Sears v. Upton
Filing
37
OPINION AND ORDER that Petitioner Demarcus Ali Sears has procedurally defaulted on his claims for: (1) ineffective assistance of counsel for failing to investigate, rebut, and object to evidence of Petitioner's bad behavior in the Cobb County Adult Detention Center; (2) prosecutorial misconduct for the prosecutor vouching for Williams' credibility during his guilt-innocence phase closing argument; (3) prosecutorial misconduct for arguing the worth and value of the victim during his sentencing phase closing argument; (4) prosecutorial misconduct for the violation of Giglio v. United States, 405 U.S. 150 (1972) in presenting allegedly false testimony from Agent McCravy, Detective Bello, and Major Burns, and the testimony of P hillip Williams regarding the crime's circumstances; (5) prosecutorial misconduct for the prosecutor arguing during the sentencing phase closing argument that the jurors should punish Petitioner for rape; (6) prosecutorial misconduct for the prosecutor injecting his own view of the evidence in his guilt-innocence and sentencing phase closing arguments, except as to his claim that the prosecutor injected his own viewpoint about the purpose of brass knuckles; (7) trial court error in dea th-qualifying the jury and disqualifying, under Witherspoon v. Illinois, 391 U.S. 510, 522 (1968), five jurors for their views on the death penalty; and (8) relief based on his cognitive and emotional impairments rendering him the legal equivalent of a juvenile or intellectually disabled offender. These claims are DISMISSED. IT IS FURTHER ORDERED that Petitioner Demarcus Ali Sears claimsfor: (1) trial court error in failing at the sentencing phase to define the elements ofarmed robbery, and (2 ) prosecutorial misconduct for the prosecutor denigrating inhis sentencing phase closing argument the jurors' right to exercise mercy, are DISMISSED. IT IS FURTHER ORDERED that Petitioner Demarcus Ali Sears' claims that: (1) the extraordina ry post-offense delay in imposition of his sentence violates the Eighth Amendment, and (2) Georgia's use of lethal injection as a means of execution violates the Eighth Amendment, are not cognizable claims for federal habeas relief and are DISM ISSED. IT IS FURTHER ORDERED that Petitioner is entitled to proceed on his remaining claims. IT IS FURTHER ORDERED that, pursuant to the Court's June 24, 2014, Scheduling Order, Petitioner shall have thirty (30) days from the date of this Orde r in which to file any request for discovery and any motion for an evidentiary hearing. Respondent shall have thirty (30) days from the filing of Petitioner's Motion(s) in which to file a response. Petitioner shall have fifteen (15) days from t he filing of Respondent's Response to his Motions in which to reply. If discovery is permitted but an evidentiary hearing is not held, Petitioner shall have ninety (90) days from the date of the conclusion of discovery in which to file his fin al brief on the merits of all claims before the Court. If an evidentiary hearing is held, Petitioner shall have ninety (90) from the date that the transcript is filed in which to file his final brief on the merits of his claims. If Petitioner' s requests for both discovery and an evidentiary hearing are denied, then Petitioner shall have ninety (90) days from the date of the Court's Order denying his Motions in which to file his final brief on the merits. In all cases, Respondent s hall have sixty (60) days from the filing of Petitioner's brief in which to file his final brief in response, and Petitioner shall have forty-five (45) days thereafter in which to reply. Signed by Judge William S. Duffey, Jr on 4/8/2016. (anc)
armed robbery. Id. at 368. The Georgia Supreme Court affirmed Petitioner’s
convictions and sentence.1 Id.
In 2000, Petitioner filed his petition for state habeas corpus relief, which was
denied on January 9, 2008.2 Id. Petitioner then filed an Application for Certificate
of Probable Cause to Appeal the ruling of the state habeas court, which the Georgia
Supreme Court denied on November 2, 2009. ([8] ¶ 1). On January 27, 2010,
Petitioner filed his petition for certiorari with the United States Supreme Court.
(Id.).
On June 25, 2010, while Petitioner’s certiorari petition was pending,
Petitioner filed his Petition for Writ of Habeas Corpus [1] in this Court. Four days
later, on June 29, 2010, the Supreme Court granted the petition for certiorari,
vacated the state habeas court ruling and remanded the case to the state habeas
court for further proceedings in accordance with its opinion. Sears v. Upton,
561 U.S. 945, 956 (2010). In view of the Supreme Court’s order, and with the
agreement of the parties, the Court stayed further proceedings in this case to allow
1
In support of his appeal to the Georgia Supreme Court, Petitioner filed his
“Brief of Appellate and Enumeration of Errors on Direct Appeal” [16.22-16.24]
(the “Appellate Brief”).
2
In support of his state habeas proceeding, Petitioner filed his “Amended
Petition for Writ of Habeas Corpus” [18.21-18.22] (the “State Habeas Petition”),
and his “Post-Hearing Brief” [21.8-21.9] (“the “Post-Hearing Brief”). The state
habeas court’s January 9, 2008, order denying Petitioner’s State Habeas Petition is
docketed at [21.12] (the “State Habeas Court Order”).
2
Petitioner to fully exhaust his state court remedies. (August 20, 2010, Order [9]
at 1).
In the state court habeas proceedings following remand, the Georgia courts
again denied Petitioner state habeas corpus relief,3 and Petitioner’s federal habeas
claims are now before the Court for review.4 See Humphrey, 751 S.E.2d at 365.
On August 4, 2014, Petitioner filed his Amended Petition for Writ of Habeas
Corpus [28] (the “Amended Petition”), in which he asserts fifteen (15) claims,
many with subparts. Petitioner’s habeas relief claims include:
Claim I - ineffective assistance of counsel at trial and on appeal;
Claim V - prosecutorial misconduct denied Petitioner’s Due Process rights
and right to a fair trial;
Claim VII - the trial court’s instructions to the jury violated Petitioner’s
rights to Due Process, a fair trial and a reliable determination of punishment;
3
In support of his state habeas proceeding on remand, Petitioner filed his
“Brief in Support of Writ of Habeas Corpus on Remand” [21.25-21.27]
(“Post-Remand Brief”) and his “Reply Brief in Support of Writ of Habeas Corpus
on Remand” [21.32] (“Post-Remand Reply”). The state habeas court’s
August 16, 2011, order denying Petitioner’s State Habeas Petition on remand is
docketed at [21.36] (“Order on Remand”).
4
On June 24, 2014, the Court entered its Scheduling Order [26], allowing
Petitioner until August 4, 2014, to file any amendments to his Petition.
(Scheduling Order ¶ 1). The Court ordered Respondent to file his answer no later
than thirty (30) days after Petitioner filed an amended petition, and to file his
Assertion of Procedural Defenses no later than thirty (30) days after Respondent
filed his answer. (Id. ¶ 2).
3
Claim IX - the trial court wrongfully excused, for cause, jurors whose views
on the death penalty did not justify removal;
Claim XI - Petitioner’s sentence was disproportionate and excessive in
violation of the Eighth Amendment;
Claim XIII5 - the 24-year delay between Petitioner’s sentencing and the
imposition of his death sentence violates the Eighth Amendment; and
Claim XV - lethal injection violates Petitioner’s Eighth Amendment rights.
(See generally Am. Pet.).6
On October 3, 2014, Respondent filed his Brief. Respondent argues that
Petitioner has procedurally defaulted Claims I, V, VII, IX, and XI, and that Claims
XI, XIII, and XV are not cognizable on federal habeas review. (Id. at 15-34).
5
This claim, the twelfth in the Amended Petition, is mislabeled as Claim XIII.
There is no Claim XII. The Court refers to Petitioner’s claims using the claim
number identified in the Amended Petition (e.g., Claim XIII), which is consistent
with the parties’ submissions.
6
Petitioner asserts the following additional claims that are not at issue in
Respondent’s Brief: the rule of Sabel v. State is unconstitutional and application of
it denied Petitioner his rights to Equal Protection, Due Process, and effective
assistance of counsel (Claim II); juror misconduct resulting in violation of
Petitioner’s Due Process right and right to a fair trial (Claim III); trial court errors
resulting in the denial of Petitioner’s constitutional rights (Claim IV); failure of the
trial judge to recuse himself despite personal relationship with the victim denied
Petitioner’s right to Due Process and a fair trial (Claim VI); the District Attorney
unconstitutionally excused jurors on the basis of race (Claim VIII); the trial court
failed to remove jurors for cause or bias (Claim X); the use of aggravating
circumstances without notice violated Petitioner’s right to Due Process (Claim
XIV); and the procedural and substantive errors at trial were not, in the aggregate,
harmless and they deprived Petitioner of his right to a fair trial (Claim XVI).
4
II.
DISCUSSION
Respondent argues that the state court found all, or at least some, of Claims
V, IX, and XI to be procedurally defaulted, and that the Court also should find
these claims procedurally defaulted.
Respondent next argues that the state court found certain of the subclaims in
Claim I to have been abandoned, that the Court should consider this to be a state
court finding of procedural default, and deny the claims.
Respondent also argues that Petitioner failed to exhaust Claims I, V, VII,
and XI and that these claims are procedurally defaulted.
Finally, Respondent argues that all, or a subset, of Claims XI, XIII, and XV
are not cognizable federal habeas claims, and should be dismissed. The Court
considers each of these arguments in turn.
A.
Procedural Default
A claim presented in a federal habeas corpus petition generally is barred if
the claim is procedurally defaulted. Procedural default can arise in two ways:
First, where the state court correctly applies a procedural default
principle of state law to arrive at the conclusion that the petitioner’s
federal claims are barred, Sykes[7] requires the federal court to respect
the state court’s decision. Second, if the petitioner simply never
raised a claim in state court, and it is obvious that the unexhausted
claim would now be procedurally barred due to a state-law procedural
7
Wainwright v. Sykes, 433 U.S. 72 (1977).
5
default, the federal court may foreclose the petitioner’s filing in state
court; the exhaustion requirement and procedural default principles
combine to mandate dismissal.
Bailey v. Nagle, 172 F.3d 1299, 1302-03 (11th Cir. 1999).
1.
State Law Procedural Default
“[A] state court’s rejection of a federal constitutional claim on procedural
grounds will only preclude federal review if the state procedural ruling rests upon
[an] ‘independent and adequate’ state ground.” Judd v. Haley, 250 F.3d 1308,
1313 (11th Cir. 2001) (citing Coleman v. Thompson, 501 U.S. 722, 729-30
(1991)). The Eleventh Circuit has “established a three-part test . . . 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.’” Id. at 1157 (quoting
Judd, 250 F.3d at 1313). When a state court is silent on its reasoning why it has
6
rejected a particular claim, this Court may presume that the rejection rested upon a
procedural default only where “the last reasoned opinion on the claim explicitly
imposes a procedural default” based on state law grounds. Ylst v. Nunnemaker,
501 U.S. 797, 803 (1991). “The Sykes’ procedural default rule does not preclude
federal habeas review of a petitioner’s constitutional claims if the state court
declines to apply a procedural bar and adjudicates the federal claims on the
merits.” Hardin v. Black, 845 F.2d 953, 958 (11th Cir. 1988).
2.
Failure to Exhaust
“An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted unless it appears
that . . . the applicant has exhausted the remedies available in the courts of the
State.” 28 U.S.C. § 2254(b)(1)(A). A state habeas corpus petitioner who fails to
exhaust his federal claims properly in state court is “procedurally barred from
pursuing the same claim in federal court . . . .” Bailey, 172 F.3d at 1302.
“To satisfy the exhaustion requirement, petitioners [must] present their
claims to the state courts such that the reasonable reader would understand each
claim’s particular legal basis and specific factual foundation.” Hunt v. Comm’r,
Ala. Dep’t of Corr., 666 F.3d 708, 730 (11th Cir. 2012) (internal quotations
omitted). “[A] petitioner cannot ‘scatter some makeshift needles in the haystack of
7
the state court record. The ground relied upon must be presented face-up and
squarely; the federal question must be plainly defined. Oblique references which
hint that a theory may be lurking in the woodwork will not turn the trick.’”
French v. Warden, Wilcox State Prison, 790 F.3d 1259, 1271 (11th Cir. 2015)
(quoting Kelley v. Sec’y for Dep’t of Corr., 377 F.3d 1317, 1345 (11th Cir. 2004)).
It is not sufficient that the federal habeas petitioner went through the state court
habeas process or that all the facts necessary to support the claim were before the
state courts or that a petitioner asserted a somewhat similar state-law habeas claim.
Kelley, 377 F.3d at 1343-44 (internal citations and quotations omitted). “The
petitioner must present his claims to the state courts such that they are permitted
the opportunity to apply controlling legal principles to the facts bearing upon (his)
constitutional claim.” Id. at 1344 (internal quotations omitted).
If a defendant raises a claim in state court for the first time during his state
habeas proceeding, the state court petition must “clearly set forth the respects in
which the petitioner’s rights were violated . . . .” O.C.G.A. § 9-14-44. A “brief
may be submitted in support of the petition setting forth any applicable argument”
on the claims asserted in the petition. Id. Raising a claim for the first time in a
brief in support of a habeas petition is not sufficient to properly present it to the
habeas court. See Murrell v. Young, 674 S.E.2d 890, 892 n.2 (2009); see also
8
O.C.G.A. § 9-14-51 (“All grounds for relief claimed by a [habeas]
petitioner . . . shall be raised . . . in his original or amended petition.”). However,
where a state habeas court considers the claim on the merits, despite it being
improperly raised, the claim is exhausted and the federal court must address the
claim on the merits. See Hardin, 845 F.2d at 958 (11th Cir. 1988).
3.
Cause and Prejudice
If a federal habeas petitioner has procedurally defaulted on a claim on an
independent and adequate state procedural rule or failure to exhaust grounds, he
“can escape the procedural default doctrine either through showing cause for the
default and prejudice, or establishing a fundamental miscarriage of justice.”
Bailey, 172 F.3d at 1306 (internal quotations and citation omitted). “Cause 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)). This
can include “evidence that could not reasonably have been discovered in time to
comply with the rule; interference by state officials that made compliance
impossible; and ineffective assistance of counsel at a stage where the petitioner had
a right to counsel.” Id.
9
“In addition to cause, the petitioner must also show prejudice: that ‘there is
at least a reasonable probability that the result of the proceeding would have been
different’ had the constitutional violation not occurred.” Id. (quoting
Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir. 2003)). Absent cause and
prejudice, a procedural default of a claim may be “excused if enforcing the default
would result in a fundamental miscarriage of justice.” Id. “This exception applies
if the petitioner can show that, in light of new evidence, it is probable that no
reasonable juror would have convicted him.” Id. “By making this showing of
actual innocence, the petitioner may overcome the procedural default and obtain
federal review of the constitutional claim.” Id.
Whether a claim has been procedurally defaulted under either ground “is a
mixed question of law and fact . . . .” Bailey, 172 F.3d at 1302;
Hansbrough v. Latta, 11 F.3d 143, 145 (11th Cir. 1994).
B.
Analysis
1.
Claims Found By The State Habeas Court To Be Procedurally
Defaulted
The state habeas court found several of Petitioner’s claims were
procedurally defaulted, including:
Count V - prosecutorial misconduct because the prosecutor
improperly:
10
(a) suppressed material impeachment information regarding
Phillip Williams in violation of Brady v. Maryland;
(b) presented, in violation of Giglio v. United States, Williams’
false testimony regarding circumstances of Petitioner’s alleged
crime;
(c) argued during his closing argument on sentencing that the
jurors should punish Petitioner for rape;
(d) injected his own view of the evidence and vouched for the
strength of the State’s case in the guilt-innocence and
sentencing phase closing arguments;
(e) denigrated the jurors’ right to exercise mercy in the
sentencing phase closing argument;
Claim IX - the trial court erred by improperly intervening in voir dire
by disqualifying five prospective jurors because of their views on the
death penalty; and
Claim XI - Petitioner’s Eighth Amendment rights were violated
because Petitioner’s cognitive and emotional impairments made him
the equivalent of a juvenile offender, and the imposition of the death
penalty was disproportionately severe when other juvenile offender
sentences are considered.
(State Habeas Court Order 8-10, 12, 17-18).
Petitioner argues that the state habeas court incorrectly found that he
procedurally defaulted on his claims in Claim V based on the prosecutor’s closing
arguments, and in Claim IX. Although Petitioner concedes that he procedurally
11
defaulted on his claims in Claim V based on violation of Brady and Giglio,
Petitioner argues that cause and prejudice exist to excuse the procedural default.8
a)
State Habeas Court Finding of Procedural Default
(1)
Claim V - Prosecutorial Misconduct Based on
Sentencing Phase Closing Argument that the
Jurors Should Punish Petitioner for Rape
Petitioner argues that he did not procedurally default on this claim because
he asserted, in his Appellate Brief on direct appeal, that the prosecution “exhorted
the jury to convict [Petitioner] in order to punish him for rape, a crime for which he
was not on trial.” (Pet.’s Br. in Resp. [35] (the “Response”) at 25). Respondent
argues that Petitioner’s “rape argument” claim on direct appeal was based only on
the prosecutor’s guilt-innocence phase closing argument, and Petitioner did not
assert a claim based on the prosecutor’s sentencing phase closing argument.
(Reply at 24-25). As a result, the state habeas court finding that this claim was
procedurally defaulted was proper. (Id.). The Court agrees.
Petitioner, in his State Habeas Petition, asserted a “rape argument” claim
only in relation to the guilt-innocence phase closing argument at trial.
(State Habeas Petition at 72, 76). The state habeas court noted that Petitioner’s
8
Petitioner concedes he procedurally defaulted on his claim that the
prosecutor’s closing argument at sentencing denigrated the jurors’ right to exercise
mercy, and he does not argue that cause and prejudice exist to excuse the
procedural default. (Resp. at 25). This claim is dismissed.
12
guilt-innocence phase rape argument claim was addressed on direct appeal by the
Georgia Supreme Court, and denied. (State Habeas Court Order at 12).9 The state
habeas court went on to hold that, to the extent Petitioner’s “rape argument” claim
was not addressed by the Georgia Supreme Court on direct appeal, it was
procedurally defaulted. (Id.). Because Petitioner’s sentencing phase rape
argument was not addressed by the Georgia Supreme Court on direct appeal, the
state habeas court properly found the claim was procedurally defaulted, and this
claim is procedurally defaulted in this federal habeas action, and dismissed.
See Bailey, 172 F.3d at 1302.10
(2) Claim V - Prosecutorial Misconduct Because
Prosecutor Improperly Injected His Own View of the
Evidence and Vouched for the Strength of the State’s
Case in Guilt-Innocence and Sentencing Phase Closing
Arguments
Petitioner argued, in his Appellate Brief on direct appeal, that the
“prosecutor injected personal opinion into his closing argument when he stated his
belief that the only purpose of brass knuckles is to attack and cause dangerous
9
Petitioner’s federal habeas claim regarding the prosecutor’s rape argument
addresses closing arguments at both phases of trial. Respondent does not argue,
and the Court does not find, that Petitioner procedurally defaulted on this claim as
it relates to the prosecutor’s closing argument during the guilt-innocence phase.
10
While not argued by Respondent, Petitioner failed to exhaust his sentencing
phase rape argument by failing to raise this claim on direct appeal and in his state
habeas proceeding. (Appellate Br. at 178-79; State Habeas Petition at 72, 76,
80-83); See Bailey, 172 F.3d at 1302.
13
injury.” (Appellate Br. at 197-98) The expression of this personal opinion,
Petitioner claims, was improper. A review of the state appeal record shows that,
other than this discussion about brass knuckles, Petitioner did not claim that the
prosecutor injected his view on any other matter.
The state habeas court found that Petitioner’s “brass knuckles argument”
was denied on the merits on direct appeal by the state appellate court.
(State Habeas Court Order at 9). The state habeas court held that any other claim
Petitioner asserts based on the prosecutor expressing his personal opinion about the
merits of the evidence was not presented to or addressed by the Georgia Supreme
Court, and thus is procedurally defaulted. (Id.).
Petitioner does not state in the Amended Petition what specific comments
and personal viewpoints he contends were improperly argued to the jury at trial.
His record references suggest that he may seek to present, to this Court, more than
just the prosecutor’s brass knuckles comment. If Petitioner intends to assert claims
based on more than just the brass knuckles comment, the state habeas court
properly found the claims unrelated to the brass knuckles comment are
procedurally defaulted because they were not presented to, or considered by, the
Georgia Supreme Court on direct appeal. (Id.); see also Bailey, 172 F.3d at 1302.
14
These state law procedurally defaulted claims are procedurally defaulted in this
federal habeas action, and dismissed.
(3)
Claim IX – The Trial Court Improperly Intervened
in Voir Dire and Agreed to Disqualify Five
Prospective Jurors Based on their Views on the
Death Penalty
In Witherspoon v. Illinois, the Supreme Court held that jurors cannot be
excluded “simply because they voiced general objections to the death penalty or
expressed conscientious or religious scruples against its infliction.”
Witherspoon v. Illinois, 391 U.S. 510, 522 (1968); see also Randolph v. McNeil,
590 F.3d 1273, 1276 (11th Cir. 2009). The state habeas court characterized
Petitioner’s Witherspoon claim in his State Habeas Petition as follows:
“[Petitioner claims] the trial court violated Petitioner’s constitutional rights by
excusing for cause unspecified jurors whose views on the death penalty were not
extreme enough to warrant exclusion under Witherspoon . . . .” (State Habeas
Court Order at 8).
Petitioner’s “death-qualification” claim raised on direct appeal was not a
Witherspoon-based claim. Petitioner, on direct appeal, asserted only that Georgia
did not have jurisdiction to prosecute his case as a death penalty case and thus it
was improper to question jurors based on their views on the death penalty, because
questioning jurors about their death penalty views resulted in a jury more likely to
15
convict Petitioner of the crimes for which he was indicted. (Appellate Br. at
137-40). Petitioner argued only that five jurors were questioned about “their
feelings about the death penalty and excused . . . for cause.” (Id. at 137).
Petitioner did not assert that the jurors’ for-cause excusal was improper under
Witherspoon.11
The Georgia Supreme Court addressed only Petitioner’s claim that
qualifying jurors on the death penalty was improper, concluding that, because “the
state had authority to seek the death penalty, it was proper to qualify the jurors
concerning the death penalty.” Sears v. State, 493 S.E.2d 180, 185 (Ga. 1997).
The Georgia Supreme Court did not address a claim that excusal of these jurors
violated Witherspoon. The Witherspoon-based claim raised in this federal habeas
case, and in Petitioner’s State Habeas Petition, was not considered on direct appeal
because Petitioner did not present it to the Georgia Supreme Court.
In discussing Petitioner’s “death qualification” claim, the state habeas court
stated:
To the extent this claim . . . was not addressed by the Georgia
Supreme Court on direct appeal, this claim is procedurally defaulted
and may not be addressed on its merits in this proceeding absent a
11
On direct appeal, Petitioner cited Witherspoon only to support that
death-qualification of juries is permitted in capital cases. (Id. at 137-38). He did
not assert that the jurors in his case were excluded because of general objections to
the death penalty or “conscientious or religious scruples against its infliction.”
16
showing of cause and actual prejudice or of a miscarriage of justice to
overcome the procedural default.
(State Habeas Court Order at 8). Because Petitioner did not raise his
Witherspoon-based claim on direct appeal, the state habeas court properly found
the claim was procedurally defaulted, and this claim is procedurally defaulted in
this federal habeas action. See Bailey, 172 F.3d at 1302. Petitioner also does not
argue that cause and prejudice exist to excuse this default. For these reasons, the
Court concludes that the state habeas court properly concluded that Petitioner’s
Witherspoon claim is procedurally defaulted and is procedurally defaulted in this
federal habeas action, and dismissed. See id. at 1302-03.12
b)
Cause and Prejudice to Excuse Procedural Default
Petitioner concedes that he procedurally defaulted on three claims:
Claim V - prosecutorial misconduct because the prosecutor
improperly suppressed material impeachment information about
Williams, in violation of Brady v. Maryland;
12
The state habeas court, in discussing the Witherspoon claim raised in
Petitioner’s State Habeas Petition, stated that this claim “was addressed and
decided adversely to Petitioner on direct appeal.” (State Habeas Court Order at 8)
(citing Sears, 268 Ga. at 763(7)). The state habeas court appears to have conflated,
to an extent, Petitioner’s Witherspoon claim raised in his State Habeas Petition
with his claim on direct appeal that death qualification of the jury was improper
because his case should not have been a capital case. Because Petitioner did not
assert his Witherspoon claim on direct appeal, the state habeas court’s finding that
any claim not addressed on direct appeal, applies.
17
Claim V - prosecutorial misconduct because the prosecutor
improperly presented Williams’ false testimony regarding the crime’s
circumstances, in violation of Giglio v. United States; and
Claim XI - Petitioner’s Eighth Amendment rights were violated
because his cognitive and emotional impairments make him the legal
equivalent of a juvenile offender, rendering the death penalty
disproportionately severe.13
(Resp. 15-24, 27). Petitioner argues, however, there is cause for the procedural
default of these claims, and that he will suffer prejudice if the Court does not
excuse it.
“Cause 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, 532 F.3d at 1190 (quoting Murray, 477 U.S. at 488). “[A] showing that the
factual or legal basis for a claim was not reasonably available to counsel” can
constitute “cause.” Coleman, 501 U.S. at 753 (quoting Murray, 477 U.S. at 488).
13
Petitioner concedes he first asserted this claim in his state habeas petition but
argues that his claim was timely under Georgia law because the factual and legal
basis for it was not available during his direct appeal and, thus, he did not
procedurally default on this claim. (Resp. at 27) (citing Turpin v. Christenson,
497 S.E.2d 216, 221 (Ga. 1998)). In Turpin, the factual and legal basis for an
underlying habeas claim was not available to counsel at an earlier stage, and the
question for the court was whether this constituted “cause” that might justify
excusing the default. Turpin, 497 S.E.2d at 221. Turpin does not state that the
inability to raise the claim at an earlier proceeding means that no procedural
default occurred. By conceding that that he did not raise this claim until his state
habeas proceeding, Petitioner has acknowledging his procedural default of this
claim.
18
“In addition to cause, the petitioner must also show prejudice: that ‘there is at least
a reasonable probability that the result of the proceeding would have been
different’ had the constitutional violation not occurred.” Mize, 532 F.3d at 1190
(quoting Henderson, 353 F.3d at 892). The Eleventh Circuit has held that a
“reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Lynd v. Terry, 470 F.3d 1308, 1315-16 (11th Cir. 2006). If cause and
prejudice are not present, a procedural default of a claim also may be “excused if
enforcing the default would result in a fundamental miscarriage of justice.” Id.
(1)
Claim V - Prosecutorial Misconduct Because
Prosecutor Suppressed Information Regarding
Williams in Violation of Brady v. Maryland
In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held “that the
suppression by the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at
87. This “duty to disclose such evidence is applicable even though there has been
no request by the accused,” and includes “impeachment evidence as well as
exculpatory evidence.” Strickler v. Greene, 527 U.S. 263, 280 (1999). “Such
evidence is material if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different.”
19
Id. (internal quotations omitted). “In order to comply with Brady, therefore, the
individual prosecutor has a duty to learn of any favorable evidence known to the
others acting on the government’s behalf in this case, including the police.” Id. at
281 (citing Kyles v. Whitley, 514 U.S. 419. 437 (1995)). “There are three
components of a true Brady violation: The evidence at issue must be favorable to
the accused, either because it is exculpatory, or because it is impeaching; that
evidence must have been suppressed by the State, either willfully or inadvertently;
and prejudice must have ensued.” Id. at 281-82.
Petitioner claims Williams was the prosecutor’s primary witness against
him. (Am. Pet. at 86). He also claims the prosecution knew, but did not disclose,
that Williams had been convicted of battery for a premeditated assault he
committed at the Cobb County Adult Detention Center. (Id.). Petitioner argues
that despite repeated requests for Williams’ criminal history, the prosecution failed
to disclose Williams’ battery conviction and did not provide Williams’ criminal
records. (Id.). Petitioner argues that the prosecution’s case was largely based on
Williams’ testimony that Petitioner instigated the kidnapping of which he was
convicted, and the evidence regarding Williams’ battery conviction was material
and was required, under Brady, to be disclosed. (Id. at 87).
20
In his State Habeas Petition, Petitioner asserted that the prosecution provided
his counsel with certain records about Williams, but these records did not contain
meaningful evidence concerning Williams’ veracity, prior bad acts, or his
propensity to commit battery. (State Habeas Petition at 13-14). The state habeas
court found this claim to be procedurally defaulted because it was not raised on
direct appeal. (State Habeas Court Order at 17). Petitioner concedes that this
argument was not raised on direct appeal, but argues that cause and prejudice exist
to excuse the state habeas court’s procedural default finding. (Am. Pet. at 93;
Resp. at 15-22).
In this case, the prosecution took an “open file” approach to discovery by
providing Petitioner access to the prosecution’s case file. It is not disputed that
documents concerning Williams’ 1991 guilty plea and conviction for the
premeditated assault were not in the file when Petitioner’s defense counsel
reviewed it in 1993. (Am. Pet. at 89). It is also undisputed that the office that
prosecuted Petitioner also prosecuted Williams on his battery charge and that the
office had Williams’ criminal record from the 1991 prosecution. Neither the
prosecutor, nor his office, which possessed this information about Williams’
battery conviction, produced it to Petitioner’s trial counsel.
21
On similar facts, the Supreme Court, in Strickler, found that a petitioner
established cause to excuse the default of a Brady claim where:
(a) the prosecution withheld exculpatory evidence; (b) petitioner
reasonably relied on the prosecution’s open file policy as fulfilling the
prosecution’s duty to disclose such evidence; and (c) the
Commonwealth confirmed petitioner’s reliance on the open file policy
by asserting during state habeas proceedings that petitioner had
already received everything known to the government.
Strickler, 527 U.S. at 289 (internal quotations omitted). Like Strickler, the
prosecutor’s office had an open file policy but also possessed evidence regarding
Williams’ battery conviction which was not produced. Petitioner relied on the
prosecution’s open file policy to fulfill the prosecutor’s Brady obligations,
including to produce all adverse information about Williams. (Tr. of
Dec. 13, 1991, proceeding before Superior Court Judge G. Grant Brantley [14.20]
at 9-10). The prosecution knew Petitioner relied on its open file policy. (See id.
(granting Petitioner’s motion to disclose exculpatory evidence, and noting that the
prosecution stated it was complying on its own and would provide its entire file,
and that this obligation would be continuing in nature)). The Supreme Court, in
another open file case, stated that its “decisions lend no support to the notion that
defendants must scavenge for hints of undisclosed Brady material when the
prosecution represents that all such material has been disclosed.” Banks v. Dretke,
22
540 U.S. 668, 695 (2004). The Court finds that Petitioner established cause for the
procedural default of his Brady claim.
The question is whether Petitioner can show that “there is at least a
reasonable probability that the result of the proceeding would have been different
had the constitutional violation not occurred.” See Mize, 532 F.3d at 1190
(internal quotations omitted). That is, whether there “is a probability sufficient to
undermine confidence in the outcome.” Lynd, 470 F.3d at 1315-16. Williams’
criminal records from his 1991 conviction, if they had been provided to Petitioner,
may have allowed Petitioner to undermine Williams’ testimony that Petitioner
initiated the kidnapping. Williams’ testimony was central to the prosecutor’s case
that the kidnapping was initiated by Petitioner. That Williams conceived of and
orchestrated the attacks on the victim may well have impacted the jury’s view
whether Williams initiated the kidnapping and, if so, whether the death penalty
was the appropriate sentence for Petitioner. It may also have discredited Major
Jim Burns’ testimony that Petitioner, rather than Williams, was the worst inmate at
the Cobb County Adult Detention Center, where Williams committed a
premeditated assault at the detention facility. (See Section II(B)(3)(f)(3)). The
fact is that Williams’ criminal record had a probability sufficient to undermine
23
confidence in the outcome of the guilt-innocence, sentencing, or both, phases of
Petitioner’s trial.
Petitioner has established both cause and prejudice to excuse his procedural
default of his Brady claim based on the failure to disclose evidence regarding
Williams’ battery conviction.
(2)
Claim V - Prosecutorial Misconduct Because
Prosecutor Violated Giglio v. United States When
the Prosecutor Presented Williams’ False
Testimony
Petitioner argues that Williams falsely testified about who initially assaulted
the victim, and who initiated the kidnapping and that “cause” exists because the
prosecution concealed that Williams initiated the kidnapping and assault on the
victim. (Resp. at 23-24). Petitioner has not presented any evidence, other than his
unsupported argument, that Williams’ testimony was false, or, even if it was, that
the prosecutor knew it was false but allowed it to be presented to the jury. See
Giglio, 405 U.S. at 153. Petitioner fails to show that the prosecutor engaged in
Giglio-based misconduct and thus cannot establish cause to excuse the procedural
default of this claim. See Coleman, 501 U.S. at 753. This claim is dismissed. See
Bailey, 172 F.3d at 1306.
24
(3)
Claim XI – Eighth Amendment Violation Because
Petitioner’s Cognitive and Emotional Impairments
Render Him the Legal Equivalent of a Juvenile
Offender
The state habeas court considered Petitioner’s state habeas claim that his
disabilities and mental illnesses make him the functional “equivalent of a person
who is mentally retarded.” (Id.). It held that the claim was not raised by Petitioner
at trial or on direct appeal and, thus, was procedurally defaulted. (State Habeas
Court Order at 17-18).
Petitioner relies on cases decided by the Supreme Court after his direct
appeal became final to support that the factual and legal bases for his claim arose
after his direct appeal became final. For the purpose of the cause analysis required
here, the Court assumes the post-direct appeal authority might satisfy the cause
prong. The Court considers the prejudice requirement.
Petitioner’s Eighth Amendment violation claim is based on the Supreme
Court’s holdings in Atkins v. Virginia, 536 U.S. 304 (2002) and Roper
v. Simmons, 543 U.S. 551 (2005). In Atkins, the Supreme Court considered
whether the execution of a “mentally retarded[14] criminal” violates the Eighth
Amendment, an issue the Supreme Court first considered in Penry v. Lynaugh,
492 U.S. 302 (1989). In Penry, the Supreme Court concluded that while “mental
14
This is the characterization used by the courts in this genre of cases.
25
retardation is a factor that may well lessen a defendant’s culpability for a capital
offense[, we] cannot conclude today that the Eighth Amendment precludes the
execution of any mentally retarded person of Penry’s ability convicted of a capital
offense simply by virtue of his or her mental retardation alone.” Penry, 492 U.S. at
340. The Supreme Court noted: “[w]hile a national consensus against execution of
the mentally retarded may someday emerge reflecting the ‘evolving standards of
decency that mark the progress of a maturing society,’ there is insufficient
evidence of such a consensus today. Id.
In Atkins, the Supreme Court again considered this Eighth Amendment
issue. The Supreme Court found that the Eighth Amendment prohibits excessive
sanctions, and that the excessive sanctions standard “draw[s] its meaning from the
evolving standards of decency that mark the progress of a maturing society.”
Atkins, 536 U.S. at 311-12. The Atkins court observed that after Penry, the federal
government and numerous state legislatures had prohibited the execution of
mentally retarded criminals. Id. at 314-15. That a large number of states had
prohibited the execution of mentally retarded persons, the Atkins court found,
“provides powerful evidence that today our society views mentally retarded
offenders as categorically less culpable than the average criminal.” Id. at 316. The
Supreme Court concluded that the execution of mentally retarded criminals does
26
not “measurably advance the deterrent or the retributive purpose of the death
penalty,” and that mentally retarded criminals face a higher risk of receiving a
disproportionately harsh penalty because the risk of false confessions is higher, and
because they may be less able to give their counsel meaningful assistance. Id. at
318-21. “Construing and applying the Eighth Amendment in the light of [the]
‘evolving standards of decency,’” the Supreme Court concluded that the execution
of mentally retarded criminals is an excessive sanction that violates the Eighth
Amendment. Id. at 321.
In 1989, Supreme Court decided Stanford v. Kentucky, 492 U.S. 361 (1989).
In Stanford, the Supreme Court considered whether the Eighth Amendment barred
the execution of juvenile offenders over the age of fifteen but under the age of
eighteen. The Stanford court found that the majority of states that permit capital
punishment authorize it for sixteen and seventeen-year-old offenders. Stanford,
492 U.S. at 370. Because a majority of the states permitted the execution of
sixteen and seventeen-year-old offenders, the Stanford court could not conclude
that a there was a national consensus sufficient to label the practice of executing
juvenile offenders as “cruel and unusual.” Id. at 370-71.
In 2005, the Supreme Court, in Roper, revisited whether executing offenders
who were under the age of eighteen when they committed their offense violates the
27
Eighth Amendment. Christopher Simmons, the defendant in Roper, was seventeen
years old when he committed the murder at issue in that case. Roper, 543 U.S. at
556. Nine months later, after he turned eighteen, Simmons was tried as an adult,
convicted of murder, and sentenced to death. Id. Simmons unsuccessfully sought
post-conviction relief in state and federal court to overturn his conviction and
sentence. Id. at 559. Simmons filed a new petition for state post-conviction relief
after Atkins was decided. Id. He argued that the reasoning in Atkins also applies
to juveniles. Id. The Missouri Supreme Court agreed, and set aside Simmons’
death sentence. Id. at 559-60. The state appealed.
In the appeal, the Supreme Court found thirty states then prohibited the
execution of juvenile offenders. Id. at 564. Twelve of these did not have the death
penalty and the eighteen that did prohibited execution of juveniles. Id. The
Supreme Court found further that after 1989, the year Stanford was decided, five
states that allowed the juvenile death penalty had abandoned it. Id. at 565. In the
twenty states that allow juvenile executions, the practice was infrequent, with only
six states executing prisoners for crimes committed as juveniles after Stanford. Id.
at 564. The Supreme Court concluded that the Eighth Amendment barred the
execution of defendants who were juveniles when they committed the offense for
28
which the death penalty was imposed. The Supreme Court stated:
the rejection of the juvenile death penalty in the majority of States; the
infrequency of its use even where it remains on the books; and the
consistency in the trend toward abolition of the practice—provide
sufficient evidence that today our society views juveniles, in the
words Atkins used respecting the mentally retarded, as “categorically
less culpable than the average criminal.”
Roper, 543 U.S. at 567 (quoting Atkins, 536 U.S. at 316).
Petitioner was not a juvenile when he committed the kidnapping with bodily
injury that resulted in his death sentence, and Petitioner does not argue that he is
“mentally retarded” or that Atkins directly applies. Petitioner instead argues that
his disabilities and mental illnesses when he, as an adult, committed the offenses
for which he was convicted, render him the functional and legal equivalent of an
“offender whose culpability is limited by mental retardation or youth, and as such
his execution would violate” the Eighth Amendment. (Am. Pet. at 118). To show
prejudice, Petitioner offers only that “there is a reasonable likelihood that
[Petitioner] would succeed on the merits of his claim . . . .” (Resp. at 30).
Petitioner does not provide any support, such as an emerging consensus
among the states regarding withholding the death penalty for adults who are the
“equivalent” of a mentally retarded person or a juvenile, to show it would violate
the Eighth Amendment to execute a defendant who is the “equivalent” of a
mentally retarded person or a juvenile. Petitioner’s argument essentially asks the
29
Court to extend Atkins and Roper to apply to him. The Eleventh Circuit, in
Carroll v. Sec’y for Dep’t of Corr., 574 F.3d 1354 (11th Cir. 2009), addressed this
issue, finding that the extension of Atkins, as argued by Petitioner here, “would
constitute a new rule of constitutional law.” See Carroll, 574 F.3d 1354 (citing
Spaziano v. Singletary, 36 F.3d 1028, 1042 (11th Cir. 1994) (“Even if the result the
habeas petitioner seeks is within the logical compass of a prior Supreme Court
decision; even if prior Supreme Court decisions inform, or even control or govern,
the analysis of the claim; it is still a new rule claim unless the rule is actually
dictated by pre-existing precedent.”) (internal citations omitted)).
The Court, in the absence of authority to support Petitioner’s requested
extension of Atkins and Roper, and in the absence of any evidence that there is an
emerging consensus among the states that executions of adults who are the
functional equivalent of mentally retarded persons or juvenile offenders should be
prohibited, does not conclude that any constitutional violation occurred here. See
Mize, 532 F.3d at 1190. Petitioner cannot show that he suffered prejudice to
excuse procedural default of this claim, and this claim is dismissed. See Bailey,
172 F.3d at 1306.
30
2.
Claims Found by the State Habeas Court to be Abandoned
Respondent argues the state habeas court found that Petitioner abandoned
certain of his ineffective assistance of counsel claims (the “Abandoned Claims”),
including that his counsel was ineffective when he:
(1) labored under an undisclosed, unwaived conflict of interest,
(2) failed to investigate adequately the case facts, the crime and bad
acts, bad character and bad reputation evidence introduced by the
prosecution, and uncharged offenses presented by the prosecution;
(3) failed to seek and conduct adequate testing of evidence the
prosecution relied upon at trial, and failed to seek funds for numerous
potential expert defense witnesses, including an independent crime
scene expert and independent pathologist to challenge the State’s
findings;
(4) failed to develop mental health evidence of Petitioner, whose
capacity was diminished at the time of the offense and who was
incompetent to stand trial;
(5) conducted inadequate voir dire;
(6) failed to assert, argue and preserve challenges to the prosecution’s
conduct during voir dire, including its improper, erroneous factual
assertions, legal assertions, or arguments before the venire generally
or individually, its taint of venire members by misconduct engaged in
their presence, and its unlawful and unconstitutional exercise of
peremptory challenges;
(7) failed to object properly and preserve issues during voir dire,
including the trial judge’s restrictive manner of conducting voir dire,
the trial court’s refusal to allow questioning of certain members of the
venire and to allow certain questions of some and all members of the
venire, the prosecution’s unlawful use of peremptory challenges in
violation of Batson v. Kentucky, 476 U.S. 79 (1986), the trial court’s
31
dismissal of venire members without adequate legal justification, and
the trial court’s unlawful reliance upon in camera, ex parte
proceedings to conduct portions of voir dire;
(8) failed to object to testimony throughout pretrial, trial, and
post-trial proceedings;
(9) failed to object to the prosecution’s questions regarding
Petitioner’s reputation for truthfulness and veracity though Petitioner
did not testify at trial;
(10) failed to object to, argue, and preserve legal issues throughout the
proceedings;
(11) failed to cross-examine and impeach properly and effectively the
State’s witnesses, particularly co-defendant Phillip Williams;
(12) failed to provide Petitioner advice, or adequate advice and
counsel, regarding a possible plea;
(13) failed to raise and preserve meritorious issues for appeal and for
litigation in post-conviction proceedings, including the impact of
Sabel v. State, 248 Ga. 10, 282 S.E.2d 61 (Ga. 1981);
(14) failed to object to erroneous, unlawful, and burden-shifting jury
instructions;
(15) failed to research and understand relevant law and legal
principles governing pretrial, trial, and post-trial proceedings;
(16) failed to preserve objections to evidence, arguments, instructions,
court rulings, and prejudicial occurrences throughout pretrial, trial,
and post-trial proceedings;
(17) failed to make proper opening and closing statements, failed to
respond to prejudicial, unlawful arguments by the prosecution, failed
to address material factual and legal misstatements relied upon by the
prosecution, and failed to raise affirmatively helpful facts or
arguments;
32
(18) failed to raise various issues and claims at motion for new trial
and on direct appeal;
(19) failed to investigate facts and issues counsel were, or should have
been, on notice for presentation at motion for new trial, which failure
may have waived Petitioner’s right to present and litigate those issues
on appeal or in habeas proceedings;
(20) failed to argue appropriate state and federal law, constitutional,
statutory, or otherwise, in support of the issues counsel asserted and
raised in pretrial, trial, and post-trial proceedings; and
(21) failed to preserve facts, claims, or issues Petitioner asserted here,
or at some point in the future, which a court may deem waived by
virtue of counsel’s failure to preserve such facts, claims or issues.
(See Br. at 20-23). The state habeas court determined that, because he did
not brief them, Petitioner abandoned these claims and they were denied for
that reason. (State Habeas Court Order at 30).15
Respondent argues the Court should consider the Abandoned Claims as
procedurally defaulted under state law, and thus denied in this federal habeas
action. (Br. at 22-23). Petitioner argues that the state court’s dismissal of these
15
The state habeas court addressed, on the merits, Petitioner's ineffective
assistance of counsel claims based on the “chilling effect” of Sabel v. State,
282 S.E. 2d 61 (Ga. 1994), as well as several of Petitioner's ineffective assistance
of counsel claims based on his trial counsel's ineffectiveness at the sentencing
phase of the trial. (State Habeas Court Order at 26-30). After addressing these
claims on the merits, the state habeas court concluded that Petitioner had failed to
brief his remaining ineffective assistance of counsel claims—which includes the
Abandoned Claims asserted in this federal habeas proceeding—and these claims
were denied for this reason.
33
claims does not constitute procedural default based on an enforceable state
procedural bar.
There is no authority to support Respondent’s argument that a finding of
abandonment of a claim raised in a state habeas petition constitutes a state finding
of procedural default for purposes of a federal habeas petition. The state habeas
court did not find that Petitioner had procedurally defaulted on these claims. It
concluded only that the claims had been abandoned because Petitioner failed to
brief them.16
The claims were deemed abandoned by the state habeas court even though
Petitioner complied with the state law requirements for asserting claims in his state
habeas action. O.C.G.A. § 9-14-44 requires only that a state habeas petition
“clearly set forth the respects in which the petitioner’s rights were violated.”
O.C.G.A. § 9-14-44. Section 9-14-44 provides that “[a]rgument and citations of
authorities shall be omitted from the petition,” stating further that “a brief may be
submitted in support of the petition setting forth any applicable argument.” Id.
(emphasis added). In Presnell v. Hall, No. 1:07-cv-1267-CC, 2013 WL 1213132
16
The state habeas court discusses the Abandoned Claims in a section of the
order separate from the section in which it discussed the claims it found were
procedurally defaulted. (Compare State Habeas Court Order at 17-23 with id. at
30). This separation of discussions illustrates that the state habeas court itself did
not consider abandonment the same as a procedural default.
34
(N.D. Ga. Mar. 25, 2013), our Court observed it was “not aware of any firmly
established and regularly followed [Georgia] procedural rule dictating that a claim
not argued in briefing is abandoned.” Presnell, 2013 WL 1213132, at *12.
Petitioner here was permitted, but not required, under O.C.G.A. § 9-14-44 to
brief the habeas claims he asserted, and the Court concludes that his decision not to
brief these specific claims was not a procedural default of them. In Georgia, there
is no state law requirement that each claim be briefed and there is no state rule that
failure to brief a claim asserted in a state habeas petition constitutes a procedural
default of that claim.17 The Court concludes that the state habeas court did not
apply a “procedural default principle of state law to arrive at the conclusion that
[Petitioner’s] federal claims are barred.” See Bailey, 172 F.3d at 1302.18
17
Other states specifically require that a claim be asserted in a petition and
briefed. See, e.g., Farmer v. McNeil, No. 5:08CV292/RS/MD, 2010 WL 1957502
(N.D. Fla. Apr. 6, 2010); Burks v. State, 600 So.2d 374, 380 (Ala. Crim. App.),
opinion extended after remand, 600 So.2d 387 (Ala. Crim. App. 1991) (issue not
argued in brief are abandoned). In these states, failure to brief an asserted claim
can result in the claim not being considered on federal habeas review based on a
failure to exhaust the claim, not because the claim was procedurally defaulted. See
Atwater v. Crosby, 451 F.3d 799, 810 (11th Cir. 2006).
18
Petitioner also denies that the state habeas court’s decision was “adequate,”
the third prong of the “independent and adequate” test, and argues that he briefed a
portion of the “abandoned” claims, and that these claims were improperly
considered abandoned by the state habeas court. (Resp. at 9-14). Having
concluded that the state habeas court did not clearly and expressly rely on a state
procedural default rule, the Court does not decide whether the state habeas court’s
35
Even if the Court considered the state habeas court’s “abandonment”
decision to be a finding that the claims were “procedurally defaulted” under state
law, this finding would not qualify as grounds to conclude the Abandoned Claims
were procedurally defaulted for federal habeas review purposes. “[A] state court’s
rejection of a federal constitutional claim on procedural grounds will only preclude
federal review if the state procedural ruling rests upon [an] ‘independent and
adequate’ state ground.” Judd, 250 F.3d at 1313. To constitute an independent
and adequate state rule of decision, a court must find that the last state court
rendering a judgment in the case clearly and expressly stated that it is relying on
state procedural rules to resolve the federal claim without reaching the merits of
that claim. Id. (citing Card v. Dugger, 911 F.2d 1494, 1516-17 (11th Cir. 1990);
Ward, 592 F.3d at 1156-57. Here, the state habeas court did not “clearly and
expressly state” that it was relying on a procedural default rule when it denied
Petitioner’s Abandoned Claims. It merely concluded that the claims were
abandoned and they were denied on that ground. (See State Habeas Court Order at
30). The state habeas court’s finding of abandonment does not satisfy the first
prong of the “independent and adequate state ground” test. See Judd, 250 F.3d at
ruling, if it had been a finding of state procedural default, was “adequate” to bar
the Court from considering Petitioner’s claims on the merits.
36
1313. For this further reason, the Abandoned Claims are not deemed procedurally
defaulted in this federal habeas action.19
3.
Exhaustion of Claims
Respondent argues that several of Petitioner’s claims were not presented to
the state court and, because they are unexhausted, they are procedurally defaulted.
Respondent argues that Petitioner failed to exhaust the following claims:
Claim I - ineffective assistance of counsel stemming from counsel’s
alleged failure to:
(a) properly investigate Phillip Williams’—Petitioner’s
co-defendant—background and reputation to identify
impeachment evidence;
(b) to pursue plea negotiations; and
(c) investigate, rebut, and object to evidence of Petitioner’s bad
behavior in the Cobb County Adult Detention Center;
Claim V - prosecutorial misconduct because the prosecutor:
(a) vouched for Williams’ credibility during his guilt-innocence
phase closing argument;
19
Respondent does not argue that the Abandoned Claims are unexhausted.
Petitioner did not brief the Abandoned Claims and his State Habeas Petition
contains scant factual support for them. Merely listing a series of unsupported
claims without providing the state court with a meaningful opportunity to apply
facts to the law may not satisfy the exhaustion requirement. See Hunt, 666 F.3d at
730; Kelley, 377 F.3d at 1344-45. Respondent’s decision not to argue exhaustion
at this stage does not constitute a waiver of this affirmative defense. See
28 U.S.C. § 2254(b)(3) (“A State shall not be deemed to have waived the
exhaustion requirement or be estopped from reliance upon the requirement unless
the State, through counsel, expressly waives the requirement.”).
37
(b) argued the worth and value of the victim during his
sentencing phase closing argument; and
(c) violated Giglio v. United States when the prosecutor
presented false testimony;
Claim VII - trial court error because the trial court failed:
(a) during the guilt-innocence phase to instruct that bodily
injury must occur in the venue where the original kidnapping
occurred; and
(b) at the sentencing phase to define the elements of armed
robbery; and
Claim XI - violation of Petitioner’s Eighth Amendment rights when
the Georgia Supreme Court failed to conduct a meaningful
proportionality review.
(Br. at 15-19).
a)
Claim I - Ineffective Assistance of Counsel Because
Counsel Failed to Investigate Williams’ Background and
Reputation
Williams was Petitioner’s co-defendant. Respondent claims that Petitioner
failed to raise, in his State Habeas Petition, a claim of ineffective assistance of
counsel based on trial counsel’s alleged failure to properly investigate Williams’
background and reputation to use to impeach Williams. Petitioner claims he
asserted in his State Habeas Petition that his trial counsel “failed to properly and/or
effectively cross-examine and/or impeach each of the state’s witnesses, particularly
38
the co-defendant [Williams] . . . .” (State Habeas Petition at 107).20 Petitioner also
claimed that his trial counsel failed to adequately “investigate and present evidence
on the theory of the defense” which he and his counsel agreed to employ at the
guilt-innocence and sentencing phases of trial. (Id. at 108).21 Petitioner argues that
this claim was also asserted and exhausted in his state court habeas proceeding and
that it subsumed counsel’s claimed failure to properly investigate Williams’
background and reputation. (Resp. at 33-34).
The law does not require that a state habeas claim be repeated verbatim as a
federal habeas claim to avoid procedural default. See Spiegel v. Sandstrom,
20
Williams had been convicted of battery for a premeditated assault he
committed at the Cobb County Adult Detention Center.
21
Petitioner, in his state habeas Post-Hearing Brief, specifically claimed that
his trial counsel was ineffective for failing to secure Williams’ prison or conviction
records. (Post-Hearing Brief at 53). Petitioner also claimed that trial counsel’s
lack of due diligence to secure Williams’ records for impeachment purposes
constituted ineffective assistance of counsel. (Id. at 96 n.31). This claim provides
more context to Petitioner’s claim in his State Habeas Petition regarding his
counsel’s failure to properly cross-examine and impeach witnesses and to
investigate and present evidence. Because Petitioner was required to raise his
claims in his State Habeas Petition, the Court considers only whether the claim
described in his State Habeas Petition is the “substantial equivalent” of the claim
asserted in this federal habeas action, and does not consider how the claim was
presented to the state habeas court in Petitioner’s Post-Hearing Brief. See Murrell,
674 S.E.2d at 892 n.2; O.C.G.A. §§ 9-14-44, 9-14-51.
39
637 F.2d 405, 407 (5th Cir. Unit B Feb. 1981).22 What is required is “that the
substantial equivalent of a petitioner’s federal habeas claim [was] argued in the
state proceedings.” Id. The question here is whether Petitioner’s generalized
“failure to properly cross-examine and impeach [Williams]” and “failure to
investigate and present evidence” claims in his State Habeas Petition were specific
enough to include the “failure to obtain information about Williams’ background”
claim Petitioner asserts in the Amended Petition.
Comparing Petitioner’s state habeas claim with the federal habeas claim of
ineffective assistance of counsel based on the claimed failure to investigate
Williams’ background and reputation for use to impeach Williams at trial, the
Court finds the state and federal claims are substantially the same, even if the
federal claim is more targeted. Williams was the prosecutor’s primary witness
against Petitioner. (Am. Pet. at 86). Petitioner asserts that trial counsel’s defense
strategy was to attack Williams’ credibility and suggest that he was more culpable
than he admitted in his testimony. (Resp. at 33-34). Petitioner’s claims in his
State Habeas Petition that trial counsel was ineffective in (i) failing to adequately
“investigate and present evidence on the theory of the defense” and (ii) failing to
22
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), the
Eleventh Circuit adopted as binding the decisions of the Fifth Circuit made before
October 1, 1981.
40
properly cross-examine and impeach Williams, when read together, evince the
substantial equivalent of the claim before the Court that his trial counsel was
ineffective for failing to properly investigate Williams’ background and reputation
to use in cross-examining and impeaching Williams. See Spiegel, 637 F.2d at 407.
The state habeas court was able to apply controlling legal principles to Petitioner’s
claim that his counsel was ineffective for failing to investigate evidence on his
defense and failing to properly cross-examine and impeach Williams. See Kelley,
377 F.3d at 1344. The Court finds that the substantial equivalent of Petitioner’s
state habeas claim is asserted by Petitioner in his federal habeas action, and thus
Petitioner’s ineffective assistance of counsel claim based on the investigation of
Williams’ background and reputation is not procedurally defaulted. See Spiegel,
637 F.2d at 407; see also Hunt, 666 F.3d at 730.
b)
Claim I - Ineffective Assistance of Counsel Because
Counsel Failed to Pursue Plea Negotiations
“Defendants have a Sixth Amendment right to counsel, a right that extends
to the plea-bargaining process.” Lafler v. Cooper, 132 S. Ct. 1376, 1384 (2012).
As a result, “[d]uring plea negotiations defendants are entitled to the effective
assistance of competent counsel.” Id. (internal quotations omitted). Petitioner, in
his State Habeas Petition, asserted that “[t]rial counsel was ineffective for failing to
provide the defendant with any advice, or at the very least adequate advice and
41
counsel, regarding his decisions concerning a possible plea in the case . . . .”
(State Habeas Petition at 108). In his Amended Petition in this case, Petitioner
claims that his trial counsel failed to provide him counsel “regarding his decisions
concerning a possible plea in the case, and . . . in failing to pursue plea negotiations
with the State.” (Am. Pet. at 57).
Comparing these two claims, the only difference between them is that, in his
State Habeas Petition, Petitioner did not allege a claim for ineffective assistance of
counsel based on trial counsel’s “fail[ure] to pursue plea negotiations with the
State.” (See State Habeas Petition at 108). Petitioner argues that while the claims
in his state and federal habeas petitions are not stated identically, the state habeas
claim was sufficient to assert Petitioner’s claim of ineffective assistance of his trial
counsel regarding plea negotiations and offers generally. The Court agrees. The
claim alleged in the state and federal habeas actions is that Petitioner’s trial
representation was inadequate and ineffective regarding decisions about a plea or
the negotiations on plea agreement terms if a particular term was not acceptable.
Petitioner was not required to assert verbatim here the claim he asserted in his state
habeas proceeding. See Spiegel, 637 F.2d at 407. Petitioner was only required to
show that the “substantial equivalent” of his federal habeas claim was presented to
the state habeas court. Id. The Court concludes Petitioner asserts in this federal
42
habeas action the substantial equivalent of the claim he asserted in his State Habeas
Petition, and this claim is not procedurally defaulted.
c)
Claim I - Ineffective Assistance of Counsel Because
Counsel Failed to Investigate, Rebut, and Object to
Evidence of Petitioner’s Bad Behavior in the Cobb
County Adult Detention Center
Petitioner argues that he adequately raised in his state court habeas
proceeding that his counsel was ineffective for failing to investigate, rebut and
“object properly to evidence concerning Petitioner’s alleged bad behavior in the
Cobb County Adult Detention Center.” (Resp. at 34; see also Am. Pet. at 58).
Petitioner alleged in his State Habeas Petition that his trial counsel “failed to
investigate and/or rebut and/or object properly to evidence concerning Petitioner’s
alleged involvement in other crimes, adjudicated and/or unadjudicated,” and
“failed to present critical evidence at trial.” (Resp. at 34).
Petitioner’s general allegations in his State Habeas Petition that his trial
counsel failed to investigate, rebut, or object “to evidence concerning Petitioner’s
alleged involvement in other crimes” did not present his “bad behavior at Cobb
County Adult Detention Center” claim to the state habeas court “such that the
reasonable reader would understand [the] claim’s particular legal basis and specific
factual foundation . . . .” See Hunt, 666 F.3d 730-31; see also French 790 F.3d at
1271 (“[A] petitioner cannot ‘scatter some makeshift needles in the haystack of the
43
state court record.’”). “Although it is difficult to ‘pinpoint the minimum
requirements that a habeas petitioner must meet in order to exhaust his remedies,’”
Petitioner’s State Habeas Petition did not meet this threshold. French 790 F.3d at
1271. Petitioner did not “present the [state habeas court] with the specific acts or
omissions of his lawyers” that he argues were error, or that the evidence of “other
crimes” Petitioner may have committed includes his behavior issues at the Cobb
County Adult Detention Center. See Kelley, 377 F.3d at 1344. Only in his
Post-Remand Brief did Petitioner state that an expert would have explained that his
infractions at the Cobb County Adult Detention Center were the result of
Petitioner’s cognitive and emotional impairments. (See Post-Remand Brief at
46-48, Post-Remand Reply at 15-17). This purported mitigation-type information
does not fall within the state habeas claim that focuses on evidence concerning
“alleged involvement in other crimes.”23
23
Petitioner argued in his state habeas post-remand briefing that an “expert
would have explained to the jury that Petitioner’s repeated infractions at the Cobb
County jail were an expected consequence of his inability to control his own
impulses and navigate complex interpersonal situations.” (See Post-Remand Brief
at 46-48; Post-Remand Reply at 15-17). Petitioner also claims that he detailed in
his state habeas Post-Hearing Brief “how trial counsel’s failures to conduct an
adequate investigation left them unable to meet the state’s case in aggravation.”
(Resp. at 34). Although these allegations may provide context, Petitioner was
required to raise his Cobb County Adult Detention Center conduct as a basis for
“alleged involvement in other crimes” claim in his State Habeas Petition, not for
44
That Petitioner discussed, in his Post-Remand Brief, how his mental health
issues may have contributed to his behavior in the Cobb County Adult Detention
Center did not qualify or inform his general, unspecified “failure to investigate and
rebut ‘Petitioner’s alleged involvement in other crimes’” claim asserted in his State
Habeas Petition. Understandably, the state habeas court did not consider the claim
now asserted in Petitioner’s Amended Petition. The state habeas court’s order
shows that the state habeas court considered many of Petitioner’s ineffective
assistance of counsel arguments, but did not consider, or reference at all, his claim
that his counsel was ineffective for failing to investigate, rebut, or object to any
evidence regarding Petitioner’s conduct at the Cobb County Adult Detention
Center. (See Order on Remand; see also State Habeas Court Order).
Petitioner did not fairly present in his State Habeas Petition the legal or
factual basis for the “bad behavior at Cobb County Adult Detention Center” claim
alleged in the Amended Petition. As a result, Petitioner did not exhaust this claim
and it is procedurally defaulted, and dismissed. See Bailey, 172 F.3d at 1305
(“[F]ederal 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.”).
the first time in subsequent briefing. See Murrell, 674 S.E.2d at 892 n.2;
O.C.G.A. §§ 9-14-44, 9-14-51.
45
d)
Claim V - Prosecutorial Misconduct Because Prosecutor
Vouched for Williams’ Credibility During His
Guilt-Innocence Phase Closing Argument
Petitioner relies on a single allegation in his State Habeas Petition to support
that his federal habeas “vouching” claim was sufficiently raised. Petitioner
alleged, in his State Habeas Petition: “During argument the prosecutor also argued
facts not in evidence and improperly offered his own personal opinion about the
evidence and the proper outcome.” (State Habeas Petition at 63, ¶ 14). Petitioner
did not present to the state habeas court a claim that the prosecutor improperly
offered his own opinion on, and thus vouched for, Williams’ credibility.
In his State Habeas Petition, Petitioner alleged an unspecific, broad claim
based on the entirety of the prosecutor’s closing argument. He did not claim that
the prosecutor, in his closing argument, inappropriately vouched for any witnesses’
credibility. A state habeas petitioner, “[t]o satisfy the exhaustion requirement[,]” is
required to “present [his] claims to the state courts such that the reasonable reader
would understand each claim’s particular basis and specific factual foundation.”
Hunt, 666 F.3d at 730-31. It is not “sufficient that all the facts necessary to support
the claim were before the state courts or that a somewhat similar state-law claim
was made.” Kelley, 377 F.3d at 1344. The petitioner must have presented his
claim to the state habeas court such that the state habeas court was “permitted the
46
opportunity to apply controlling legal principles to the facts bearing upon (his)
constitutional claim.” Id. (internal quotations omitted). “[T]he grounds relied
upon must be presented face-up and squarely.” Hunt, 666 F.3d at 730-31. That
was not done here and for that reason the State Habeas Petition does not
sufficiently assert the “vouching” claim Petitioner seeks to assert in this federal
habeas action. Petitioner has procedurally defaulted on this claim and it is
dismissed. See O.C.G.A. § 9-14-51; Bailey, 172 F.3d at 1305.
e)
Claim V - Prosecutorial Misconduct Because Prosecutor
Argued the Worth and Value of the Victim During His
Sentencing Phase Closing Argument
The Amended Petition alleges that the prosecutor at trial “made a number of
improper and prejudicial arguments, including . . . improperly arguing the worth
and value of the victim.” (Am. Pet. at 96-97). Petitioner contends the following
claim in his State Habeas Petition sufficiently alleged the claim asserted here:
Petitioner was denied his right to a fair trial, due process, equal
protection, the effective assistance of counsel, and a fair and reliable
capital sentencing proceeding, by the prosecutor’s reliance upon
substantial “victim impact” testimony.
(State Habeas Petition at 88). This language was offered to support Petitioner’s
claimed violation of his constitutional rights by the trial court’s erroneously
permitting “the prosecution to introduce substantial inflammatory and prejudicial
so-called ‘victim impact’ testimony.” (Id.).
47
The state habeas claim upon which Petitioner relies here was based on the
admissibility of the evidence at trial. In the Amended Petition before this Court,
Petitioner does not argue that the “victim impact” evidence was inadmissible at
trial, but rather that the prosecutor generally and improperly argued the worth and
value of the victim. Petitioner does not identify the specific statements made by
the prosecutor during his argument or the evidence, if any, that the prosecutor cited
in his argument. The state and federal habeas claims are based on different
grounds and are not the substantial equivalent of one another. See Spiegel,
637 F.2d at 407. Petitioner did not exhaust this claim, and it is procedurally
defaulted and dismissed. See Bailey, 172 F.3d at 1305.
f)
Claim V - Prosecutorial Misconduct Because The
Prosecutor Violated Giglio v. United States When the
Prosecutor Presented False Testimony
In Giglio v. United States, 405 U.S. 150 (1972), the Supreme Court stated
the “deliberate deception of a court and jurors by the presentation of known false
evidence is incompatible with rudimentary demands of justice.” Giglio, 405 U.S.
at 153 (internal quotations omitted). Respondent argues that Petitioner failed to
exhaust his claim that the prosecutor violated Giglio when he presented false
testimony from (i) Petitioner’s arresting officers and Cobb County detectives
regarding Petitioner’s arrest, and (ii) corrections officers at the Cobb County
48
Detention Center regarding Petitioner’s reputation for deception, and that he was
the “worst” individual incarcerated at that center. (Br. at 16-17). Petitioner argues
that his state habeas claims based on alleged Giglio violations were addressed by
the state habeas court. Petitioner states:
Respondent . . . observes that the state habeas court ruled that
. . . [Petitioner’s Giglio- based] claim was res judicata . . . . If the state
habeas court ruled upon the claims, whether erroneous or not, then the
claims were necessarily presented to the state court for review. As
Respondent correctly stated, the Giglio claims were explicitly
identified and ruled on by the state habeas court in its 2008 Order.
(Resp. at 37). Respondent argues that the state habeas court’s decision that the
claims were barred does not support that the claims were exhausted, because the
state habeas court’s holding was wrong.
(1)
Agent McCravy’s Testimony
Petitioner argued in his Appellate Brief submitted to the Georgia Supreme
Court that Agent McCravy’s testimony that he arrested Petitioner and Williams at
the same time and brought them to the police station together, when combined with
his testimony that he brought Williams from a juvenile detention center, gave the
jury the false impression that Petitioner also was brought from the detention center.
(Appellate Br. at 179). Petitioner contends he was not brought to the police station
with Williams in the same vehicle. (Id. at 179-80). Petitioner argued that, because
Agent McCravy was not present at his arrest, his testimony was inadmissible, and
49
when it was admitted, it was highly prejudicial to Petitioner. Petitioner argued that
his rights to due process, equal protection, a fair trial, and confrontation were
violated as a result. (Id. at 181).
Petitioner, however, did not argue to the Georgia Supreme Court and did not
allege in his State Habeas Petition that the prosecutor deliberately deceived the
state court and jury, and he did not specifically allege that the prosecutor presented
known false evidence to the jury, in violation of Giglio. (State Habeas Court Order
at 21); see also Sears, 493 S.E.2d at 186. Neither the Georgia Supreme Court nor
the state habeas court were given the opportunity to address the Giglio-based claim
that Petitioner advances in this federal habeas action.
To exhaust a claim, it is not sufficient for a petitioner to simply present to
the state courts all the facts necessary to support a claim. Kelley, 377 F.3d at
1343-44. A petitioner must also present the claim “such that the reasonable reader
would understand each claim’s particular legal basis . . . .” Hunt, 666 F.3d at 730.
Even if Petitioner presented sufficient facts to support a Giglio claim, Petitioner
did not specifically assert a Giglio violation and the state courts thus were denied
the opportunity to consider whether the conduct alleged by Petitioner violated the
prosecution’s obligation under Giglio. Petitioner did not raise and did not exhaust
50
this claim, and it is procedurally defaulted and dismissed. See
O.C.G.A. § 9-14-51; Bailey, 172 F.3d at 1305.
(2)
Detective Bello’s Testimony
Detective Bello, who was involved in Petitioner’s arrest, testified at trial that
Petitioner lacked remorse for his crimes and that she would not believe Petitioner’s
sworn testimony. (Appellate Br. at 184-85). Petitioner argued on direct appeal
that the trial judge erred in allowing Detective Bello’s testimony, because the
testimony consisted of a speculative opinion which lacked any probative value.
(Id. at 187). Petitioner did not argue in his direct appeal or in his state habeas
proceeding that, in eliciting this testimony, the prosecutor deliberately deceived the
trial court and the jury, or knowingly presented false testimony. Petitioner also did
not claim in the state proceedings that the presentation of Detective Bello’s
testimony violated Giglio. As a result, neither the Georgia Supreme Court nor the
state habeas court addressed whether the alleged conduct violated Giglio.
(State Habeas Court Order at 21); Sears, 514 S.E.2d at 435. Petitioner did not
present to the Georgia Supreme Court or the state habeas court the specific legal
basis for his Giglio-based claim. See Hunt, 666 F.3d at 730. Petitioner did not
exhaust his claim based on this alleged violation of Giglio, and it is procedurally
defaulted and dismissed. See O.C.G.A. § 9-14-51; Bailey, 172 F.3d at 1305.
51
(3)
Major Burns’ Testimony
Finally, Petitioner argued to the Georgia Supreme Court that Major Jim
Burns, a Cobb County Adult Detention Center corrections officer, testified that
Petitioner was the “worst prisoner he had come across in his 17 years at the jail,”
that Petitioner was transferred nearly 40 times before trial because of his allegedly
disruptive behavior, and that he would not believe Petitioner’s sworn testimony.
(Appellate Br. at 185). Petitioner argued this testimony was impermissible
character evidence and that it was error to admit it at trial. (Id. at 186-88). Like
Agent McCravy’s and Detective Bello’s testimony, Petitioner did not argue in his
direct appeal or his state habeas proceeding that Major Burns’ testimony violated
Giglio, and in the absence of a claim that the testimony violated Giglio’s
requirements, neither the Georgia Supreme Court or the state habeas court
evaluated the testimony based on a claimed Giglio violation. (State Habeas Court
Order at 21); Sears v. State, 514 S.E.2d 426, 435 (Ga. 1999). Petitioner did not
present Giglio as a specific legal basis for this claim. This claim was not
exhausted, and it is procedurally defaulted and dismissed. See
O.C.G.A. § 9-14-51; Hunt, 666 F.3d at 730; Bailey, 172 F.3d at 1305.
52
g)
Claim VII - Trial Court Error When the Trial Court
Failed During the Guilt-Innocence Phase to Instruct That
Bodily Injury Must Occur in the Venue Where the
Original Kidnapping Occurred
Petitioner argues that he sufficiently raised on direct appeal his claim that
the trial court failed at the guilt-innocence phase to “instruct the jury that bodily
injury must occur in the venue where the original kidnapping occurred.” (Resp. at
37) (citing Appellate Br. at 97). Respondent agrees that this claim was sufficiently
presented to the Georgia Supreme Court and thus it was exhausted. (Reply at 32).
This claim is not procedurally defaulted.
h)
Claim VII - Trial Court Error When the Trial Court
Failed at the Sentencing Phase to Define the Elements of
Armed Robbery
Petitioner concedes he failed to exhaust his claim that the trial court failed at
the sentencing phase to define the elements of armed robbery, and this claim is
procedurally defaulted and dismissed. (See Resp. at 38).
i)
Claim XI - Georgia Supreme Court Failed to Conduct a
Meaningful Proportionality Review
The Georgia Supreme Court must, for every death sentence imposed, ensure
the punishment is not “excessive or disproportionate to the penalty imposed in
similar cases, considering both the crime and the defendant.” O.C.G.A.
§ 17-10-35(c)(1), (3). Petitioner argues that the Georgia Supreme Court
53
improperly upheld his death sentence when it relied on seven allegedly similar
cases in which a death sentence was imposed. Petitioner claims, however, that
only three of these cases involved kidnapping with bodily injury, the same crime of
which Petitioner was convicted, and, in each of them, the defendant, unlike
Petitioner, was also found guilty of murder. (Am. Pet. at 125-26). Petitioner
argues further that the Georgia Supreme Court failed to consider all of the
kidnapping with bodily injury cases in which a defendant was not sentenced to
death. (Id. at 126). This failure, Petitioner claims, resulted in a disproportionate
sentence that violated the Eighth Amendment. (Resp. at 41). Petitioner asserts
that the Georgia Supreme Court’s failure to conduct a meaningful proportionality
review violated Petitioner’s Eighth Amendment rights. (Am. Pet. at 124-27).
Because the Georgia Supreme Court failed to conduct a proper proportionality
review, Petitioner claims, this Court is required to conduct it. (Am. Pet. at 127).
Respondent argues that Petitioner did not raise his proportionality review
claim in his state court proceedings, and failed to exhaust it. (Br. at 19).24 The
Court disagrees. On direct appeal, Petitioner argued that his death sentence was
disproportionate to the sentences imposed for other kidnapping with bodily injury
24
Petitioner argues also that his death sentence is excessive in view of his
crime of conviction—kidnapping with bodily injury—and the sentence thus
violates the Eighth Amendment. (Am. Pet. at 111-17). Respondent does not argue
this claim is not properly before this Court.
54
convictions. (Appellate Br. at 216-18). A review of Petitioner’s State Habeas
Petition shows that Petitioner sufficiently raised his proportionality review claim in
his state habeas proceeding. (Compare State Habeas Petition at 27-29 with
Am. Pet. at 124-27). This claim is not procedurally defaulted. See Bailey,
172 F.3d at 1305.25
C.
Cognizable Federal Habeas Claims
Respondent argues that the following are not cognizable federal habeas
claims based on alleged violation of Petitioner’s Either Amendment rights: (1) the
Georgia Supreme Court failed to conduct a meaningful proportionality review
(Claim XI); (2) the extraordinarily long delay in the imposition of Petitioner’s
sentence (Claim XIII); and (3) Georgia’s use of lethal injection as a means of
execution (Claim XV).
1.
Claim XI - Georgia Supreme Court Failed to Conduct a
Meaningful Proportionality Review
Respondent argues that the Eleventh Circuit’s decisions in Moore
v. Balkcom, 716 F.2d 1511 (11th Cir. 1983) and Lindsey v. Smith, 820 F.2d 1137
(11th Cir. 1987) preclude the Court from conducting a proportionality review. (Br.
at 32-33). In Moore, the Eleventh Circuit found that “[a]s a federal court
25
The Court addresses in Section II(C)(1) Respondent’s additional argument
that this is not a cognizable habeas claim.
55
reviewing a collateral attack on a state prosecution, we must give great deference
to the Georgia Supreme Court’s method of conducting its proportionality review,”
and held that “the district court erred in conducting its own proportionality
review.” Moore, 716 F.2d at 1517, 1518.26 In Lindsey, the Eleventh Circuit,
relying on Moore, rejected the argument that the federal habeas court was required
to conduct a de novo proportionality review, noting that the “Constitution does not
require a proportionality review.” Lindsey, 820 F.2d at 1154.
After Moore and Lindsey, the Eleventh Circuit, in United States v. Elkins,
885 F.2d 775 (11th Cir. 1989), observed that the Supreme Court has held that
grossly disproportionate sentences can violate the Eighth Amendment, and that
federal courts must conduct a proportionality review of sentences imposed. Elkins,
885 F.2d at 788.
In 2002, the Supreme Court in Atkins found that the Eighth Amendment
“prohibits ‘[e]xcessive’ sanctions,” and noted that “it is a precept of justice that
26
The Moore court determined that the Georgia Supreme Court’s
proportionality review provided an adequate sentencing fairness safeguard and
that, while it may have “reached a different conclusion regarding the
proportionality of the sentence had we conducted a case-by-case comparison, we
cannot conclude that the Georgia Supreme Court’s review or the result it reached
shocked the conscience.” Id. at 1519. The Moore court also stated that, had it
concluded that the Georgia Supreme Court’s decision “shocked the conscience,” it
would have been required to remand the case to the state court to resentence the
petitioner, rather than conduct its own de novo proportionality review.
56
punishment for crime should be graduated and proportioned to [the] offense.”
Atkins, 536 U.S. at 311 (citation omitted). The Supreme Court opined that a
proportionality review to ensure that a punishment is not excessive is warranted
under the Eighth Amendment. Id. A proportionality review under the “evolving
standards of decency” should be informed by “objective factors to the maximum
possible extent.” Id. at 311-12.
A review of Supreme Court and Eleventh Circuit authority supports that a
limited proportionality review under the Eighth Amendment to ensure that
Petitioner’s sentence is not excessive is a cognizable claim for habeas relief. See
Elkins, 885 F.2d at 788; Atkins, 536 U.S. at 311-12. “This proportionality review
is extremely limited.” Elkins, 885 F.2d at 788. The Court, when it conducts its
merits analysis of this claim, must “determine only whether the sentence imposed
is so grossly disproportionate to the crime as to constitute cruel and unusual
punishment.” Id. at 789. “In conducting this proportionality review, this Court
must evaluate three elements: (1) the gravity of the offense and the harshness of
the penalty; (2) the sentences imposed on other criminals in the same jurisdiction;
and (3) the sentences imposed for commission of the same crime in other
jurisdictions.” Id.
57
Petitioner’s claim that he received a disproportionately harsh sentence in
violation of the Eighth Amendment is a cognizable federal habeas claim.
2.
Claim XIII – Extraordinary Delay in Imposition of Sentence
Violates Eighth Amendment
Petitioner argues that the extraordinary twenty-four (24) year delay in the
execution of his sentence violates Petitioner’s Eighth Amendment rights.
(Am. Pet. at 127-37). Petitioner claims the twenty-four year period constitutes an
excessive punishment, in part, because of the more restrictive and punitive
conditions of death row confinement, the “mental anguish of living under the
shadow of death,” and the lack of a deterrent effect Petitioner’s execution would
have after twenty-four years. (Id. at 131-37). Respondent argues that the state
habeas court found this claim was not cognizable, and that the Court should reach
the same conclusion. (Br. at 33).27
In Thompson v. Sec’y for Dep’t of Corr., 517 F.3d 1279 (11th Cir. 2008),
the Eleventh Circuit denied a petitioner’s federal habeas claim that his prolonged
confinement on death row was unconstitutional. The Thompson court found that
the petitioner could “identify no case in which the Supreme Court has held that
27
The state habeas court held that Petitioner’s claim that the long period and
conditions of his confinement amounted to cruel and unusual punishment, was not
cognizable because the confinement period was not the result of Petitioner’s
conviction and sentence. (State Habeas Court Order at 24).
58
prolonged confinement on death row violates a prisoner’s constitutional rights.
The only Supreme Court acts involving this issue are denials of petitions for writs
of certiorari.” Thompson, 517 F.3d at 1283. “[G]iven the total absence of
Supreme Court precedent that a prolonged stay on death row violates the Eighth
Amendment guarantee against cruel and unusual punishment, [the Eleventh
Circuit] conclude[d] that execution following a 31-year term of imprisonment is
not in itself a constitutional violation” Id. at 1284.
There is no authority to support Petitioner’s claim that his prolonged death
row confinement violates his Eighth Amendment rights. During his confinement
period, Petitioner “has benefitted from this careful and meticulous process [of
appeal and habeas proceedings] and cannot now complain that the expensive and
laborious process of habeas corpus appeals which exists to protect him has violated
other of his rights.” See White v. Johnson, 79 F.3d 432, 439 (5th Cir. 1996).
Petitioner “had the choice of seeking further review of his conviction and sentence
or avoiding further delay of his execution by not petitioning for further
review . . . .” Id.
Petitioner asserts only a claim concerning the conditions of his confinement,
rather than his sentence of death, and, thus, his claim “fall[s] outside of habeas
corpus law.” See Vaz v. Skinner, No. 14-15791, 2015 WL 9309354, at *2
59
(11th Cir. Dec. 23, 2015); Smith v. Southwood, 226 F. App’x 882, 882 (11th Cir.
2007). Petitioner’s claim is not a cognizable federal habeas claim, and is
dismissed.
3.
Claim XV – Georgia’s Use of Lethal Injection as a Means of
Execution Violates Eighth Amendment
Petitioner argues that Georgia’s protocols and procedures for executing a
prisoner by lethal injection violates the Eighth Amendment, including because the
procedures do not include adequate safeguards to ensure the efficacy of the drugs
that will be used to execute Petitioner. . (Am. Pet. at 139-147).
Respondent argues that this claim concerns the circumstances of Petitioner’s
confinement, and is not a cognizable habeas claim. (Br. at 33-34). Petitioner
asserts the Supreme Court has held that “method-of-execution challenges . . . fall at
the margins of habeas.” (Resp. at 44) (citing Nelson v. Campbell, 541 U.S. 637,
646 (2004)).
The Eleventh Circuit, in a habeas case involving a challenge to Alabama’s
lethal injection protocol, stated:
Issues sounding in habeas are mutually exclusive from those sounding
in a § 1983 action. See Hutcherson v. Riley, 468 F.3d 750, 754 (11th
Cir. 2006) (“An inmate convicted and sentenced under state law may
seek federal relief under two primary avenues:” a petition for habeas
corpus or a complaint under 42 U.S.C. § 1983.). “The line of
demarcation between a § 1983 civil rights action and a § 2254 habeas
claim is based on the effect of the claim on the inmate’s conviction
60
and/or sentence.” Id. A claim is properly raised under § 1983 when
“an inmate challenges the circumstances of his confinement but not
the validity of his conviction and/or sentence.” Id. (internal quotation
marks omitted). By contrast, “habeas corpus law exists to provide a
prisoner an avenue to attack the fact or duration of physical
imprisonment and to obtain immediate or speedier release.” Valle
v. Sec’y, Fla. Dep’t of Corr., 654 F.3d 1266, 1267 (11th Cir. 2011),
cert. denied, ––– U.S. ––––, 132 S.Ct. 73, 180 L.Ed.2d 942 (2011).
Usually, an inmate who challenges a state’s method of execution is
attacking the means by which the State intends to execute him, which
is a circumstance of his confinement. It is not an attack on the
validity of his conviction and/or sentence. For that reason, “[a]
§ 1983 lawsuit, not a habeas proceeding, is the proper way to
challenge lethal injection procedures.” Tompkins v. Sec’y, Dep’t of
Corr., 557 F.3d 1257, 1261 (11th Cir. 2009). Hence, we conclude that
the district court did not err in dismissing McNabb’s lethal injection
challenge in his federal habeas petition. That avenue of relief is still
available to him in a § 1983 action.
McNabb v. Comm’r Ala. Dep’t of Corr., 727 F.3d 1334, 1344 (11th Cir. 2013);
see also Butts v. Chatman, No. 5:13-cv-194 MTT, 2014 WL 185339, at *4
(M.D. Ga. Jan. 15, 2014) (constitutional challenge to Georgia’s lethal injection
protocol must be brought in a Section 1983 action); Whatley v. Upton,
No. 3:09-cv-0074-WSD, 2013 WL 1431649, at *52 (N.D. Ga. Apr. 9, 2013)
(“Petitioner’s challenge to Georgia’s method of execution is not cognizable in a
habeas proceeding and is appropriately brought in a Section 1983 action.”).
61
Petitioner’s method-of-execution claim is an attack on the “circumstance of
his confinement” and not on the “validity of his conviction [or] sentence.” It is not
a cognizable federal habeas claim, and is dismissed. See, e.g., McNabb, 727 F.3d
at 1344 (“A § 1983 lawsuit, not a habeas proceeding, is the proper way to
challenge lethal injection procedures.”).28
III.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Petitioner Demarcus Ali Sears has
procedurally defaulted on his claims for: (1) ineffective assistance of counsel for
failing to investigate, rebut, and object to evidence of Petitioner’s bad behavior in
the Cobb County Adult Detention Center; (2) prosecutorial misconduct for the
prosecutor vouching for Williams’ credibility during his guilt-innocence phase
closing argument; (3) prosecutorial misconduct for arguing the worth and value of
the victim during his sentencing phase closing argument; (4) prosecutorial
misconduct for the violation of Giglio v. United States, 405 U.S. 150 (1972) in
presenting allegedly false testimony from Agent McCravy, Detective Bello, and
Major Burns, and the testimony of Phillip Williams regarding the crime’s
circumstances; (5) prosecutorial misconduct for the prosecutor arguing during the
28
Because Petitioner’s lethal execution claim is not properly before this Court,
the Court does not consider whether this claim has merit.
62
sentencing phase closing argument that the jurors should punish Petitioner for rape;
(6) prosecutorial misconduct for the prosecutor injecting his own view of the
evidence in his guilt-innocence and sentencing phase closing arguments, except as
to his claim that the prosecutor injected his own viewpoint about the purpose of
brass knuckles; (7) trial court error in death-qualifying the jury and disqualifying,
under Witherspoon v. Illinois, 391 U.S. 510, 522 (1968), five jurors for their views
on the death penalty; and (8) relief based on his cognitive and emotional
impairments rendering him the legal equivalent of a juvenile or intellectually
disabled offender. These claims are DISMISSED.
IT IS FURTHER ORDERED that Petitioner Demarcus Ali Sears’ claims
for: (1) trial court error in failing at the sentencing phase to define the elements of
armed robbery, and (2) prosecutorial misconduct for the prosecutor denigrating in
his sentencing phase closing argument the jurors’ right to exercise mercy, are
DISMISSED.
IT IS FURTHER ORDERED that Petitioner Demarcus Ali Sears’ claims
that: (1) the extraordinary post-offense delay in imposition of his sentence violates
the Eighth Amendment, and (2) Georgia’s use of lethal injection as a means of
execution violates the Eighth Amendment, are not cognizable claims for federal
habeas relief and are DISMISSED.
63
IT IS FURTHER ORDERED that Petitioner is entitled to proceed on his
remaining claims.
IT IS FURTHER ORDERED that, pursuant to the Court’s June 24, 2014,
Scheduling Order, Petitioner shall have thirty (30) days from the date of this Order
in which to file any request for discovery and any motion for an evidentiary
hearing. Respondent shall have thirty (30) days from the filing of Petitioner’s
Motion(s) in which to file a response. Petitioner shall have fifteen (15) days from
the filing of Respondent’s Response to his Motions in which to reply. If discovery
is permitted but an evidentiary hearing is not held, Petitioner shall have ninety (90)
days from the date of the conclusion of discovery in which to file his final brief on
the merits of all claims before the Court. If an evidentiary hearing is held,
Petitioner shall have ninety (90) from the date that the transcript is filed in which to
file his final brief on the merits of his claims. If Petitioner’s requests for both
discovery and an evidentiary hearing are denied, then Petitioner shall have ninety
(90) days from the date of the Court’s Order denying his Motions in which to file
his final brief on the merits. In all cases, Respondent shall have sixty (60) days
from the filing of Petitioner’s brief in which to file his final brief in response, and
Petitioner shall have forty-five (45) days thereafter in which to reply.
64
SO ORDERED this 8th day of April, 2016.
_______________________________
WILLIAM S. DUFFEY, JR.
UNITED STATES DISTRICT JUDGE
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