Sears v. Upton
Filing
54
OPINION AND ORDER denying Petitioner's Motions for Discovery and an Evidentiary Hearing 38 and denying as moot Respondent's Motion to Exceed the Page Limitation for Respondents Brief 39 . Signed by Judge William S. Duffey, Jr on 6/20/17. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
DEMARCUS ALI SEARS,
Petitioner,
v.
1:10-cv-1983-WSD
BRUCE CHATMAN, Warden,
Respondent.
OPINION AND ORDER
This matter is before the Court on Petitioner Demarcus Ali Sears’
(“Petitioner”) Motions for Discovery and an Evidentiary Hearing [38], and
Respondent Bruce Chatman’s (“Respondent”) Motion to Exceed the Page
Limitation for Respondent’s Brief [39].
I.
BACKGROUND
A.
Petitioner’s Trial
On April 11, 1991, a Cobb County grand jury issued an indictment charging
Petitioner with one count of kidnapping with bodily injury (Count 1) and one count
of armed robbery (Count 2). ([14.1] at 14-16). The case went to trial.
The evidence [presented at trial] showed that on the afternoon of
October 7, 1990, Demarcus Sears and Phillip Williams were walking
through Atlanta because their car had broken down. Wanting to
return home to Ohio, where they lived, they walked to a Waffle House
in Smyrna and tried to borrow money from several patrons in the
restaurant. They told the patrons that their car had broken down and
they needed money to go to Cincinnati. Sears carried a black
briefcase that contained brass knuckles, knives and a set of old
handcuffs that was missing a key. He opened the briefcase in the
restaurant and tried to sell some of the items to a customer. After
receiving directions and a couple of dollars for bus fare, Sears and
Williams walked to a nearby Kroger food store. A police officer
observed them loitering near the Kroger parking lot and briefly spoke
with them before he left in response to a radio call. Subsequently,
they decided to steal a car so they could drive back to Cincinnati.
They spotted the victim, Gloria Wilbur, when she parked her
1985 Buick and entered the Kroger. Around 8:00 p.m., Ms. Wilbur
returned to her car and placed her groceries in the trunk. Sears
approached her, struck her with the brass knuckles and forced her into
the car. Williams then got behind the wheel and they drove north on
I–75. Sears told Ms. Wilbur to keep quiet, pulled her into the back
seat, and handcuffed her with her hands behind her back. When they
stopped for gas and hamburgers, Sears wedged Ms. Wilbur down
between the seats and covered her with book bags to prevent
discovery. While they were driving through Tennessee, he raped her.
They crossed the border into Kentucky around 1:00 a.m. and stopped
the car. Despite her pleas to remain in the car, Sears took the victim
into the bushes along I–75 and stabbed her to death. Ms. Wilbur’s
body was found, still handcuffed, almost a week later. Her abandoned
Buick was discovered in a Cincinnati suburb. Bloodstains in the car
matched the victim and pubic hair taken from the back seat matched
Sears.
Sears v. State, 493 S.E.2d 180, 182 (Ga. 1997). On September 22, 1993, a jury
convicted Petitioner on both counts of the indictment. ([14.2] at 91).
2
B.
Petitioner’s Sentencing
On September 23, 1993, at approximately 3:56 p.m., the jury began their
sentencing deliberations. ([15.22] at 80, 92). The jury was excused at 6:37 p.m.
and resumed their deliberations at 9 a.m. the next morning. ([15.22] at 94-95).
At 11:20 a.m., the trial court notified the parties of the following note from the
jury:
Dear Judge Staley, several jurors are having a problem deciding
whether rape and murder can be statutory aggravating circumstances
in this case. They believe that since the Defendant was not charged or
convicted—and convicted is underlined—of these charges in Georgia,
they cannot consider these two crimes as statutory aggravating
circumstances even though they may believe beyond a reasonable
doubt that these crimes occurred in this case. Please provide the jury
with guidance if you can.
([15.23] at 10). Following a colloquy with the parties, the trial court instructed the
jury:
Under our law, a sentence of death shall not be imposed unless the
jury finds beyond a reasonable doubt that at least one or more
statutory aggravating circumstances exists; recommends the death
sentence in its verdict; and designates in its verdict, in writing, the
statutory aggravating circumstances or stances which it finds from the
evidence to exist in this case beyond a reasonable doubt.
([15.23] at 17). The trial court also recharged the jury on reasonable doubt and the
statutory aggravating circumstances, and instructed the jury to “remember the
charge in its entirety and apply that entire charge to the facts and circumstances” of
3
the case. ([15.23] at 16-20). At 11:40 a.m., the jury returned to the jury room to
continue their deliberations. ([15.23] at 20).
At 12:30 p.m., the trial court notified the parties of a second jury note, which
stated: “The jury is at an eleven-one deadlock in favor of the death penalty. How
do we complete the verdict as to sentencing? Will the jury be polled, and how
should the eleven jurors answer if they don’t agree with the one juror who has
voted for life imprisonment?” ([15.23] at 22). Petitioner argued that the note
indicated the jury had reached a verdict of life imprisonment. ([15.23] at 23). The
trial court stated it would instruct the jury to continue their deliberations because
they had only deliberated for six hours. ([15.23] at 23-24). At 12:34 p.m., the trial
court instructed the jury as follows:
You all have only been deliberating on this case for six hours.
I would like you all to consider continuing your deliberations and see
what you can do with the case. I’m not putting any pressure on you
to [do] anything one way or another. Whatever your decision is,
that’s you[r] decision. But I feel like you need to deliberate on the
case longer. I’m going to send you to lunch, and I want you to come
back after you’ve had your lunch hour, and I want you to continue
with your deliberations.
([15.23] at 25).
At approximately 2 p.m., following a lunch break, the jury resumed their
deliberations. ([15.23] at 27). At 4:50 p.m., the trial court notified the parties of a
third note from the jury, which stated:
4
Dear Judge Staley, we have reviewed the case from start to finish and
we are still deadlocked eleven to one in favor of the death penalty.
All twelve jurors agree that there is a hopeless deadlock with no hope
of resolution. Deliberations have ceased. What do we do now? All
minds are closed.
([15.23] at 27). Petitioner asked the trial court “to accept the jury’s non-unanimous
verdict and impose a sentence of life.” ([15.23] at 28). The trial court denied
Petitioner’s request, and provided the jury with supplemental instructions approved
by the Georgia Supreme Court in Romine v. State, 350 S.E.2d 446 (Ga. 1986):1
I’ve received your note. And in light of your note, I believe it’s
appropriate to give you some further instructions at this time. You’ve
been deliberating a while, and I deem it proper to advise you further in
regards to the desirability of agreement, if possible.
This case has been exhaustively and carefully tried by both sides. It
has been submitted to you for a decision and verdict, if possible.
While the verdict must be the conclusion of each juror, and not a mere
acquiescence of the jurors in order to reach an agreement, it is still
necessary for all of the jurors to examine the issues and questions
submitted to them with candor and fairness and with proper regard
and deference to the opinion of each other. A proper regard for the
judgments of others will greatly aid us in forming our own judgments.
1
The Georgia Supreme Court, in Romine, held that “(1) Where a jury is
unable to agree on a verdict, that disagreement is not itself a verdict; and
(2) whether a jury is hopelessly deadlocked is an evaluation we commit to the
sound discretion of the trial court.” Romine, 350 S.E.2d at 451. The Romine court
approved a modified Allen charge for use at the sentencing phase of a death
penalty case where the jury claims it is deadlocked. See Allen v. United States,
164 U.S. 492 (1896). “An ‘Allen charge’ is a trial court’s admonition to a
deadlocked jury, instructing it to make further attempts to reach a verdict.” United
States v. Polar, 369 F.3d 1248, 1254 (11th Cir. 2004).
5
Each juror should listen to the arguments of other jurors. If the
members of the jury differ in their views of the evidence, or the
mitigating or aggravating circumstances, such differences of opinion
should cause them all to scrutinize the evidence more closely and to
re-examine the grounds of their opinion. It’s your duty to decide the
issues that have been submitted to you, if you can conscientiously do
so. Do not hesitate to change an opinion if you become convinced it’s
wrong. However, you should never surrender honest convictions or
opinions in order to be congenial or reach a verdict solely because of
the opinions of other jurors.
Members of the jury, the aim ever to be kept in view is the truth as it
appears from the evidence, examined in the light of the instructions of
the Court.
I am going to send you to the hotel, and you’ll have your dinner. And
you’ll have an evening hour to step away from all this. You’ve had a
long day. Put this aside. Enjoy each other’s company.
I’m going to let you think about this instruction, and think about all
the instructions of the case in the morning. And I’m going to let you
pick up your deliberations then.
([15.23] at 30-31). The jury was then excused for the day. ([15.23] at 32).
At 9 a.m. the next morning, the jury resumed their deliberations. ([15.24] at
10). At 10:25 a.m., the trial court told the parties:
Been a lot going on this morning. It started off with the foreman
asking the deputies and the bailiffs to remove all of the magazines and
reading material out of the jury room, and asking them to ask all the
jurors to turn over any writing materials and things that weren’t
related to the case. Also, yesterday, there was an instance where one
of the jurors was sitting [in] the jury room with a Sony Walkman on
her head. And that was—she was asked to turn that over so she could
participate in the deliberations. That happened yesterday.
6
This morning I have two notes. The first note came when I asked you
all to come the first time. It goes as follows: In the jury selection
process, each juror was read the charges in this case. Murder was not
one of the charges. The reason that the juror who has steadfastly
maintained blank position from the outset of deliberations has given
for a blank decision is that blank cannot vote on the death penalty
because the Defendant was not convicted of murder. And he’s got
another side. Blanks are to protect the gender of the juror.
Can you provide the jury with a transcript of the questions and
answers as to their position on the death penalty? We need to know
what questions were asked and how the jurors responded. We would
also like for you to provide to the jury a definition of perjury and the
penalty for the commission of perjury. Sanford L. Abrams,
Foreperson.
Then I got another note. Dear Judge Staley, I am concerned about the
actions of the foreman of this jury. This letter is in reference to the
foreman’s most recent letter to you. Mr. Abrams wrote this letter
prior to our jury deliberations today. He informed us that he was
submitting the letter to you whether we wanted him to or not. I don’t
think this type behavior [sic] is appropriate for a foreman. I will not
sit on a jury where I am singled out. I am not being treated fairly in
this deliberating process. I am also being singled out by the
foreman—and, I guess, also—he is overstepping his boundaries as a
foreman of the jury. To my understanding, a foreman should be a
leader, not a dictator. Please explain the duties and responsibilities of
a jury foreman. Should he be able—question a juror’s response to the
Court during jury selection? Sincerely, Angel Fisher.
([15.24] at 10-12).
Petitioner asked the trial court to declare a mistrial and sentence him to life
in prison. ([15.24] at 19). The trial court denied Petitioner’s motion on the
grounds that the jury had not deliberated “long enough . . . to review all the
7
evidence and discuss with each other all the different issues involved.” ([15.24] at
20). The trial court noted that “if somebody was listening to a Sony and reading
magazines yesterday, we don’t really know how much time they’ve spent
deliberating.” ([15.24] at 21). At Petitioner’s request, the trial court agreed to
instruct the jury that that (i) “[i]n matters of voting, all jurors stand the same,” and
(ii) “[i]t is inappropriate for any juror to do anything other than fully participate in
jury deliberations.” ([15.24] at 18-19, 24). At 11:31 a.m., the trial court instructed
the jury:
THE COURT: Mr. Abrams, I have your note from this morning.
And, Ms. Fisher, I have yours as well. I perceive from that that there
are four issues presented by the—I perceive that there are four issues
presented by the two notes that I have. One is—discusses loosely
whether the jury may impose the death penalty when the jury has not
found the Defendant guilty of murder. That generally placed as one
of the issues presented in your note to the Court. Another issue is a
request to have the transcript read of the jury voir dire, jury
questioning process. Another request is for a definition of perjury.
And then from reading the two notes together, a definition of what a
foreperson can do.
I’m going to respond to those as follows: Now, as to the very first
issue, whether you may impose the death penalty when you have not
found the Defendant guilty of murder. First of all, I’ve given you
thorough instructions on this area. It is your responsibility to recall in
its entirety the instructions I gave you.
Simply put, you may impose the death penalty if you find any of the
four alleged statutory aggravating circumstances, that they exist
beyond a reasonable doubt. Then you, the jury, may impose a life
sentence or a death sentence, consistent with those instructions that I
8
gave you in their entirety, with the definitions of what constitute the
alleged statutory aggravating circumstances, with the definitions of
considering aggravating and mitigating evidence, with all those
instructions and with the instruction of what beyond a reasonable
doubt means.
Okay. On the issue of whether to read the transcript of the jury
voir dire, I am not going to do that. Neither am I going to give you a
definition of perjury.
As to a definition of what a foreperson can do—and it’s a foreman, so
I’m just going to say foreman. The foreman is the elected leader of
the jury. His responsibilities are to lead the discussions and
deliberations of the jury and sign the appropriate forms. The law does
not closely define his conduct other than that—other than that.
Basically, the foreperson is the elected person responsible for leading
the deliberations, leading the discussion. In matters of voting, all
jurors stand the same.
A juror is responsible to participate in the jury deliberations. A juror
is supposed to listen to his or her fellow jurors. A juror is supposed to
vote their ideas and their positions. A juror is supposed to participate.
It is inappropriate for any juror to do anything other than fully
participate in jury deliberations. Mr. Abrams, have you all been
deliberating this morning at all?
THE FOREPERSON: Yes, ma’am.
THE COURT: Okay. With these instructions, I’m going to send you
back to further your deliberations. If you have further questions, write
me a note.
([15.24] at 29-31).
At 11:35 a.m., the jury resumed their deliberations. ([15.24] at 31).
At approximately 3:08 p.m., after a one-hour lunch break, the jury returned their
9
verdict, finding all of the statutory aggravating circumstances beyond a reasonable
doubt and recommending a sentence of death. ([15.24] at 32-36; [14.2] at 102107).2 The jury was then polled. Each juror affirmed, in court, that the verdict
announced was the verdict they reached, that it was still their verdict, and that it
was freely and voluntarily entered. ([15.24] at 37-46). The trial court adopted the
jury’s recommendation and sentenced Petitioner to death for his kidnapping with
bodily injury conviction. ([14.2] at 106-107). Petitioner was sentenced to life
imprisonment on the armed robbery charge. ([14.2] at 108).
C.
Petitioner’s Motion for a New Trial and his Direct Appeal
On October 14, 1993, Petitioner filed a motion for a new trial, which he later
amended. ([14.2] at 111). Petitioner’s motion argued, among other things, that
“the jury’s death verdict was impermissibly coerced,” and that “there was
misconduct on the part of jurors during the trial and sentencing deliberations.”
([14.4] at 29, 100). The trial court denied Petitioner’s motion on July 18, 1996.
([14.4] at 113). Petitioner appealed and, on December 3, 1997, the Georgia
2
The jury found, as aggravating circumstances, that Petitioner committed the
offense of kidnapping with bodily injury while he was engaged in the capital
felonies of armed robbery, rape and murder. The jury also found that Petitioner’s
commission of kidnapping with bodily injury was outrageously and wantonly vile,
horrible, and inhuman in that it involved torture, depravity of mind, and aggravated
battery. ([14.2] at 103-104).
10
Supreme Court affirmed Petitioner’s convictions but remanded to develop the
record on the alleged jury misconduct during sentencing. Sears v. State, 493
S.E.2d 180 (Ga. 1997).
On March 16 and 17, 1998, after Petitioner’s defense team interviewed
several members of the jury, including Angel Fisher (“Fisher”), the trial court held
an evidentiary hearing on Petitioner’s jury misconduct allegations. ([17.8]; [17.9]
at 52-53). Fisher was called to testify at the hearing. ([17.9] at 35).3 The trial
court ruled that Fisher could testify about the following topics:
1. “Express and specific acts of violence,” including “threats of
violence.” ([17.9] at 20).
2. “[O]vert acts of coercion.” ([17.9] at 20).
3. Juror Kenneth Makant’s “statements regarding the rape of his
daughter.” ([17.9] at 20).
4. Foreman Sanford Abrams’ alleged claim that Fisher should be
prosecuted for perjury. ([17.9] at 20).
Over Petitioner’s objections, the trial court, citing O.C.G.A.
§ 17-9-41,4 ruled that Fisher could not testify about:
3
Fisher, like Petitioner, is African-American. ([17.9] at 35). Two other
members of the jury were African-American, and one was Hispanic. ([17.9] at 73).
4
O.C.G.A. § 17-9-41, at the time, provided that “The affidavits of jurors may
be taken to sustain but not to impeach their verdict.” Effective January 1, 2013,
11
1. “[T]he internal working of the deliberations of the jury with
regard to the votes, the jury votes.” ([17.9] at 20).
2. Comments allegedly made by other jurors that “if [Fisher’s]
sentence decision was life that that would lead to a situation
where she or her sisters might be raped either by [Petitioner] or
by other people.” ([17.9] at 21-22).
Fisher testified that she holds a bachelor’s degree in criminal justice, that she
attended graduate school, that she works as a teacher, and that she previously
worked as a caseworker for Georgia’s Aid to Family with Dependent Children
program, where she handled “lots” of cases at a time. ([17.9] at 49-51). She stated
that, during the jury’s sentencing deliberations, she was the lone hold-out for a life
sentence. ([17.9] at 35-36). She said the foreman told her she “should be
prosecuted for perjury” because she “apparently . . . did not believe in the death
penalty” and thus must have “lied on voir dire.” ([17.9] at 36-37, 57). Fisher
testified that the foreman was “quite hostile” and that she was “afraid” because,
although she knew she had not committed perjury and the foreman was not a
lawyer, she believed “the system can be manipulated” and she “wasn’t sure” if
there was “some way” she could end up “on trial for perjury.” ([17.9] at 36-37,
56). Fisher testified that she wrote a note to the trial court because the foreman
O.C.G.A. § 17-9-41 was replaced by O.C.G.A. § 24-6-606, which closely tracks
Rule 606(b) of the Federal Rules of Evidence.
12
was “very abrasive” and “was just trying to tell [her] what to do,” which she
“didn’t think . . . was fair.” ([17.9] at 46). She believed “the note was ignored”
because she “didn’t hear a response” in the trial court’s instructions to the jury.
([17.9] at 46). She wanted the trial court to “directly address the problems [she]
was having with [the foreman].” ([17.9] at 70).
Fisher did not understand why the trial court instructed the jury to continue
their deliberations after the jury reported they were eleven-to-one in favor of the
death penalty: “To me, that was pressure that [the trial court] was saying to them
to do whatever you can to get her to change her mind and, to me, to change my
mind, that they wanted me—they wanted death.” ([17.9] at 75-76).
Fisher testified that she felt “singled out” in “a discussion [among the jury]
about what if your family member had been raped or if this had been done to one
of your family members.” ([17.9] at 41). Fisher stated:
They were yelling at me. One particular member said, I can’t believe
that you’re a teacher and you’re teaching our children with your
attitude. And they were just yelling. They were cursing. And, you
know, just—I don’t remember exactly, but I remembered being yelled
at basically because I was—they were angry at me. They wanted me
to change my mind. So they were insulting my character and things
like that.
([17.9] at 45). Fisher testified that she put Walkman headphones on to
“tune out” the other jurors during deliberations. ([17.9] at 61-62).
13
Fisher testified that she “changed [her] mind because [the other jurors]
had—I mean I was ostracized. And I was just—I was basically made to change
my mind by the other jury members.” ([17.9] at 61). She stated:
I thought that—that maybe they were all working together and maybe
that they wanted me—to me, I felt like I was pressured. I didn’t feel
like I had any support, that no one was, you know, helping me. So I
said, well, I just better change my mind because I see now that it
seemed to be one sided. So I said, well, hey, what am I to do. I sent
this note out, and I didn’t think it was addressed.
([17.9] at 70). Fisher stated that her perjury discussion with the foreman was
“part of the reason” she changed her mind and voted to sentence Petitioner to
death. ([17.9] at 37). She stated that “after all these years what was done was
wrong,” that “[t]he way they made [her] change [her] mind was wrong,” that she
was “basically bullied into changing [her] mind,” and that she is “sorry that [she]
rendered that decision” because she now thinks she “should [not] have given in to
the pressure from—the pressure from the other members of the jury.” ([17.9] at
63-64, 74-75). When asked about her feelings regarding the prosecution’s position
in this case, Fisher testified:
Sometimes I think that [the government] unfairly prosecute[s] black
men who kill white women because I think they—statistically, I think
people—prosecutors ask for the death penalty if it’s a black person
killing a white person. But if it’s a black person killing another black
person, a lot of times they don’t ask for the death penalty. And I think
that some people believe that a black life is not worth as much as a
white life.
14
([17.9] at 69).
In May 1998, the trial court denied Petitioner’s motion for a new trial and, in
August 1998, the case returned to the Georgia Supreme Court. ([17.11] at 7-8;
[17.13] at 6). On March 15, 1999, the Georgia Supreme Court affirmed
Petitioner’s death sentence after considering the “totality” of the evidence from the
trial and the evidentiary hearing. Sears v. State, 514 S.E.2d 426 (Ga. 1999). The
court found that the evidence did not establish juror misconduct, and that the trial
court did not coerce the jury to render a verdict of death. Id. at 432-434. On
October 12, 1999, the United States Supreme Court denied Petitioner’s petition for
a writ of certiorari. Sears v. Georgia, 528 U.S. 934 (1999).
D.
State Habeas Proceedings
On January 13, 2000, Petitioner filed his state habeas corpus petition in the
Superior Court of Butts County, Georgia. ([17.24]; [18.21]-[18.22]). On
January 9, 2008, the state court denied Petitioner’s request for habeas relief.
([18.25]-[21.1]; [21.12]). On September 28, 2009, the Georgia Supreme Court
denied Petitioner’s application for a certificate of probable cause to appeal the
denial of habeas relief. ([21.18]). On June 29, 2010, the United States Supreme
Court issued its writ of certiorari and remanded the case on the grounds that the
state habeas court “failed to apply the correct prejudice inquiry” in evaluating
15
whether Petitioner’s counsel had been ineffective under Strickland v. Washington,
466 U.S. 668 (1984). Sears v. Upton, 561 U.S. 945, 946 (2010).5 On
August 15, 2011, the state habeas court again denied relief. ([21.36). On
November 18, 2013, the Georgia Supreme Court affirmed the denial of relief.
Sears v. Humphrey, 751 S.E.2d 365 (Ga. 2013). On May 19, 2014, the United
States Supreme Court denied Petitioner’s petition for writ of certiorari.
Sears v. Chatman, 134 S. Ct. 2292 (2014).
E.
Federal Habeas Proceedings
On June 25, 2010, Petitioner filed his Initial Petition for a Writ of Habeas
Corpus by a Person in State Custody [1]. On August 4, 2014, Petitioner filed his
First Amended Petition for Writ of Habeas Corpus by a Person in State
Custody [28] (“Amended Federal Habeas Petition”), asserting a total of fifteen
claims, many with subparts. ([28]). On April 8, 2016, the Court dismissed several
of Petitioner’s claims on the grounds that they are procedurally barred or not
cognizable on federal habeas review. ([37]).
On May 9, 2016, Petitioner filed his Motions for Discovery and an
Evidentiary Hearing [38]. Petitioner seeks an evidentiary hearing or discovery on
5
The grounds for the Supreme Court’s decision are not relevant to
Petitioner’s Motions for Discovery and an Evidentiary Hearing [38].
16
Claims III and IV of his Amended Federal Habeas Petition, which assert (i) that
Fisher “was coerced into voting for a death sentence by her fellow jurors’
extortionate and threatening behavior during deliberations” (Claim III), and
(ii) that “the trial court violated [Petitioner’s] rights to a fair trial, due process, and
the uncoerced verdict of his jury when the court repeatedly instructed the jurors to
continue to deliberate toward a verdict in the face of a deadlock” (Claim IV). ([38]
at 1; [28] at 75, 82). Petitioner requests an evidentiary hearing or discovery to
develop Fisher’s testimony without the limitations imposed by the trial court
during the March 1998 evidentiary hearing. ([38] at 4-5).
On April 24, 2017, the Court found that Petitioner is required to satisfy
28 U.S.C. § 2254(d) before he is allowed an evidentiary hearing or discovery on
Claims III and IV, which were previously adjudicated on the merits in state court.
([49] at 13, 16). In May 2017, the parties filed briefs addressing whether the state
court’s adjudication of Claims III and IV “was based on an unreasonable
determination of the facts” or “was contrary to, or involved an unreasonable
application of, clearly established Federal law.” 28 U.S.C. § 2254(d).
17
II.
DISCUSSION
A.
Legal Standard Under 28 U.S.C. § 2254(d)
A habeas petitioner must satisfy section 2254(d) before he is allowed
discovery or an evidentiary hearing on claims previously adjudicated on the merits
in state court. Landers v. Warden, Atty. Gen. of Ala., 776 F.3d 1288, 1295 (11th
Cir. 2015). Section 2254(d) provides:
(d) 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
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d).
Under subsection 2254(d)(1), “[t]he statutory phrase ‘clearly established
Federal law’ refers only to the holdings, as opposed to the dicta, of the Supreme
Court’s decisions as of the time of the relevant state-court decision.”
Heath v. Sec’y, Florida Dep’t of Corr., 717 F.3d 1202, 1204 (11th Cir. 2013).
“A state court decision is ‘contrary to’ such law if the state court arrives at a
conclusion opposite to that reached by the Supreme Court on a question of law or
18
if the state court decides a case differently than the Supreme Court has on a set of
materially indistinguishable facts.” Id. A state court decision involves an
“unreasonable application” of clearly established federal law if the state court
(1) “identifies the correct governing legal rule from the Supreme Court’s cases but
unreasonably applies it to the facts of the particular state prisoner’s case,” or
(2) “either unreasonably extends a legal principle from Supreme Court precedent to
a new context where it should not apply or unreasonably refuses to extend that
principle to a new context where it should apply.” Madison v. Comm’r, Alabama
Dep’t of Corr., 851 F.3d 1173, 1182 (11th Cir. 2017). “The ‘unreasonable
application’ inquiry focuses on whether the state court’s application of Supreme
Court precedent was objectively unreasonable, which requires the state court
decision to be more than incorrect or erroneous.” Id. “[E]ven clear error will not
suffice.” White v. Woodall, 134 S. Ct. 1697, 1702 (2014); see Everett v. Sec’y,
Florida Dep’t of Corr., 779 F.3d 1212, 1239 (11th Cir. 2015) (“[E]ven a strong
case for relief does not mean the state court’s contrary conclusion was
unreasonable.”). “Under § 2254(d)(1), a state prisoner must show that the state
court’s ruling on the claim being presented in federal court was so lacking in
justification that there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.” White v. Wheeler, 136
19
S. Ct. 456, 460 (2015). “As long as some fairminded jurists could agree with the
state court’s decision, although others might disagree, federal habeas relief must be
denied.” Everett, 779 F.3d at 1239.
Section 2254(d)(2) permits relief where the state court adjudication “resulted
in a decision that was based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2).
“The question under [this provision] is not whether a federal court believes the
state court’s determination was incorrect but whether that determination was
unreasonable—a substantially higher threshold.” Schriro v. Landrigan, 550 U.S.
465, 473 (2007). The state court’s factual findings are entitled to “substantial
deference,” and will not be disturbed if “reasonable minds reviewing the record
might disagree about the finding in question.” Brumfield v. Cain, 135 S. Ct. 2269,
2277 (2015). “[A] state-court factual determination is not unreasonable merely
because the federal habeas court would have reached a different conclusion in the
first instance.” Burt v. Titlow, 134 S. Ct. 10, 15 (2013). “To be unreasonable, the
error in the state court’s finding must be so clear that there is no possibility for
fairminded disagreement.” Holsey v. Warden, Georgia Diagnostic Prison, 694
F.3d 1230, 1260 (11th Cir. 2012).
20
Section 2254(d)’s requirements are “difficult to meet,” Woodall, 134 S. Ct.
at 1702, and “erect[] a formidable barrier to federal habeas relief for prisoners
whose claims have been adjudicated in state court,” Wheeler, 136 S. Ct. at 460.
The provision reflects a “highly deferential standard” and “demands that the
petitioner carries the burden of proof, and that state-court decisions be given the
benefit of the doubt.” Everett, 779 F.3d at 1239. “The significant deference under
§ 2254(d) owed by the federal courts to state courts’ decisions is rooted in [the
statute’s] commitment to comity, federalism, and the finality of judgments.”
Tharpe v. Warden, 834 F.3d 1323, 1338 (11th Cir. 2016); see Holsey, 694 F.3d at
1257 (“[Section 2254(d)] was designed to be difficult in order to ensure that
state-court judgments are accorded the finality and respect necessary to preserve
the integrity of legal proceedings within our system of federalism.”).
Section 2254(d) permits relief only in exceptional circumstances because federal
habeas review “disturbs the State’s significant interest in repose for concluded
litigation, denies society the right to punish some admitted offenders, and intrudes
on state sovereignty to a degree matched by few exercises of federal judicial
authority.” Harrington v. Richter, 562 U.S. 86, 103 (2011).
21
B.
Petitioner’s Claim IV
Claim IV asserts that the trial court coerced the jury to render a verdict of
death. (See [51] at 10). Specifically, Petitioner claims “the trial court’s Romine
charge, insufficient curative instructions [after receiving Fisher’s note], and failure
to impose a life sentence on the basis of a deadlock as to penalty denied Petitioner
due process, a fair and impartial jury and a reliable determination of sentence.”
([28] at 82). Petitioner argues that the Georgia Supreme Court’s denial of this
claim was based on unreasonable factual determinations and an unreasonable
application of Lowenfield v. Phelps, 484 U.S. 231 (1988). ([28] at 85; [51] at 19).6
In Lowenfield, the jury informed the trial court that they were unable to
reach a decision after deliberating for approximately one day. Lowenfield,
484 U.S. at 234. The trial court, in response, polled the jury, asking “Do you feel
that any further deliberations will enable you to arrive at a verdict?” Id. Eleven
jurors answered in the affirmative, and one juror answered in the negative. Id.
The trial court instructed the jury to continue their deliberations:
6
Petitioner’s reliance on Jenkins v. United States, 380 U.S. 445 (1965) is
misplaced because Jenkins does not apply to the section 2254(d) analysis. See
Early v. Packer, 537 U.S. 3, 10 (2002) (stating that Jenkins is “off the table as far
as § 2254(d) is concerned” because it does not “set[] forth a rule applicable to
state-court proceedings”).
22
Ladies and Gentlemen, as I instructed you earlier if the jury is unable
to unanimously agree on a recommendation the Court shall impose the
sentence of Life Imprisonment without benefit of Probation, Parole, or
Suspension of Sentence.
When you enter the jury room it is your duty to consult with one
another to consider each other’s views and to discuss the evidence
with the objective of reaching a just verdict if you can do so without
violence to that individual judgment.
Each of you must decide the case for yourself but only after
discussion and impartial consideration of the case with your fellow
jurors. You are not advocates for one side or the other. Do not
hesitate to reexamine your own views and to change your opinion if
you are convinced you are wrong but do not surrender your honest
belief as to the weight and effect of evidence solely because of the
opinion of your fellow jurors or for the mere purpose of returning a
verdict.
Id. at 235. Thirty minutes after this instruction was provided, the jury returned a
death sentence verdict. The Supreme Court held that, “under all the
circumstances,” “the combination of the polling of the jury and the supplemental
instruction was not ‘coercive’ in such a way as to deny petitioner any constitutional
right.” Id. at 237, 241. The court stated:
The very object of the jury system is to secure unanimity by a
comparison of views, and by arguments among the jurors themselves.
It certainly cannot be the law that each juror should not listen with
deference to the arguments and with a distrust of his own judgment, if
he finds a large majority of the jury taking a different view of the case
from what he does himself.
Id. at 237.
23
At the time of Petitioner’s direct appeal, Lowenfield was the only Supreme
Court decision addressing the constitutional rule against coercive jury instructions.
See Wong v. Smith, 131 S. Ct. 10, 11 (2010) (Alito, J., dissenting) (“Just one of
this Court’s decisions, Lowenfield v. Phelps, 484 U.S. 231, 108 S. Ct. 546, 98
L.Ed.2d 568 (1988), has addressed the constitutional rule against coercive jury
instructions.”).7 “As a result, the clearly established law in this area provides very
little specific guidance. About all that can be said is that coercive instructions are
unconstitutional, coerciveness must be judged on the totality of the circumstances,
and the facts of Lowenfield (polling a deadlocked jury and reading a slightly
modified Allen charge) were not unconstitutionally coercive.” Id. at 11-12.
“A general standard such as this gives state courts wide latitude for reasonable
decisionmaking under [section 2254(d)].” Id.; see Yarborough v. Alvarado, 541
U.S. 652, 664 (2004) (“The more general the rule, the more leeway courts have in
reaching outcomes in case-by-case determinations”).
This latitude was illustrated in Early v. Packer, 537 U.S. 3 (2002), which
was decided after Petitioner’s direct appeal. In Packer, “[a]fter 28 hours of
deliberation, and after the jury had returned sealed verdict forms on all the other
7
Justice Alito issued the only written opinion in Wong, dissenting from the
Supreme Court’s summary denial of certiorari. Justice Scalia and Chief Justice
Roberts joined in Justice Alito’s opinion.
24
charges,” a juror, Eve Radcliff, asked to be excused due to “health problems.” Id.
at 4. The trial judge met alone with the juror, and asked her to “hold out just a
little bit longer” because “[o]therwise, [the jury] have to start deliberations all over
again with another person.” Id. The juror agreed to continue. “The next day, the
foreman sent the judge a note stating that ‘we can no longer deliberate,’ that
‘Eve Radcliff does not appear to be able to understand the rules as given by you,’
that ‘nearly all my fellow jurors question her ability to understand the rules and her
ability to reason,’ and that continuing will result in a ‘hung jury based on one
person’s inability to reason or desire to be unreasonable.’” Id. The judge called
the jury into the courtroom, read the note aloud, and asked what the latest vote
count was. The foreman replied the vote was 11 to 1. The judge said that jurors
“have a right to disagree with everybody else” but that “[t]hey must deliberate and
follow the rules and laws as I state it to them.” Id. at 5. The judge instructed the
jury on how to find the elements of the crime, stating that “if [the defendant meets
the elements of the offense] and you find unanimously they did that, you must
follow the law and find them either guilty or not guilty of that charge.” Id.
When the jury resumed their deliberations, juror Radcliff sent the judge
another note asking to be dismissed from the jury. The note “complained about
‘feelings of distrust and disrespect from the other jurors,’ and said that ‘I have
25
reached a point of anger, and I don’t believe I can be objective.’” Id. at 6. The
judge again met alone with Radcliff and asked her if she was continuing to
deliberate. Radcliff said she was “trying, but not to the satisfaction of the others.”
Id. The judge sent her back to the jury room, and then met briefly with the
foreman to confirm Radcliff was participating in the deliberations. Days later, the
jury returned a guilty verdict on two murder counts.
The state court found that the trial court’s actions were not coercive, and the
defendant sought federal habeas relief under section 2254. The Ninth Circuit
granted relief and the Supreme Court reversed, stating “[e]ven if we agreed with
the Ninth Circuit majority . . . that there was jury coercion here, it is at least
reasonable to conclude that there was not, which means that the state court’s
determination to that effect must stand.” Id. at 11.
The Court considers whether, in light of this authority, the Georgia Supreme
Court’s adjudication of Claim IV was based on an unreasonable application of
Lowenfield or on unreasonable determinations of fact.
1.
The Trial Court’s Failure to Find the Jury Deadlocked
Petitioner first argues that “[t]he trial court’s failure to adjourn jury
deliberations in light of an insurmountable deadlock and impose a life sentence on
the basis of the jury’s non-unanimous verdict was erroneous and violated
26
Petitioner’s constitutional rights.” ([28] at 83). “The Supreme Court held long ago
that a trial court may instruct a deadlocked jury to keep deliberating,” even in
capital cases. United States v. Davis, 779 F.3d 1305, 1312 (11th Cir. 2015); see
Jones v. United States, 527 U.S. 373, 382 n.5 (1999) (“We have . . . approved of
the use of a supplemental charge to encourage a jury reporting itself as deadlocked
to engage in further deliberations, even capital sentencing juries.” (citation
omitted)). “It is not only permissible but proper for a trial judge to ask a jury to
continue deliberating if it appears that further deliberation might be fruitful in
helping the jury reach a unanimous verdict.” Coleman v. Quarterman, 456 F.3d
537, 548 (5th Cir. 2006). “A [trial] court has broad discretion in this area but must
not coerce any juror to give up an honest belief.” Davis, 779 F.3d at 1312.
Whether a trial court’s instructions are coercive depends on the totality of the
circumstances. See Lowenfield, 484 U.S. at 237. “An instruction which appears
to give a jury no choice but to return a verdict is impermissibly coercive.”
United States v. Jones, 504 F.3d 1218, 1219 (11th Cir. 2007).
On September 24, 1993, after approximately six hours of sentencing
deliberations, the jury told the trial court they were “at an eleven-one deadlock in
favor of the death penalty,” and asked how to “complete the verdict as to
sentencing.” ([15.23] at 22). The trial court instructed the jury to continue their
27
deliberations because they had “only been deliberating on th[e] case for six hours.”
([15.23] at 25). The court stated, “I’m not putting any pressure on you to [do]
anything one way or another. Whatever your decision is, that’s you[r] decision.”
([15.23] at 25). Three hours later, the jury informed the trial court that they
remained deadlocked and that there was “no hope of resolution.” ([15.23] at 27).
The court issued a Romine charge, instructing the jury to continue their
deliberations. ([15.23] at 30-31). The jury returned their verdict approximately
five hours later.
The Georgia Supreme Court found that the trial court’s instructions to
continue deliberations were not coercive:
Although the jury twice stated that it was at an eleven to one
“deadlock,” the trial court was not bound by those pronouncements.
Todd v. State, 243 Ga. 539, 542, 255 S.E.2d 5 (1979) (court is not
required to accept jury’s feeling that it is “hopelessly deadlocked”).
On the contrary, the trial court, in the exercise of a sound discretion,
was required to make its own determination as to whether further
deliberations were in order. Romine, supra at 524, 350 S.E.2d 446.
The jury first indicated it was deadlocked after only six hours of
deliberation. And it announced it was deadlocked again, after just
another three hours. We cannot say that the trial court abused its
discretion in requiring the jury to deliberate further, see United
States v. Kramer, 73 F.3d 1067 (11th Cir. 1996) (jury not deadlocked
after deliberating seven days); Holt v. State, 192 Ga. App. 708, 709,
385 S.E.2d 787 (1989) (jury not deadlocked after four days, “more
time than it had taken to try the case”), especially since, after the
second announcement of a “deadlock,” the jury deliberated more than
five hours before reaching a verdict. See Allen v. State, 260 Ga. 147,
28
148, 390 S.E.2d 848 (1990) (fact that Allen charge was not coercive
can be inferred from length of time jury continues to deliberate);
United States v. Norton, supra (lapse of four hours following Allen
charge suggests absence of coercion).
Sears, 514 S.E.2d at 432.
Petitioner has not shown that the Georgia Supreme Court’s determinations
were unreasonable under section 2254(d). The trial court declined to find the jury
deadlocked after only six or nine hours of deliberations. Fisher refused to
participate in some of these deliberations. ([15.24] at 21). “[T]he length of time of
jury deliberations is a matter of trial court discretion,” United States v. White, 589
F.2d 1283, 1290 (5th Cir. 1979), and courts routinely uphold instructions to
continue jury deliberations under more extreme circumstances than those in this
case. See Packer, 537 U.S. 3 (finding that the trial court’s instruction to continue
deliberations was not coercive where, after more than 28 hours of deliberations, the
jury stated “we can no longer deliberate . . . and that continuing will result in a
hung jury”); United States v. Kramer, 73 F.3d 1067, 1072 (11th Cir. 1996) (finding
that an Allen charge was not coercive where the jury informed the trial court, after
seven days of deliberations, that they were unable to reach a unanimous verdict);
United States v. Smalls, 342 F. App’x 505, 508, 510 (11th Cir. 2009) (finding that
the trial court’s instructions to continue deliberations were not coercive where,
29
over the course of three days, the jury twice informed the court that they could not
agree on a verdict).
Although the jury described itself as deadlocked, “the court is not required to
accept the jury’s pronouncement of a deadlock but must instead make its own
determination.” 23A Corpus Juris Secundum Criminal Procedure and Rights of
the Accused § 1938 (June 2017 Update); see United States v. Kelley, 187 F. App’x
876, 882 (10th Cir. 2006) (“[A] court is not required to accept the judgment of a
jury that is hopelessly deadlocked, and may require it to continue deliberating.”);
2A Charles Alan Wright et al., Fed. Prac. & Proc. Crim. § 504 (4th ed. Apr. 2017
Update) (same). The trial court’s determination that the jury had not reached a
verdict was reasonable in light of the limited duration of their deliberations. See
Davis, 779 F.3d at 1313 (“Some jurors deliberate for days before saying they are
deadlocked. Others, like these, deliberate for only a few hours. Telling jurors who
have deliberated for only a few hours to keep trying is not inherently coercive.”);
see also Lowenfield, 484 U.S. at 238 (stating that courts, in capital cases,
“incontestably” may insist on further deliberations where the jury reports it is
unable to achieve a unanimous verdict after deliberating for a short period). The
jury also deliberated for approximately five hours after the court’s instructions,
“a time period not suggestive of a coercive or pressure-filled atmosphere.” United
30
States v. Norton, 867 F.2d 1354, 1366 (11th Cir. 1989) (finding that four hours of
additional deliberation suggests a lack of coercion). The Court notes further that,
after the verdict, each juror, including Fisher, stated that the verdict announced was
their verdict, that they entered it voluntarily and that it still was their verdict.
([15.24] at 37-46). The Court, having weighed the totality of the circumstances,
finds that the Georgia Supreme Court had a sufficient basis to properly conclude
that the trial court’s instructions to the jury to continue their deliberations were not
coercive.
2.
The Trial Court’s Romine Charge
Petitioner next argues that the trial court’s Romine charge was coercive.
([28] at 82, 84). “A Romine charge is the Georgia state-law equivalent of a federal
Allen charge.” Jones v. GDCP Warden, 815 F.3d 689, 706 (11th Cir. 2016). In
Allen v. United States, 164 U.S. 492 (1896), the United States Supreme Court
approved the following supplemental instructions, known as an “Allen charge,” for
use in death penalty cases where the jury is deadlocked:
[I]n a large proportion of cases absolute certainty could not be
expected; that, although the verdict must be the verdict of each
individual juror, and not a mere acquiescence in the conclusion of his
fellows, yet they should examine the question submitted with candor,
and with a proper regard and deference to the opinions of each other;
that it was their duty to decide the case if they could conscientiously
do so; that they should listen, with a disposition to be convinced, to
each other’s arguments; that, if much the larger number were for
31
conviction, a dissenting juror should consider whether his doubt was a
reasonable one which made no impression upon the minds of so many
men, equally honest, equally intelligent with himself. If, []on the
other hand, the majority were for acquittal, the minority ought to ask
themselves whether they might not reasonably doubt the correctness
of a judgment which was not concurred in by the majority.”
Id. at 501. An Allen charge is permissible unless the totality of the circumstances
shows it was coercive. See Lowenfield, 484 U.S. at 237 (finding a modified Allen
charge was not coercive under the totality of the circumstances); United
States v. Woodard, 531 F.3d 1352, 1364 (11th Cir. 2008) (“In assessing whether
the [Allen] charge was coercive, we consider the language of the charge and the
totality of the circumstances under which it was delivered.”). Relevant
circumstances include “(1) whether the charge instructed the jurors that they are
not expected to give up their honest beliefs about the weight of the evidence;
(2) whether the jury was polled before the charge was given; (3) whether the
charge was given after a second notification from the jury that there was difficulty
reaching a verdict; and (4) the amount of time between giving the charge and the
announcement of the verdict.” United States v. Jones, 518 F. App’x 741, 743 (11th
Cir. 2013) (citing Woodard, 531 F.3d at 1364); see Davis, 779 F.3d at 1312
(approving the list of factors set out in Jones).
On September 24, 1993, the trial court issued the following Romine charge
to the jury after the jury stated they were deadlocked:
32
I’ve received your note. And in light of your note, I believe it’s
appropriate to give you some further instructions at this time. You’ve
been deliberating a while, and I deem it proper to advise you further in
regards to the desirability of agreement, if possible.
This case has been exhaustively and carefully tried by both sides. It
has been submitted to you for a decision and verdict, if possible.
While the verdict must be the conclusion of each juror, and not a mere
acquiescence of the jurors in order to reach an agreement, it is still
necessary for all of the jurors to examine the issues and questions
submitted to them with candor and fairness and with proper regard
and deference to the opinion of each other. A proper regard for the
judgments of others will greatly aid us in forming our own judgments.
Each juror should listen to the arguments of other jurors. If the
members of the jury differ in their views of the evidence, or the
mitigating or aggravating circumstances, such differences of opinion
should cause them all to scrutinize the evidence more closely and to
re-examine the grounds of their opinion. It’s your duty to decide the
issues that have been submitted to you, if you can conscientiously do
so. Do not hesitate to change an opinion if you become convinced it’s
wrong. However, you should never surrender honest convictions or
opinions in order to be congenial or reach a verdict solely because of
the opinions of other jurors.
Members of the jury, the aim ever to be kept in view is the truth as it
appears from the evidence, examined in the light of the instructions of
the Court.
([15.23] at 30-31).
The Georgia Supreme Court found that the trial court’s instructions were not
coercive:
Although the trial court gave a modified Allen charge
(see Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528
(1896); Romine v. State, 256 Ga. 521, 350 S.E.2d 446 (1986)), it
cannot be said that that charge was coercive. The court made it clear
33
that, although the jurors should consider the opinions of other jurors,
they must never surrender their honest opinions for the sake of
expediency. See Romine, supra; cf. Riggins v. State, 226 Ga. 381,
384, 174 S.E.2d 908 (1970) (trial court remarked that some jurors
were “being a little unreasonable, stubborn”).
The trial court’s other instructions, urging the jury to reach a
consensus, and to participate in the deliberations, were not coercive
either. They did not put pressure on the jurors “one way or the other,”
see Romine, supra at 525, 350 S.E.2d 446; they did not exhort
“the minority to reexamine its views in deference to the majority, or to
suggest that the majority’s position is correct.” United
States v. Norton, 867 F.2d 1354, 1366 (11th Cir.1989). Nor did they
urge the jurors “to abandon an honest conviction for reasons other
than those based upon the trial or the arguments of other jurors.
[Cit.]” Harris v. State, 263 Ga. 526, 528, 435 S.E.2d 669
(1993). . . . Moreover, it cannot be said that the verdict was coerced
simply because the trial court gave a modified Allen charge after the
jury revealed its numerical division (11-1 in favor of the death
penalty). See [Norton, 867 F.2d 1354]; Sanders v. United States, 415
F.2d 621, 631-32 (5th Cir. 1969) (court should not be precluded from
giving Allen charge because jury volunteered nature and extent of its
division).
Sears, 514 S.E.2d at 432-33.
Petitioner has not shown that the state court’s conclusions were
unreasonable under section 2254(d). The trial court gave the Romine charge after
the jury’s second statement that they were deadlocked, and after the jury had
deliberated for approximately nine hours. See United States v. Bethel, 604 F.
App’x 829, 831 (11th Cir. 2015) (“The timing of the charge was not inherently
coercive. The jury had deliberated for approximately five and a half hours before
34
the charge was issued, and the jury informed the court twice that it could not reach
a unanimous verdict.”); United States v. Bailey, 468 F.2d 652, 664 (5th Cir. 1972)
(finding that giving an Allen charge 3.5 hours after deliberations began was not
“improperly precipitous” and noting that a charge 1.5 hours into deliberations did
not imply coercion). The trial court’s Romine charge was substantially similar to
the instructions approved by the Supreme Court in Allen. See Lowenfield , 484
U.S. at 237 (“The continuing validity of this Court’s observations in Allen are
beyond dispute.”); cf. Davis, 779 F.3d at 1312 (stating that “the law of the circuit
approves” Allen charges); United States v. Elkins, 885 F.2d 775, 783 (11th Cir.
1989).
The trial court protected against coercion by stating (1) “the verdict must be
the conclusion of each juror, and not a mere acquiescence of the jurors in order to
reach an agreement,” (2) a juror “should never surrender honest convictions or
opinions in order to be congenial or reach a verdict solely because of the opinions
of other jurors,” and (3) “the aim ever to be kept in view is the truth as it appears
from the evidence.” See United States v. Douglas, 572 F. App’x 876, 877-78 (11th
Cir. 2014) (“[A]n Allen charge is not coercive where the district court specifically
states to the jury that no juror is expected to give up his or her honest belief
regarding the evidence.”); see also Davis, 779 F.3d at 1313 (noting that a jury
35
instruction had “elements that protected against coercion,” including a statement
that jurors should “not . . . give up an honest belief”). The court’s instruction “did
not contain any of the elements of the Allen instruction held to be most
troublesome: the suggestions that a juror should not trust her own opinions in
deliberation or that a member of the jury who found herself in the minority should
reexamine her position.” United States v. Watchmaker, 761 F.2d 1459, 1465 (11th
Cir. 1985).
The jury deliberated for approximately five hours after the Allen charge,
indicating that the charge was not coercive. See Bethel, 604 F. App’x at 831
(“[T]he jury deliberated for three hours after the Allen charge, indicating that the
charge was not really coercive.”). Although the jury, without prompting, disclosed
their 11-to-1 vote in favor of the death penalty, this did not preclude the trial court
from issuing the Romine charge. See Elkins, 885 F.2d at 784 (finding an Allen
charge was not coercive where the judge “was aware of the split in the vote,”
including because the court “did not request that information”); Sanders v. United
States, 415 F.2d 621, 631-32 (5th Cir. 1969) (“The fact that the jury contrary to the
instructions of the court volunteered to the court the extent of their division and
which way they stood is no reason why the court should be precluded from giving
an otherwise proper Allen charge.”); see also United States v. Brokemond, 959
36
F.2d 206, 209 (11th Cir. 1992) (“Unsolicited disclosure of the jury’s division by a
juror is not by itself grounds for a mistrial.”); cf. Norton, 867 F.2d at 1365-66
(“Reversal may not be necessary even where the trial judge undertakes the inquiry
[into the jury’s vote] and thereafter follows it with an Allen charge, absent a
showing that either incident or a combination of the two was inherently
coercive.”). Having considered the language in the Romine charge and the totality
of the circumstances, the Court finds that the Georgia Supreme Court reasonably
concluded the charge was not constitutionally coercive.8
8
Petitioner complains that the Romine charge referred to “the desirability of
agreement if possible” and “admonished the jury that it had a duty to reach a
decision if possible.” ([28] at 82, 84; [51] at 10-11). The trial court was permitted
to include this language in its instruction, including because Georgia has “a strong
interest” in obtaining a unanimous jury verdict in capital sentencing proceedings.
Lowenfield, 484 U.S. at 238; see Jones, 527 U.S. at 382 (“[W]e have long been of
the view that the very object of the jury system is to secure unanimity by a
comparison of views, and by arguments among the jurors themselves.”); United
States v. Rey, 811 F.2d 1453, 1461 (11th Cir. 1987) (upholding an Allen charge
that stated “it’s your duty to agree upon a verdict if you can do so”);
Cornell v. State of Iowa, 628 F.2d 1044, 1046 (8th Cir. 1980) (upholding an Allen
charge that referenced “the desirability of agreement if possible”);
Walker v. United States, 342 F.2d 22, 26 (5th Cir. 1965) (noting that an Allen
charge is intended, in part, to communicate “the desirability of agreement”). The
Court notes that the trial judge repeatedly stated that a unanimous verdict should be
reached only “if possible.” This negates the coercion claimed by Petitioner, and
shows the court acknowledged the possibility a unanimous decision might not be
reached. Petitioner also complains that, in stating that the “case has been
exhaustively and carefully tried by both sides,” the trial court “improperly
indicated that the inability to reach a unanimous verdict would result in a new
37
3.
The Trial Court’s Response to Fisher’s Note
Petitioner argues that the trial court’s response to Fisher’s note was coercive
because the court failed to “protect Ms. Fisher from her fellow jurors’ misconduct”
and “did nothing to ensure that each juror voted his conscience and was not
influenced by improper considerations.” ([28] at 83, 85). On the third day of the
jury’s deliberations, the foreman sent a note to the trial judge, requesting a
definition of perjury and a transcript of the jurors’ statements, during voir dire, “as
to their position on the death penalty.” Fisher also sent a note to the judge,
complaining about the conduct of the foreman:
I am concerned about the actions of the foreman of this jury. This
letter is in reference to the foreman’s most recent letter to you.
Mr. Abrams wrote this letter prior to our jury deliberations today.
He informed us that he was submitting the letter to you whether we
wanted him to or not. I don’t think this type behavior [sic] is
appropriate for a foreman. I will not sit on a jury where I am singled
out. I am not being treated fairly in this deliberating process. I am
also being singled out by the foreman—and, I guess, also—he is
overstepping his boundaries as a foreman of the jury. To my
understanding, a foreman should be a leader, not a dictator. Please
trial.” ([28] at 84). Petitioner’s conclusion requires several inferential leaps not
supported by the remainder of the charge. The trial court’s references to the
desirability of agreement and to the careful trying of the case were not “partial or
one-sided, as neither would lead a reasonable juror to believe that either the
majority’s or minority’s views on the evidence were correct.” Douglas, 572 F.
App’x at 878. “[N]either of the challenged comments expressed to the jurors that
they had no choice but to return a verdict.” Id.
38
explain the duties and responsibilities of a jury foreman. Should he be
able—question a juror’s response to the Court during jury selection?
([15.24] at 10-12).
The trial court instructed the jury on the responsibilities of the foreman, but
declined to provide a voir dire transcript or a definition of perjury:
On the issue of whether to read the transcript of the jury voir dire, I
am not going to do that. Neither am I going to give you a definition
of perjury. . . . The foreman is the elected leader of the jury. His
responsibilities are to lead the discussions and deliberations of the jury
and sign the appropriate forms. The law does not closely define his
conduct other than that—other than that. Basically, the foreperson is
the elected person responsible for leading the deliberations, leading
the discussion. In matters of voting, all jurors stand the same. A juror
is responsible to participate in the jury deliberations. A juror is
supposed to listen to his or her fellow jurors. A juror is supposed to
vote their ideas and their positions. A juror is supposed to participate.
It is inappropriate for any juror to do anything other than fully
participate in jury deliberations. . . . With these instructions, I’m
going to send you back to further your deliberations.
([15.24] at 29-31). The jury returned their verdict approximately three hours after
the trial court’s instruction.
The Georgia Supreme Court found that the trial court’s response to Fisher’s
note was not coercive. Sears, 514 S.E.2d at 432. Petitioner has not shown this
conclusion was unreasonable under section 2254(d). The notes provided by Fisher
and the foreman informed the judge (1) that Fisher was the lone hold-out juror,
(2) that the foreman likely had accused Fisher of perjury because he believed she
39
would not vote for a death sentence under any circumstances, and (3) that Fisher
felt “singled out” by the foreman during the jury’s deliberations. This information
did not require the trial court judge to inquire further into the jury’s discussions,
including because the notes conveyed tensions and disagreements that generally
are part of the deliberation process. See United States v. Trucchio, No. 8:04-cr348-T-24, 2007 WL 45571, at *3 (M.D. Fla. Jan. 5, 2007), aff’d, 273 F. App’x 836
(11th Cir. 2008) (“What Juror # 3 complains about—anger, frustration,
disagreements, emotional reactions—are often part of the give and take of the
deliberation process and intrinsic influences.”); see also United States v. Knight,
58 F.3d 393, 396 (8th Cir. 1995) (“Jury duty can be unpleasant, but difficult,
one-sided debate in the jury room does not require a mistrial.”); Norton, 867 F.2d
at 1366 (declining to “find error in the trial judge’s decision not to question the
juror regarding the ‘duress’ he may have experienced during jury deliberations”).
The note was Fisher’s first and only complaint about another juror, and it did not
express concerns about members of the jury other than the foreman.
The trial court adequately protected against coercion by stating that “all
jurors stand the same” and that each juror should “vote their ideas and their
positions.” That the trial court declined to provide the jury with a perjury
definition or voir dire transcript also signaled to the jury that the perjury issue was
40
insignificant and irrelevant to their deliberations. The trial court had emphasized,
only one day earlier, that (1) “the verdict must be the conclusion of each juror, and
not a mere acquiescence of the jurors in order to reach an agreement,” and (2) a
juror “should never surrender honest convictions or opinions in order to be
congenial or reach a verdict solely because of the opinions of other jurors.” See
Spears v. Greiner, 459 F.3d 200, 206 (2d Cir. 2006) (finding a supplemental
instruction non-coercive even though it did not include cautionary language,
including because “the original charge, given to the jury earlier that day, did
include cautionary language telling jurors that they had a right to stick to their
arguments and stand up for their own strong opinions”); Santana v. Artus, No. 06cv-7774, 2009 WL 6382488, at *19 (S.D.N.Y. July 1, 2009) (same). “[T]he jury
deliberated for three hours after the [trial court’s instruction], indicating that the
charge was not really coercive.” Bethel, 604 F. App’x at 831. The Georgia
Supreme Court was permitted, under section 2254(d), to find that the trial court’s
response to Fisher’s note was not coercive. Petitioner’s motion for discovery or an
evidentiary hearing on Claim IV is denied because Petitioner has not shown the
state court’s adjudication of this claim was unreasonable under section 2254(d).
41
C.
Petitioner’s Claim III
Claim III asserts that Fisher “was coerced into voting for the death penalty
by her fellow jurors’ extortionate and threatening behavior,” in violation of
Petitioner’s constitutional rights. ([28] at 75). Petitioner argues that the Georgia
Supreme Court’s adjudication of this claim was based on unreasonable factual
determinations and on an unreasonable application of Lowenfield, 484 U.S. 231.
([28] at 80; [51] at 2, 16). In denying Petitioner’s claim that Fisher was coerced to
vote for the death penalty, the Georgia Supreme Court stated:
Fisher, a school teacher, had a bachelor’s degree in criminal justice
and had attended graduate school. She was the lone holdout for a life
sentence—until she changed her mind. Although she testified that she
felt bullied by the threat of perjury, she knew that she had not lied
under oath. She felt intense pressure from the other jurors.
(“I remember being yelled at basically because I was—they were
angry at me. They wanted me to change my mind. So they were
insulting my character and things like that.”) Ultimately, she gave in
to that pressure. (“I changed my mind because they had—I mean I
was ostracized. And I was just—I was basically made to change my
mind by the other jury members.”) Viewing Fisher’s testimony as a
whole, it is clear that she voted for the death penalty because she felt
pressured to do so only as a result of the “normal dynamic of jury
deliberations.” United States v. Cuthel, 903 F.2d 1381, 1383
(11th Cir. 1990).
Sears, 514 S.E.2d at 433.
The Georgia Supreme Court’s finding that Fisher changed her vote in light
of the normal dynamic of jury deliberations was not unreasonable under
42
section 2254(d). The “normal dynamic of jury deliberations” includes “intense
pressure,” which is “often required to reach a unanimous decision.” United
States v. Cuthel, 903 F.2d 1381, 1383 (11th Cir. 1990). The evidence here is that
other jurors yelled and cursed at Fisher, “ostracized” and were “angry” with her,
and told her she “should be prosecuted for perjury” because they believed she
would not vote for a death sentence regardless of the evidence. ([17.9] at 36-37,
45, 57, 61). That Fisher was involved in heated—even belligerent—interactions
during the jury’s sentencing deliberations is not unexpected, particularly in a death
penalty case, and does not constitute unconstitutional coercion or misconduct. See
Goode v. Mazzuca, No. 00-cv-7932, 2004 WL 1794508, at *6 (S.D.N.Y. Aug. 11,
2004) (“Allegations of verbal intimidations among jurors, even to the point of
screaming and abusive language, do not rise to the level of clear and strong
evidence necessary to warrant habeas relief.”); see, e.g., Mahoney v. Vondergritt,
938 F.2d 1490, 1491 (1st Cir. 1991) (juror’s allegation that “she, and at least one
other juror, had been ‘pressured’ and ‘badgered’ into finding guilt” was “simply
part-and-parcel of the jury system, and provide[s] neither a basis for inquiry nor
grounds for undermining a verdict”); Jacobson v. Henderson, 765 F.2d 12, 14 (2d
Cir. 1985) (affirming denial of habeas relief under section 2254 where “there was
screaming, hysterical crying, fist banging, name calling, and the use of obscene
43
language” in the jury room, and “one of the jurors allegedly threw a chair at
another, then broke down, crying and claiming that he was a sick man”); United
States v. Grieco, 261 F.2d 414, 414 (2d Cir. 1958) (denying relief where a juror
stated “she had wished to vote for acquittal, but being the only juror who did,
another juror, a man, was ‘very abusive,’ so much so that she was ‘shaking and
crying’ when she finally agreed to concur with the rest, and that she now wished
‘to retract.’”); see also Thompson v. Cain, 161 F.3d 802, 810 (5th Cir. 1998) (“Jury
deliberations in a capital case are typically anxiety producing.”)
Intense feelings and emotional manifestations often accompany the free and
unfettered exchange of views that is the hallmark of our jury system. Although
Fisher may have been “singled out” in these exchanges, this is consistent with the
fact that she was the only juror in the minority position. ([17.9] at 41).9 “One
would expect that [jurors] in the majority would argue and shout in an attempt to
persuade those in the minority to accept the views of the majority.” United
States v. Musto, 540 F. Supp. 318, 344 (D.N.J. 1982); see United States v. Jones,
132 F.3d 232, 246 (5th Cir. 1998), aff’d, 527 U.S. 373 (1999) (“[M]ajority jurors
[routinely] try to sway dissenting jurors in order to reach certain verdicts or
9
That Fisher was singled out also is understandable because she put
headphones on and declined to participate in part of the jury’s deliberations.
([17.9] at 61-62).
44
sentences.”); Rey, 811 F.2d at 1460 (“[T]he duty of a juror is rigorous.
Deliberations can be long, hard and heated. . . . A majority of jurors eager to go
home can exert tremendous pressure on a minority juror.”). Fisher, who holds a
college degree in criminal justice, understood she had not committed perjury and
confirmed in court that her sentencing vote was voluntary and freely entered.
([15.24] at 39, 57). She was a person that had the capacity to stand by her resolve.
That she now regrets her decision, years after the verdict was entered, does not
render her sentencing vote involuntary or otherwise warrant disturbing the jury’s
unanimous verdict, which she affirmed was her personal decision when polled. Cf.
Jones, 132 F.3d at 246 (“An individual juror no longer exposed to the dynamic
offered by jury deliberations often may question his vote once the jury has been
dismissed. Such self-doubt would be expected once extrinsic influences bear down
on the former jurors, especially in decisions of life and death. When polled, each
juror affirmatively indicated that he had voted for the death penalty. We will not
allow a juror to change his mind after the jury has rendered a verdict.”).
Petitioner argues that the Georgia Supreme Court’s decision was
unreasonable because the evidentiary record does not clearly show why Fisher
decided to change her sentencing vote to death. ([53] at 5, 13). The Court finds,
however, that the evidence was sufficient to sustain the state court’s findings.
45
Petitioner elicited extensive testimony from Fisher on the circumstances
surrounding the jury’s deliberations and the impact of those circumstances on her
personally. The jury’s notes, and the trial court’s response to those notes, also
were in the record. This evidence permitted the Georgia Supreme Court to
determine whether unconstitutional jury coercion occurred, and to find it did not.
Petitioner’s argument is based on the incorrect assumption that the state
court could not reasonably deny his claims without evidence of Fisher’s thought
process. It is the objective circumstances surrounding the jury’s deliberations, not
the juror’s subjective perception of those circumstances, that determines whether
unconstitutional coercion occurred. See Anderson v. Miller, 346 F.3d 315, 329 (2d
Cir. 2003) (denying habeas relief where “Jurors Nos. 2 and 11 felt themselves to be
under pressure, perhaps even under duress, to vote in favor of conviction” but “a
reasonable juror, standing in the shoes of Juror Nos. 2 and 11, would [not] have
thought herself to be facing a physical assault if she refused to vote for
conviction”); United States v. Green, 523 F.2d 229, 236 (2d Cir. 1975)
(“[T]he proper approach in this case is to determine whether the court’s statements
were coercive, regardless of the subjective effect on the jurors.”).10 A rule
10
The subjective perceptions of the jury may be relevant under some
circumstances but are neither required nor controlling.
46
allowing a years-later inquiry into a juror’s subjective perception of deliberations
would undercut the finality of nearly every jury verdict, and result in inconsistent
outcomes depending on the composition of the jury. See Musto, 540 F. Supp. at
344 (“What constitutes pressure to one person will not necessarily constitute
pressure to another. . . . A juror taking a minority position might feel pressure if
required to explain the position taken, but no one could seriously contend that such
a demand by a foreperson or a majority of the jurors constitutes unfair or undue
pressure upon a juror.”). The common law rule is that “the mental processes of the
jury in its deliberations are not subject to judicial scrutiny.” United
States v. Vincent, 648 F.2d 1046, 1049 (5th Cir. 1981); see Fed. R. Evid. 606(b)(1)
(“[A] juror may not testify about any statement made or incident that occurred
during the jury’s deliberations; the effect of anything on that juror’s or another
juror’s vote; or any juror’s mental processes concerning the verdict or
indictment.”); Norton, 867 F.2d at 1366 (“The alleged harassment or intimidation
of one juror by another would not be competent evidence to impeach the guilty
verdict.”); cf. Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 865 (2017) (“Some
version of the no-impeachment rule is followed in every State and the District of
Columbia.”).
47
Petitioner’s motion for discovery or an evidentiary hearing on Claim III is
denied because he has not shown that the state court’s adjudication of this claim
was based on unreasonable factual determinations or on an unreasonable
application of clearly established federal law.11
D.
Conclusion
The showing required under section 2254(d) is exceptionally demanding.
Only “extreme malfunctions” in a state criminal justice system warrant relief.
Ryan v. Gonzales, S. Ct. 696, 708 (2013). Petitioner has not made the showing
required. He has not shown that no fair-minded jurist could agree with the Georgia
Supreme Court’s denial of Claims III and IV. See Everett, 779 F.3d at 1239
(“As long as some fairminded jurists could agree with the state court’s decision,
although others might disagree, federal habeas relief must be denied.”). The Court,
having considered the totality of the circumstances, finds that the Georgia Supreme
11
Petitioner’s Claim III also asserts that juror Kenneth Makant “did not
provide truthful voir dire responses,” and that Makant’s presence on the jury thus
deprived Petitioner of his Sixth Amendment right to a fair and impartial jury. ([28]
at 80-81). It is unclear whether Petitioner seeks discovery or an evidentiary
hearing on this claim. To the extent that he does, his request is denied for failure to
meet his burden under section 2254(d). See Cullen v. Pinholster, 563 U.S. 170,
181 (2011) (“The petitioner carries the burden of proof” under section 2254(d)).
Petitioner failed to argue, in the briefing required by this Court, that the state
court’s adjudication of his Makant claim “was based on an unreasonable
determination of the facts” or “was contrary to, or involved an unreasonable
application of, clearly established Federal law.” 28 U.S.C. § 2254(d).
48
Court’s adjudication of Claims III and IV was not unreasonable under
section 2254(d). Petitioner’s Motions for Discovery and an Evidentiary
Hearing [38] thus are denied.12
III.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Petitioner’s Motions for Discovery and an
Evidentiary Hearing [38] are DENIED.
IT IS FURTHER ORDERED that Respondent’s Motion to Exceed the
Page Limitation for Respondent’s Brief [39] is DENIED AS MOOT.
SO ORDERED this 20th day of June, 2017.
12
Because Petitioner’s Motions for Discovery and an Evidentiary Hearing are
denied, Respondent’s motion to exceed the page limitation in his response brief is
denied as moot.
49
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