Merilien v. Washington
Filing
141
OPINION AND ORDER adopting Magistrate Judge Alan J. Baverman's Final Report and Recommendation 130 and overruling Petitioner's Objections to the R&R 134 . Petitioner's Motion for Leave to File Amended or Additional Objections 135 is granting and the additional objections contained within Petitioners motion are overruled. Petitioner's Amended 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus 96 is denied and a COA is denied. Petitioner's Motion to Change R espondent Name 136 is granted and the Clerk of Court is directed to substitute Warden Antoine Caldwell as Respondent. Petitioner's Motion to Review Documents and Request for the Court to Review Documents to Support Objections and Amended Petition 138 is granted. Petitioner's Motion for Evidentiary Hearing to Allow Key Witness to Testify without fear of Deportation to El Salvador 139 is denied and this action is dismissed. Signed by Judge William S. Duffey, Jr on 6/9/17. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
JEAN JOCELYN MERILIEN,
Plaintiff,
v.
1:10-cv-3232-WSD
SHAWN EMMONS,
Defendant.
OPINION AND ORDER
This matter is before the Court on Magistrate Judge Alan J. Baverman’s
Final Report & Recommendation [130]. The R&R recommends the Court deny
Petitioner Jean Jocelyn Merilien’s (“Petitioner”) Amended 28 U.S.C. § 2254
Petition for Writ of Habeas Corpus [96] (“Section 2254 Petition”). Also before the
Court are Petitioner’s Objections to the R&R [134], Motion for Leave to File
Amended or Additional Objections [135], Motion to Change Respondent Name
[136], Motion to Review Documents and Request for the Court to Review
Documents to Support Objections and Amended Petition [138] (“Motion to
Review Documents”), and Motion for Evidentiary Hearing to Allow Key Witness
to Testify without fear of Deportation to El Salvador [139] (“Motion for
Evidentiary Hearing”).
I.
BACKGROUND
A.
Facts1
Petitioner, confined in Wilcox State Prison in Abbeville, Georgia, challenges
his May 19, 2006, Rockdale County, Georgia convictions. Petitioner, who is a
Haitian national, confessed to police that, on October 30, 2004, he “shot and killed
his wife, with an automatic rifle, in the house with his children present and then
gunned down and killed his mother-in-law in the same house.” ([14.2] at 6;
[14.3] at 21, 24-34). Petitioner’s state habeas court described Petitioner’s
indictment and conviction as follows:
Petitioner was indicted by the Rockdale County grand jury on
March 6, 2006, for two counts of malice murder, two counts of felony
murder, two counts of aggravated assault, possession of a firearm
during the commission of a crime, and possession of a firearm by a
convicted felon. . . . The state sought the death penalty against
Petitioner. . . .
On May 19, 2006, Petitioner entered a negotiated guilty plea to
two counts of malice murder, and received consecutive life sentences;
and possession of a firearm during the commission of a crime, for
which he received a consecutive five year sentence.
1
The facts are taken from the R&R and the record. The parties have not
objected to any specific facts in the R&R, and the Court finds no plain error in
them. The Court thus adopts the facts set out in the R&R. See Garvey v. Vaughn,
993 F.2d 776, 779 n.9 (11th Cir. 1993).
2
([14.2] at 1-2). Petitioner did not appeal. ([96] at 2). “On December 6, 2006,
Petitioner filed a motion to withdraw his guilty plea, which the court dismissed for
lack of jurisdiction on December 12, 2007.” ([14.2] at 2). In his state habeas
petition, filed on August 24, 2007, Petitioner raised the following grounds for
relief:
1.
The trial court improperly failed to
(a)
(b)
2.
“inform Petitioner of his rights prior to the guilty plea,” causing him
to “rel[y] solely on the pre-printed guilty plea form,” and
“advise Petitioner of his rights under the Geneva Convention.”
Trial counsel provided ineffective assistance by failing to
(a)
(b)
“advise Petitioner of his rights.”
(a)
Petitioner “did not knowingly, intelligently, or voluntarily enter his
guilty plea because he never waived his rights [(1)] to not incriminate
himself, [(2)] to a trial by jury, [(3)] to confront his accusers, and
[(4) under] the Geneva Convention.”
(b)
4.
“present the ‘mitigating Geneva Convention,’” and
(c)
3.
“meet and discuss the case with Petitioner,”
The trial court improperly denied Petitioner “an interpreter at the
guilty plea hearing,” causing him not to “understand what he was
doing.”
Trial counsel provided ineffective assistance by failing to
(a)
“present mitigating evidence of Petitioner’s social background, drug
abuse, family abuse, [and] mental health impairment,” and
3
(b)
(a)
The trial court improperly “suppressed the evidence that another man
allegedly committed the crime and that Petitioner was actually
innocent.”
(b)
5.
“investigate and engage in sufficient preparation to be able to present
and explain [the] significance of all available mitigating evidence.”
“[T]he prosecutors failed to investigate the man who allegedly
committed the crime and . . . failed to disclose before Petitioner’s
guilty plea evidence that was favorable to him to prove his
innocence.”
6.
“[T]he trial court violated [Petitioner’s] due process rights to counsel under
the [F]ifth, [S]ixth, and [F]ourteenth [A]mendments when the state used
police and other law [enforcement] statements and perjured testimony to
indict [him].”
7.
Trial counsel provided ineffective assistance by failing to
(a)
(b)
8.
“investigate the state’s evidence,” and
“cross-examine [the] state’s witnesses.”
Trial counsel provided ineffective assistance by
(a)
(b)
9.
conspiring to have Petitioner “plead guilty to a crime of which [he] is
innocent, in order to [(1)] ‘save’ counsel’s ‘best friend golf player’ —
i.e., the district attorney, [from] spend[ing] $450,000 for a jury trial,
and [(2)] keep up [counsel’s] friendship with the district attorney so
they both could have time to play golf together,” and
being disloyal and “racist and prejudiced against Petitioner.”
Trial counsel provided ineffective assistance by
(a)
failing “to withdraw Petitioner’s guilty plea and to perfect an appeal
when Petitioner specifically instructed counsel to withdraw his plea
because he was not satisfied with the sentence and the state used
perjured testimony,” and
4
(b)
“inform[ing] Petitioner that the law did not allow for an appeal of a
guilty plea, as Petitioner had waived his rights to one.”
(Id. at 2-3, 12-13, 15-16; see also [101] at 1-3 (explaining Petitioner did not raise
any other claims in his state habeas petition)).
On December 11, 2009, the state habeas court issued its Final Order denying
relief to Petitioner. ([14.2] at 1). On September 7, 2010, the Georgia Supreme
Court denied Petitioner’s application for a certificate of probable cause to appeal
([14.4] at 1). The Court sets forth additional facts below.
B.
Procedural History
On October 7, 2010, Petitioner filed his original Section 2254 petition.
([1] at 32). The Court determined that the original petition was timely submitted
pursuant to 28 U.S.C. § 2244(d). ([85] at 3-9; [88] at 1).
Pursuant to the Magistrate Judge’s order, ([ 94] at 1-2), on May 10, 2014,
Petitioner submitted his amended Section 2254 petition. On April 10, 2017, the
Magistrate Judge issued his R&R. The Magistrate Judge interpreted the
Section 2254 Petition as raising the same grounds adjudicated by the state habeas
court, as well as additional unexhausted grounds, which the Magistrate Judge
found were procedurally barred. The Magistrate Judge found that, with respect to
Petitioner’s claim of ineffective assistance of trial counsel, the Georgia Supreme
Court’s adjudication warrants deference pursuant to 28 U.S.C. §2254(d). He also
5
found that deference is warranted on Petitioner’s claims of errors preceding his
guilty plea and regarding the voluntariness of his guilty plea The Magistrate Judge
determined that Petitioner’s actual innocence claims are not supported by reliable
evidence. The Magistrate Judge recommends the Court deny Petitioner’s Habeas
Petition, and deny a certificate of appealability.
On April 24, 2017, Petitioner filed his Objections to the R&R. The
Objections, which consist of forty hand-written pages, largely restate the
arguments Petitioner made in support of his Section 2254 Petition. Petitioner
claims the Magistrate Judge failed to “fully or adequately review all [Petitioner’s]
claims/grounds and evidence enclosed with [his Section 2254 Petition] . . . .”
(Obj. at 2). Petitioner also asserts that his actual innocence claims were fully
supported by reliable evidence.
On May 5, 2017, Petitioner filed his Motion for Leave to File Amended or
Additional Objections.2 In the motion, Petitioner argues, in an apparent attempt to
avoid deference to the state habeas court’s decision regarding his habeas petition,
that his state court habeas petition was untimely, and thus the state habeas court
“lack[ed] jurisdiction to enter the judgment. (See [135] at 1-2).
2
Petitioner’s Motion for Leave to File Amended or Additional Objection is
granted, and the Court considers the objections raised in the motion.
6
On May 15, 2017, Petitioner filed his Motion to Change Respondent Name.
He states that he has been transferred to Wilcox State Prison, and he seeks to
change Respondent’s name to Antoine Caldwell, the warden of the prison. The
same day, Petitioner filed his Motion to Review Documents. In it, he asks the
Court to “disregard prior requests for 21/30 days extentions [sic] to file objections”
and asks the Court to review several documents filed with the Court. ([138] at
1-2).3 On May 17, 2017, Petitioner filed his Motion for Evidentiary Hearing.
Petitioner claims Sarah Rodriguez, the mother of one of his children, is a key alibi
witness in this case, but that, because she is not in the country legally, his trial
attorneys advised him not to let her testify. He now seeks to have her testify
without the threat of deportation.
II.
DISCUSSION
A.
Motion to Change Respondent Name
Petitioner states that he has been transferred to Wilcox State Prison, and he
seeks to change Respondent’s name to Antoine Caldwell, the warden of the prison.
“If the petitioner is currently in custody under a state-court judgment, the petition
must name as respondent the state officer who has custody.” Rule 2(a), Rules
3
Petitioner’s Motion to Review Documents is granted, and the Court reviews
the documents Petitioner presents to the extent they are relevant to the Court’s
adjudication of Petitioner’s Section 2254 Petition.
7
Governing § 2254 Cases in the United States District Courts. The proper
respondent is ordinarily the warden of the petitioner’s institution. Id., Advisory
Committee Notes. Because Petitioner is now in the custody of Warden Caldwell,
Petitioner’s Motion to Change Respondent Name is granted.
B.
Section 2254 Petition
1.
Standard of Review of a Magistrate Judge’s R&R
After conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or modify a magistrate
judge’s report and recommendation. 28 U.S.C. § 636(b)(1); Williams
v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982) (per curiam). A district judge
“shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1). Where no party has objected to the report and recommendation, the
Court conducts only a plain error review of the record. United States v. Slay,
714 F.2d 1093, 1095 (11th Cir. 1983) (per curiam). Because Petitioner objects to
the R&R, the Court conducts its de novo review.
8
2.
Grounds Adjudicated on the Merits
Petitioner raises the following claims that were adjudicated on the merits by
the state habeas court: (1) ineffective assistance of counsel; (2) errors preceding
his guilty plea; and (3) involuntary guilty plea.
A federal court may not grant habeas relief for claims previously adjudicated
on the merits by a state court unless the state court’s decision (1) “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) “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). “[A]n unreasonable application of
federal law is different from an incorrect application of federal law.”
Harrington v. Richter, 562 U.S. 86, 101 (2011) (internal quotation marks omitted)
(quoting Williams v. Taylor, 529 U.S. 362, 410 (2000)). “[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.” Id. at 103. The state court’s determinations of factual issues are
presumed correct, absent “clear and convincing evidence” to the contrary.
28 U.S.C. § 2254(e)(1).
9
The Magistrate Judge determined that the Georgia Supreme Court’s
adjudication of Petitioner’s claims warrants deference pursuant to 28 U.S.C.
§ 2254(d). In his objections, Petitioner now argues that his state court habeas
petition was untimely, and thus the state habeas court “lack[ed] jurisdiction to enter
the judgment. (See [135] at 1-2). Petitioner’s argument is without merit.
O.C.G.A. § 9-14-42(c) provides a four-year statute of limitations to file a state
habeas petition to challenge a felony conviction. The statute generally runs from
“[t]he judgment of conviction becoming final by the conclusion of direct review or
the expiration of the time for seeking such review” unless some other triggering
event in the statute is applicable. O.C.G.A. § 9-14-42(c)(1). Petitioner pleaded
guilty to two counts of malice murder on May 19, 2006. Petitioner’s convictions
became final on June 19, 2006. ([85] at 4). He had four years from this date to
challenge his conviction. His state-court habeas petition, filed on August 24, 2007,
was filed well within the statute of limitations, and the Court rejects Petitioner’s
argument that the state habeas court lacked jurisdiction over his state-court habeas
petition. The Court proceeds to analyze each of the claims the Georgia Supreme
Court adjudicated on the merits.
10
i.
Ineffective Assistance of Trial Counsel
Petitioner claims that his trial counsel provided ineffective assistance. To
prevail on an ineffective assistance of counsel claim, a petitioner must show that
counsel’s conduct was “outside the wide range of professionally competent
assistance” and that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 690, 694 (1984). Courts must “indulge a
strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Id. at 689. “In the context of guilty
pleas, . . . [t]he second, or ‘prejudice,’ requirement . . . focuses on whether
counsel’s constitutionally ineffective performance affected the outcome of the plea
process. In other words, in order to satisfy the ‘prejudice’ requirement, the
defendant must show that there is a reasonable probability that, but for counsel’s
errors, he would not have pleaded guilty and would have insisted on going to trial.”
Hill v. Lockhart, 474 U.S. 52, 58-59 (1985).
When this deferential Strickland standard is “combined with the extra layer
of deference that § 2254 provides [in federal habeas cases], the result is double
deference and the question becomes whether ‘there is any reasonable argument that
counsel satisfied Strickland’s deferential standard.’” Johnson v. Sec’y, DOC, 643
11
F.3d 907, 910-11 (11th Cir. 2011) (quoting Harrington, 562 U.S. at 105).
“Double deference is doubly difficult for a petitioner to overcome, and it will be a
rare case in which an ineffective assistance of counsel claim that was denied on the
merits in state court is found to merit relief in a federal habeas proceeding.” Id. at
911.
The state habeas court set forth the following facts regarding Petitioner’s
trial counsel:
Attorney Dwight Thomas was appointed to represent
Petitioner . . . because [he] was qualified to handle death penalty
work. . . . Thomas has been a practicing attorney in the State of
Georgia since 1976, and, at the time he represented Petitioner,
approximately 95 percent of his practice was devoted to criminal
law. . . .
[Thomas] reviewed the indictment and had . . . the assistance of
both a mitigation specialist and a private investigator. . . .
[Thomas] interviewed Petitioner on multiple occasions and also
had numerous conversations with both [prosecutors]. . . .
In addition, Terry Thompson served as co-counsel. . . .
Thompson . . . was qualified to sit “second chair” in death penalty
cases. . . . [Thomas] also traveled to New York to interview potential
witnesses who would serve as mitigating and fact witnesses. . . . The
guilty plea negotiations began once [Thomas] really began to look at
the evidence the state had against Petitioner and after [the] evidentiary
hearing. . . . [T]he state established that Petitioner confessed to the
murders to the police officers and the state had videotapes of these
confessions. . . . After [Thomas] discovered, through his
investigation, that some of Petitioner’s children were going to testify
for the state about their firsthand observations and that other family
12
members, who Petitioner initially believed would be defense
witnesses, were going to testify contrary to what Petitioner was
expecting, . . . [Thomas] began to discuss Petitioner’s options with
him. . . .
[Thomas] was confident that the plea negotiations and the
sharing of information would be done in good faith because [he] had a
good relationship with the [prosecutors,] as they used to work together
in the DeKalb County District Attorney’s Office. . . .
[Thomas] believed that, with all of the overwhelming evidence,
there was a very likely result of a guilty verdict of malice murder or
felony murder, both of which carried the death penalty. . . . [Thomas]
explained to Petitioner that, if he were convicted, he had three
sentencing options: life without parole, life with parole, or death. . . .
[Thomas] convinced the [prosecutor] that the most appropriate
resolution in the case would be life with the possibility of parole,
which [Thomas] believed was a victory. . . . [Thomas] also explained
to Petitioner that an offer extended that day could be taken off the
table the next day. . . . Petitioner told [Thomas] that he did not want
to go to trial. . . .
[Before Petitioner entered] his guilty plea, [Thomas] discussed
Petitioner’s constitutional rights with [him], which included the right
to a trial by jury, the right to confront witnesses, and the privilege
against self-incrimination. . . . [Thomas] did this in English and in
French Creole, through an interpreter, although Petitioner was familiar
with the English language. . . . Evidence came out at the evidentiary
hearing which proved that Petitioner could speak and understand
English. . . . [Thomas] also advised Petitioner of the maximum and
minimum penalties for each charge in the indictment. . . .
[Thomas] did not advise Petitioner about the Geneva
Convention because it was not applicable to a capital case; [it] applied
to soldiers in war. . . . If Petitioner intended to invoke the Vienna
Convention, [which applies to the detainment of a foreign national,
Thomas] did not bring [it] up as an issue because the United States
Supreme Court had recently ruled that the Vienna Convention did not
[require] the suppression of statements. . . .
13
[A]t the guilty plea hearing, [Thomas] stated under oath that he
went over the plea forms with Petitioner, a couple [of] days prior to
[his] plea, in both English and French Creole. . . . Petitioner stated
under oath at the plea hearing that he had an adequate opportunity to
go over the plea sheet before he completed it and that he understood
that, by filling out the plea form and handing it [to] the court, he was
waiving all of [the] rights that were enumerated on the plea sheet.
([14.2] at 4-7).
The state habeas court applied Strickland and Hill to Petitioner’s case and
reached the following conclusion:
[Thomas] zealously represented Petitioner throughout his case
and his guilty plea. [Thomas] met with Petitioner several times and
employed both a licensed private investigator and a mitigation expert
investigator. [Thomas] reviewed all of the evidence in the case and
fully investigated every avenue possible, including mitigating
evidence, in order for Petitioner to avoid the death penalty. . . .
[Thomas] fully informed Petitioner of the constitutional rights
[he] would be waiving by pleading guilty. [Thomas] went over the
waiver of rights form with Petitioner, as reflected by the guilty plea
transcript. In addition, during plea negotiations, [Thomas] explained
and informed Petitioner of the constitutional rights he would be
waiving by entering the plea, and [Thomas] thought that Petitioner
understood these rights.
Petitioner has not shown that counsel acted unreasonably in not
relying on either the Geneva Convention, which applies to soldiers in
war, or the Vienna Convention, [which applies to the detainment of a
foreign national]. The United States Supreme Court has not squarely
answered the question of whether the Vienna Convention created an
enforceable individual right, but has held that assuming it did, a claim
under the Vienna Convention was subject to state procedural rules.
[Sanchez-Llamas v. Oregon], 548 U.S. 331, 336 (2006). The Georgia
Supreme Court has held: “[I]t is clear that nothing in the text [of the
Vienna Convention] requires suppression of evidence or dismissal of
14
the indictment for violations. . . .” Ramirez v. State, 279 Ga. 569,
575, 619 S.E.2d 668, [673] (2005).
Petitioner cannot show prejudice, as none of his statements
would have been suppressed based on the alleged violation.
Contrary to Petitioner’s assertions, [Thomas] did not conspire
to have Petitioner plead guilty, despite [his] purported innocence, in
order to avoid spending money for a trial and to maintain [Thomas’s]
friendship with the prosecutor. [Thomas] investigated the case,
determined that the evidence against Petitioner was overwhelming,
and, in order to avoid a death sentence, obtained a favorable plea
bargain that allowed Petitioner to [plead] guilty to both murders and
receive life sentences. Petitioner has not shown that [Thomas] was
not acting in Petitioner’s best interests when [Thomas] . . . negotiated
a plea agreement which allowed Petitioner to avoid a death sentence
or a sentence of life without parole.
In light of the plea agreement which called for life sentences for
malice murder, there was no need for [Thomas] to present additional
evidence in mitigation. Life was the only remaining sentence
available after the state elected not to pursue the death penalty. See
[O.C.G.A.] § 16-5-1(d).
Petitioner has presented no evidence that he informed [Thomas]
that he wanted to withdraw his plea. . . . [W]ithdrawal of a guilty plea
is only permitted where a defendant “proves that withdrawal is
necessary to correct a manifest injustice.” [Ga. Unif. Super. Ct. R).
33.12(A) . . . . Petitioner offers only speculation that, had he timely
filed a motion to withdraw, the motion would have been granted.
Speculation does not establish prejudice under Strickland. . . .
Based on the foregoing, Petitioner has not shown a deficient
performance [by Thomas]. Petitioner also has not shown prejudice,
because he has not shown that, but for [Thomas’s] alleged errors or
omissions, he would not have pleaded guilty and would have insisted
on going to trial.
(Id. at 9-12 (footnote omitted)).
15
Petitioner here renews his claims that trial counsel provided ineffective
assistance by failing to (1) advise him properly, (2) present mitigating evidence,
(3) investigate the state’s evidence and cross-examine the state’s witnesses,
(4) remain loyal to him, and (5) withdraw his guilty plea and file an appeal when
instructed to do so. ([96] at 6, 8, 10, 14-18). As the state habeas court found,
Thomas investigated the case and properly advised Petitioner regarding the waiver
of his rights and the immateriality of the Geneva and Vienna Conventions. The
presentation of mitigating evidence was irrelevant after Thomas negotiated a
favorable outcome for Petitioner. There is no evidence Thomas conspired against
Petitioner, acted disloyally, or was “racist and prejudiced.” There is no evidence
Petitioner informed Thomas that he wanted to withdraw his guilty plea. Petitioner
claims in his Objections that, on December 6, 2006, Petitioner filed a one-page
motion with the trial court withdrawing his guilty plea. This motion was filed
nearly seven months after Petitioner entered his guilty plea.
The Court finds the state habeas court reasonably concluded that
(1) Thomas’s performance was not deficient, and (2) Petitioner failed to show a
reasonable probability that, but for Thomas’s alleged errors, Petitioner would not
have pleaded guilty and would have insisted on going to trial. Under these
circumstances, the Georgia Supreme Court’s denial of Petitioner’s application for a
16
certificate of probable cause to appeal was (1) neither contrary to, nor an
unreasonable application of, federal law, and (2) not based on an unreasonable
determination of the facts. On de novo review, the Court finds the Georgia
Supreme Court’s adjudication of Petitioner’s claim of ineffective assistance of trial
counsel warrants deference pursuant to 28 U.S.C. § 2254(d).
ii.
Alleged Errors Preceding Guilty Plea
Petitioner claims that before he pleaded guilty (1) the trial court improperly
suppressed evidence of his actual innocence, (2) the prosecutors failed to
investigate the evidence and disclose it to him, and (3) his indictment was
improper, but the trial court allowed it to stand. ([96] at 10-14). The state habeas
court explained that Petitioner had waived those claims by pleading guilty. ([14.2]
at 15-16).
A criminal defendant who has pleaded guilty “may not thereafter raise
independent claims relating to the deprivation of constitutional rights that occurred
prior to the entry of the guilty plea.” Tollett v. Henderson, 411 U.S. 258, 267
(1973). The entry of a guilty plea “waives all nonjurisdictional challenges to the
constitutionality of the conviction, and only an attack on the voluntary and
knowing nature of the plea can be sustained.” United States v. De La Garza,
17
516 F.3d 1266, 1271 (11th Cir. 2008) (quoting Wilson v. United States, 962 F.2d
996, 997 (11th Cir. 1992)).
Because Petitioner pleaded guilty, the state habeas court correctly found that
Petitioner waived his pre-guilty plea claims of error. The Georgia Supreme
Court’s denial of Petitioner’s application for a certificate of probable cause to
appeal was thus (1) neither contrary to, nor an unreasonable application of, federal
law, and (2) not based on an unreasonable determination of the facts. On de novo
review, the Court finds the Georgia Supreme Court’s adjudication of Petitioner’s
claims of pre-guilty plea errors warrants deference pursuant to 28 U.S.C.
§ 2254(d).
iii.
Voluntariness of Guilty Plea
Petitioner claims that (1) before he pleaded guilty, the trial court improperly
failed to inform him of his rights, including those under the Geneva and Vienna
Conventions, (2) the court improperly denied him an interpreter, and (3) he did not
plead guilty knowingly, intelligently, or voluntarily. ([96] at 6, 8, 9, 19-20).
Regarding Petitioner’s claims with respect to the voluntariness of his guilty plea,
the state habeas court found as follows:
The guilty plea transcript reveals that the trial court went over
and made certain that counsel had gone over the plea form with
Petitioner, which included his right to a jury trial, his right against
self-incrimination, and the right to confront his accusers, [as required
18
by Boykin v. Alabama, 395 U.S. 238 (1969)] . . . . Counsel confirmed
that he had and did so in both English and French Creole, with help
from an interpreter. . . . Also, counsel explained all of the Boykin
rights to Petitioner prior to Petitioner entering his plea. . . .
The record is clear that Petitioner understood he was waiving
the rights listed on the plea form. . . . [T]he court asked, “[Petitioner],
do you understand that by filling out this plea sheet and handing it to
the court, that you are waiving all the rights that you have enumerated
on this plea sheet ([question] interpreted by an interpreter)?” . . . .
Petitioner answered, “Yes.” Then, the court asked Petitioner, “Is it
your intention to do that ([question] interpreted by an interpreter)?”
Again, Petitioner answered, “Yes.”. . .
Here, the record as a whole, which includes counsel’s testimony
at the habeas hearing, as well as his declarations made in open court at
the guilty plea hearing, and Petitioner’s statements at the guilty plea
hearing, together with the waiver of rights form which was filled out
and signed by Petitioner, shows that Petitioner knowingly and
intelligently waived his Boykin rights. . . .
Petitioner’s allegation that the court denied him an interpreter is
belied by the record. References to an interpreter being present and
interpreting questions for Petitioner are found throughout the guilty
plea transcript. . . .
Boykin does not establish a constitutional procedural rule or
require state trial judges to address defendants personally. Boykin
only requires that the court accepting a guilty plea ensure that the
record is accurate for subsequent review, and “the constitutional
prerequisites of a valid plea may be satisfied where the record
accurately reflects that the nature of the charge and the elements of the
crime were explained to the defendant by his own, competent
counsel.” Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005). There is
no constitutional requirement that a state trial judge explain a
defendant’s purported “rights” under the Geneva or Vienna
Conventions to a defendant as a prerequisite for accepting a guilty
plea. Therefore, Petitioner’s guilty plea was not void or invalid for
any reason.
19
([14.2] at 13-15).
The Magistrate Judge found that the state habeas court correctly determined
that the trial court (1) properly informed Petitioner of his Boykin rights before he
pleaded guilty, and (2) was not required to provide information regarding the
Geneva or Vienna Conventions. The Court agrees. The state habeas court noted
that an interpreter assisted Petitioner when he pleaded guilty, and concluded that
Petitioner had affirmatively indicated his understanding that he waived his Boykin
rights. Accordingly, the Court finds the Georgia Supreme Court’s denial of
Petitioner’s application for a certificate of probable cause to appeal was (1) neither
contrary to, nor an unreasonable application of, federal law, and (2) not based on
an unreasonable determination of the facts. On de novo review, the Court finds the
Georgia Supreme Court’s adjudication of Petitioner’s claims regarding the
voluntariness of his guilty plea warrants deference pursuant to 28 U.S.C.
§ 2254(d).
20
3.
Procedurally Defaulted Claims
Petitioner raises a number of grounds for relief that he did not present on
direct appeal or collateral review. (See [96] at 10-17, 19-40, [96.1], [96.2], [96.3],
[96.4], [96.5]; see also [98] at 4-38).4
A federal habeas petitioner must first exhaust his state court remedies or
show that a state corrective process is unavailable or ineffective to protect his
rights. 28 U.S.C. § 2254(b)(1). Exhaustion requires that a state prisoner present
his claims, on direct appeal or collateral review, to the highest state court according
to that state’s appellate procedure. Mason v. Allen, 605 F.3d 1114, 1119 (11th Cir.
2010) (per curiam). “Under Georgia law, a prisoner seeking a writ of habeas
corpus vacating his conviction must present all of his grounds for relief in his
original petition.” Mincey v. Head, 206 F.3d 1106, 1136 (11th Cir. 2000); see
O.C.G.A. § 9-14-51 (“All grounds for relief claimed by a petitioner for a writ of
habeas corpus shall be raised by a petitioner in his original or amended petition.
4
Petitioner claims that he still has a habeas petition pending in Mitchell
County, Georgia, that purportedly contains the grounds for relief the Magistrate
Judge found were procedurally defaulted. A review of Petitioner’s May 18, 2007,
filing in Mitchell County [76.1] shows that Petitioner raised the following grounds:
voluntariness of his guilty plea and ineffective assistance of trial counsel. As
explained above, the Georgia Supreme Court adjudicated these grounds for relief.
Petitioner does not identify any additional claims he raised in his May 18, 2007
petition.
21
Any grounds not so raised are waived unless . . . [those grounds] could not
reasonably have been raised in the original or amended petition.”). This
procedural rule is designed to bar successive habeas petitions on a single
conviction. See Hunter v. Brown, 223 S.E.2d 145, 146 (Ga. 1976).
The Eleventh Circuit has “repeatedly recognized that not complying with
this [Georgia procedural] rule precludes federal habeas review.” Mincey,
206 F.3d at 1136; see Chambers v. Thompson, 150 F.3d 1324, 1327 (11th Cir.
1998) (concluding “that a state habeas court would hold [petitioner’s] claims to be
procedurally defaulted and not decide them on the merits, because they were not
presented in his initial state habeas petition” and “that those claims [therefore] are
procedurally barred from review in this federal habeas proceeding and
exhausted.”).
A petitioner may obtain federal habeas review of procedurally defaulted
claims by (1) showing cause and actual prejudice, or (2) presenting “proof of
actual innocence, not just legal innocence.” Ward v. Hall, 592 F.3d 1144, 1157
(11th Cir. 2010). To demonstrate actual innocence, a petitioner must “support his
allegations of constitutional error with new reliable evidence—whether it be
exculpatory scientific evidence, trustworthy eyewitness accounts, or critical
physical evidence—that was not presented at trial.” Schlup v. Delo, 513 U.S. 298,
22
324 (1995). “[T]he petitioner must show that it is more likely than not that no
reasonable juror would have convicted him in the light of the new evidence.” Id. at
327.
Petitioner failed to present all of his grounds for relief in his state-court
habeas petition, and the claims not raised in the petition are procedurally barred.
To avoid procedural default of these claims, Petitioner claims he is actually
innocent. In support of his claim of actual innocence, Petitioner presents affidavits
from his mother, Leonie Cadet Merilien, and his sister, Marie Veronique Merilien.
Both individuals claim Petitioner’s children, Raphael and Stacha, confessed to
them that they had murdered Petitioner’s wife and mother-in-law. The Court finds
the affidavits are not “reliable evidence,” because neither Petitioner’s mother nor
his sister explains the approximately seven-year delay in submitting their
affidavits. See McQuiggin v. Perkins, 133 S. Ct. 1924, 1935-36 (2013)
(“Unexplained delay in presenting new evidence bears on the determination
whether the petitioner has made the requisite [actual innocence] showing.”);
see also Freeman v. Trombley, 483 F. App’x 51, 60 (6th Cir. 2012) (alibi affidavit
submitted years after the petitioner’s trial was insufficient to establish a credible
actual-innocence claim); Milton v. Sec’y, Dep’t of Corr., 347 F. App’x 528,
531-32 (11th Cir. 2009) (finding reliability of affidavits from family members
23
created after trial “are called into question” and are not sufficiently reliable
evidence to support a claim of actual innocence).
Even if the affidavits presented new, reliable evidence of actual innocence,
the evidence presented in the affidavits is not sufficient to show it is “more likely
than not that no reasonable juror would have convicted” Petitioner in light of the
evidence. Schlup, 513 U.S. at 327. Petitioner’s mother’s and sister’s affidavits are
contradicted by the “overwhelming evidence” against Petitioner. (See [14.2] at 6).
In a videotaped confession, Petitioner described, in detail, the murders for which
he was convicted. Petitioner confessed that, shortly after the murders, he called a
family friend and told him he just murdered his wife and his mother-in-law.
(Guilty Plea Tr. (14.3] at 74-79). Further, the state habeas court noted: “after
counsel discovered . . . that some of Petitioner’s children were going to testify for
the state about their firsthand observations and that other family members . . . were
going to testify contrary to what Petitioner was expecting . . . counsel began to
discuss Petitioner’s options with him.” ([14.2] at 5-6).5
5
Petitioner now also claims Sarah Rodriguez, with whom Petitioner has a
child, is a “key witness” who can bolster his alibi defense. (Mot. for Evidentiary
Hr’g at 1). Petitioner does not provide an affidavit to support his self-serving
claims, and the Court finds Petitioner’s claims are not “reliable evidence” of actual
innocence. Even if Ms. Rodriguez provided an affidavit, as explained above, the
evidence against Petitioner is substantial, and Petitioner fails to show it is “more
24
Because Petitioner does not provide reliable proof of actual innocence, and
because the purported proof does not establish that it is more likely than not no
reasonable juror would have convicted Petitioner, the Court denies habeas corpus
relief on Petitioner’s procedurally defaulted claims.
4.
Certificate of Appealability
A federal habeas “applicant cannot take an appeal unless a circuit justice or a
circuit or district judge issues a certificate of appealability under 28 U.S.C.
§ 2253(c).” Fed. R. App. P. 22(b)(1). “The district court must issue or deny a
certificate of appealability when it enters a final order adverse to the applicant.”
Rules Governing Section 2254 Cases in the United States District Courts, Rule
11(a). A court may issue a certificate of appealability (“COA”) “only if the
applicant has made a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). A substantial showing of the denial of a constitutional
right “includes showing that reasonable jurists could debate whether (or, for that
likely than not that no reasonable juror would have convicted” Petitioner in light of
the evidence. Schlup, 513 U.S. at 327. In addition, to the extent Petitioner claims
ineffective assistance of counsel based on his trial counsel’s purported “misadvice”
regarding Ms. Rodriguez’s testimony, Petitioner never raised this claim in his state
habeas petition, and the issue is thus procedurally defaulted under Georgia’s
successive petition rule. See O.C.G.A. § 9-14-51; Chambers, 150 F.3d at 1327.
Petitioner’s Motion for an Evidentiary Hearing with respect to Ms. Rodriguez is
denied.
25
matter, agree that) the petition should have been resolved in a different manner or
that the issues presented were ‘adequate to deserve encouragement to proceed
further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting
Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).
When the district court denies a habeas petition on procedural
grounds . . ., a COA should issue when the prisoner shows, at least,
that jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and that
jurists of reason would find it debatable whether the district court was
correct in its procedural ruling.
Slack, 529 U.S. at 484.
The Magistrate Judge found that a COA should be denied because it is
not debatable that Petitioner fails to assert claims warranting federal habeas
relief. (R&R at 22-23). The Court agrees, and a COA is denied. Petitioner
is advised that he “may not appeal the denial but may seek a certificate from
the court of appeals under Federal Rule of Appellate Procedure 22.” Rule
11(a), Rules Governing Section 2254 Cases in the United States District
Courts.
II.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Alan J. Baverman’s
Final Report & Recommendation [130] is ADOPTED.
26
IT IS FURTHER ORDERED that Petitioner’s Objections to the R&R
[134] are OVERRULRED.
IT IS FURTHER ORDERED that Petitioner’s Motion for Leave to File
Amended or Additional Objections [135] is GRANTED. The additional
objections contained within Petitioner’s motion are OVERRULED.
IT IS FURTHER ORDERED that Petitioner’s Amended 28 U.S.C. § 2254
Petition for Writ of Habeas Corpus [96] is DENIED. A COA is DENIED.
IT IS FURTHER ORDERED that Petitioner’s Motion to Change
Respondent Name [136] is GRANTED. The Clerk of Court is DIRECTED to
substitute Warden Antoine Caldwell as Respondent.
IT IS FURTHER ORDERED that Petitioner’s Motion to Review
Documents and Request for the Court to Review Documents to Support Objections
and Amended Petition [138] is GRANTED.
IT IS FURTHER ORDERED that Petitioner’s Motion for Evidentiary
Hearing to Allow Key Witness to Testify without fear of Deportation to
El Salvador [139] is DENIED.
IT IS FURTHER ORDERED that this action is DISMISSED.
27
SO ORDERED this 9th day of June, 2017.
28
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?