, Petitioner contends that the ineffective assistance of his trial
and appellate counsel excuses the default. Insofar as Petitioner’s allegations of
ineffective assistance of counsel have not been fully briefed by the parties and the
analysis of prejudice is intertwined with the merits, the Court is not presently in a
position to rule on the ineffective assistance of counsel allegations and determine
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whether ineffective assistance of counsel supports the existence of cause and
prejudice to excuse the procedural default of this portion of the juror misconduct
claim. As such, the Court finds this portion of Claim XXVIII to be procedurally
defaulted, but this finding is without prejudice to Petitioner being permitted to
attempt to establish cause and prejudice to overcome the default.
10.
Claim XXIX
In Claim XXIX, Petitioner maintains that the application of the unified appeal
procedure in his re-sentencing trial deprived him of the effective assistance of
counsel, a fair trial by a fair and impartial jury, due process, equal protection, and
a fair and reliable capital sentencing proceeding. The state habeas corpus court
found this claim to be procedurally defaulted and additionally found that Petitioner
had failed to establish cause and prejudice or a miscarriage of justice to overcome
the default. (Resp’t’s Ex. 119 at 24-25.) The Court finds that Claim XXIX is
procedurally defaulted, but the court will allow Petitioner the opportunity to
attempt to overcome the default.
Petitioner contends that his trial and appellate counsel rendered ineffective
assistance by failing to object to this procedure’s application or to challenge it on his
direct appeal and that such ineffective assistance by his counsel excuses the default
of this claim. Petitioner also articulates several bases for asserting prejudice. Insofar
as Petitioner’s allegations of ineffective assistance of counsel have not been fully
briefed by the parties and the analysis of prejudice is intertwined with the merits,
the Court is not presently in a position to rule on the ineffective assistance of counsel
allegations and determine whether ineffective assistance of counsel supports the
existence of cause and prejudice to excuse the procedural default of the claim. As
such, the Court finds Claim XXIX to be procedurally defaulted, but this finding is
without prejudice to Petitioner being permitted to attempt to establish cause and
prejudice to overcome the default.
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11.
Claim XXX
In Claim XXX, Petitioner alleges that the lack of a uniform standard for
seeking the death penalty across Georgia renders his death sentence
unconstitutional under Bush v. Gore, 531 U.S. 98, 121 S. Ct. 525, 148 L. Ed. 2d 388
(2000). The state habeas corpus court found this claim to be procedurally defaulted
and additionally found that Petitioner had failed to establish cause and prejudice or
a miscarriage of justice to overcome the default. (Resp’t’s Ex. 119 at 25.) The Court
finds that Claim XXX is procedurally defaulted and due to be dismissed.
As indicated above, Petitioner premises this claim on Bush v. Gore, which
Petitioner states the Supreme Court decided two weeks after Petitioner filed his
notice of appeal with the Supreme Court of Georgia and just two months before he
filed his principal brief on that direct appeal. Petitioner maintains that his claim
based on this decision is so novel that its legal basis was not reasonably available to
counsel and that he therefore has cause for his failure to raise the claim before the
Supreme Court of Georgia. Petitioner alternatively argues that the ineffectiveness
of his counsel in failing to raise this claim constitutes cause to excuse the default.
The Court disagrees and finds no need to receive further briefing on this issue.
Bush v. Gore, which involved an analysis of equal protection in the context
of the election process, has no relevance in the criminal procedure context. Coleman
v. Quarterman, 456 F.3d 537, 542-43 (5th Cir. 2006); Crowe v. Terry, 426 F. Supp. 2d
1310, 1355 (N.D. Ga. 2005). Indeed, the opinion in Bush v. Gore expressly states that
it is limited to the specific facts presented in that case. 531 U.S. at 109 (“Our
consideration is limited to the present circumstances, for the problem of equal
protection in election processes generally presents many complexities.”). Therefore,
the Supreme Court’s issuance of the decision in Bush v. Gore does not excuse
Petitioner’s procedural default of this claim, and Petitioner’s appellate counsel did
not render ineffective assistance by not raising the claim on Petitioner’s appeal.
Claim XXX will be dismissed.
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12.
Claim XXXI
In Claim XXXI, Petitioner argues that the verdict was fatally vague and
deprived Petitioner of his constitutional rights. The state habeas corpus court found
this claim to be procedurally defaulted and additionally found that Petitioner had
failed to establish cause and prejudice or a miscarriage of justice to overcome the
default. (Resp’t’s Ex. 119 at 25.) The Court finds that Claim XXXI is procedurally
defaulted, but the court will allow Petitioner the opportunity to attempt to overcome
the default.
Petitioner asserts that the ineffectiveness of his appellate counsel in failing to
raise this claim on his direct appeal constitutes cause to excuse the default. Insofar
as Petitioner’s allegations of ineffective assistance of appellate counsel have not been
fully briefed by the parties and the analysis of prejudice is intertwined with the
merits, the Court is not presently in a position to rule on the ineffective assistance
of counsel allegations and determine whether ineffective assistance of counsel
supports the existence of cause and prejudice to excuse the procedural default of the
claim. As such, the Court finds Claim XXXI to be procedurally defaulted, but this
finding is without prejudice to Petitioner being permitted to attempt to establish
cause and prejudice to overcome the default.
13.
Claim XXXIII
In Claim XXXIII, Petitioner asserts that his re-sentencing trial violated his right
to be free from double jeopardy. The state habeas corpus court found this claim to
be procedurally defaulted and additionally found that Petitioner had failed to
establish cause and prejudice or a miscarriage of justice to overcome the default.
(Resp’t’s Ex. 119 at 18-19.) The Court finds that Claim XXXIII is procedurally
defaulted, but the court will allow Petitioner the opportunity to attempt to overcome
the default.
Petitioner contends that the ineffective assistance of his trial and appellate
counsel provides cause for any default of this claim. Petitioner further contends that
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he can demonstrate prejudice because if the state indeed violated his right to be free
from double jeopardy, his sentence of death would be invalid. Insofar as Petitioner’s
allegations of ineffective assistance of counsel have not been fully briefed by the
parties and the analysis of prejudice is intertwined with the merits of the double
jeopardy claim, the Court is not presently in a position to rule on the ineffective
assistance of counsel allegations and determine whether any ineffective assistance
of counsel supports the existence of cause and prejudice to excuse the procedural
default of the double jeopardy claim. As such, the Court finds this double jeopardy
claim to be procedurally defaulted, but this finding is without prejudice to Petitioner
being permitted to attempt to establish cause and prejudice to overcome the default.
14.
Claim XXXIV
In Claim XXXIV, Petitioner alleges that the state used peremptory challenges
in a discriminatory manner. The state habeas corpus court found this claim to be
procedurally defaulted and additionally found that Petitioner had failed to establish
cause and prejudice or a miscarriage of justice to overcome the default. (Resp’t’s Ex.
119 at 19-20.) The Court finds that Claim XXXIV is procedurally defaulted, but the
court will allow Petitioner the opportunity to attempt to overcome the default.
Petitioner maintains that his trial counsel rendered ineffective assistance by
failing to object to the state’s use of its peremptory challenges and that his appellate
counsel rendered ineffective assistance by failing to raise this issue on appeal.
Petitioner argues that said ineffective assistance constitutes cause to excuse any
procedural default and that the prejudice from the violation is patent. Insofar as
Petitioner’s allegations of ineffective assistance of counsel have not been fully
briefed by the parties and the analysis of prejudice is intertwined with the merits,
the Court is not presently in a position to rule on the ineffective assistance of counsel
allegations and determine whether any ineffective assistance of counsel supports the
existence of cause and prejudice to excuse the procedural default of Claim XXXIV.
As such, the Court finds this claim to be procedurally defaulted, but this finding is
- 28 -
without prejudice to Petitioner being permitted to attempt to establish cause and
prejudice to overcome the default.
III.
CONCLUSION
Based on the foregoing reasons, the Court concludes that Petitioner’s Claim
XXVI was properly exhausted and is allowed to proceed on the merits. Petitioner’s
Claims IV, VI, VII, XIX, XXIII, XXVII, XXVIII, XXIX, XXXI, XXXIII, XXXIV, XXXVI
are procedurally defaulted, without prejudice to Petitioner demonstrating cause and
prejudice to overcome the default. Petitioner’s Claims V, XXXII, and XXXVII are
also procedurally defaulted; however, since Petitioner has already established cause
to excuse the default, Claims V, XXXII, and XXXVII are deemed procedurally
defaulted, without prejudice to Petitioner demonstrating prejudice to excuse the
default. The portion of Petitioner’s Claim II based on mental illness and the entirety
of Claims XVIII and XXX are procedurally defaulted and hereby DISMISSED.
Petitioner’s Claim XII is not procedurally defaulted and is allowed to proceed on the
merits.
In accordance with the Consent Scheduling Order [Doc. No. 12] entered in this
case, Petitioner shall have sixty (60) days from the date of this Order to file any
request for discovery.
SO ORDERED this 25th day of March, 2013.
s/ CLARENCE COOPER
CLARENCE COOPER
SENIOR UNITED STATES DISTRICT JUDGE
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