Leftwich v. Barrow

Filing 16

Order and Opinion adopting 12 Final Report and Recommendation. IT IS HEREBY ORDERED that Petitioner's Objections 15 are OVERRULED. IT IS FURTHER ORDERED that the 1 Petition for Writ of Habeas Corpus, 9 Respondent's motion to dismiss for lack of exhaustion, and a Certificate of Appealability are DENIED. The Clerk is DIRECTED to close this action. Signed by Judge William S. Duffey, Jr on 9/26/2011. (rej)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
RALEIGH DUANE LEFTWICH,
Petitioner,
v.
DONALD BARROW, Warden,
Telfair State Prison,
Respondent.

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HABEAS CORPUS
28 U.S.C. § 2254

CIVIL ACTION NO.
1:11-CV-1015-WSD

OPINION AND ORDER
This matter is before the Court on Petitioner Raleigh Duane Leftwich’s
(“Petitioner”) Objections [15] to the Final Report and Recommendation (“R&R”) of
United States Magistrate Judge Russell G. Vineyard [12], recommending that the
Petition for Writ of Habeas Corpus (“Petition”) [1], Respondent Donald Barrow’s
(“Respondent”) Motion to Dismiss [9], and a Certificate of Appealability (“COA”)
be denied. As to ground one, the Magistrate Judge found that: Petitioner’s Fourth
Amendment claim is not reviewable by this Court because he has not shown the
lack of a full and fair opportunity to litigate his claim; the state court reasonably
applied Padgett v. Donald, 401 F.3d 1273, 1277-81 (11th Cir. 2005), in rejecting
Petitioner’s arguments that the DNA extraction violated his Fifth and Fourteenth
Amendment right to privacy and that the Georgia statute created an

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“unconstitutional ‘administrative search’ scheme; there is nothing clearly erroneous
about the state court’s finding that Petitioner was not a probationer at the time of
the DNA extraction and that the saliva sample was taken upon Petitioner being
physically discharged from lawful custody; and Petitioner’s contention that the
DNA sample was taken from him contrary to state law does not state a due process
violation. The Magistrate Judge further found, as to ground two, that Petitioner
presented no argument that the alleged error of state law also violated federal law.
Petitioner objects [15] to the Magistrate Judge’s findings concerning ground one.
I.

BACKGROUND1
Following a jury trial in the Superior Court of Fulton County, Petitioner was

convicted of rape, kidnapping, and aggravated assault and was sentenced to a total
of twenty years of imprisonment. (10-1 at 7-12). On July 7, 2009, the Georgia
Court of Appeals affirmed Petitioner’s convictions.2 The Georgia Supreme Court
denied certiorari on November 2, 2009,3 and the United States Supreme Court

1

The Court briefly summarizes the procedural history here. The
background of the case is more fully set forth in the R&R.
2

Leftwich v. State, 682 S.E.2d 614 (Ga. Ct. App. 2009).

3

Leftwich v. State, No. S09C2013, 2009 Ga. LEXIS 710 (Ga. Nov. 2,

2009).
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denied certiorari on March 22, 2010.4
On March 21, 2011, Petitioner, represented by counsel, petitioned this Court
for a writ of habeas corpus, on the grounds that: (1) the DNA evidence seized from
him following his release from prison violated his constitutional rights; and (2) the
statutes of limitation on Counts Two through Six of the superseding indictment
were improperly tolled.5 (Pet., Doc. 1 at 8, 10; Mem., Doc. 1-1 at 11-21).
Respondent argues that the Georgia Court of Appeals’ rejection of ground one is
entitled to deference and that ground two does not state a federal claim for relief.
(Resp’t Br., Doc. 7-1 at 8-15).6

4

Leftwich v. Georgia, 130 S. Ct. 1913 (2010).

5

In his objections, Petitioner states that he also raised a claim challenging
the trial court’s jury instructions as to the tolling language for the statute of
limitations. (Doc. 15 at 5-6). No such ground for relief is presented in the Petition
or supporting memorandum. (See generally Doc. 1).
6

Petitioner also alleges that he was illegally detained for forty-eight days
beyond the expiration of his prison sentence, in violation of his Fourth
Amendment rights. (Pet., Doc. 1 at 8). Respondent has moved to dismiss the
petition because this ground, which pertains to Petitioner’s 1996 Gwinnett County
convictions, is unexhausted. (Doc. 9). Petitioner responds that he is not
challenging his Gwinnett County convictions and “is not seeking redress” for the
forty-eight days he was detained beyond the end of his sentence for the
convictions. (Doc. 11 at 4-5). Rather,Petitioner challenges, in ground one, “the
validity of his current incarceration due to the evidence illegally seized during the
time he was held beyond the term of his 1996 sentence.” (Id. at 5). In light of
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On July 29, 2011, the Magistrate Judge issued his R&R, recommending that
the Petition and a COA be denied. The Magistrate Judge found that ground one
does not provide grounds for federal habeas relief because Petitioner was afforded
an opportunity to develop his Fourth Amendment claim in both the trial court and
on appeal, and Petitioner failed to show that the state court’s rejection of his other
arguments presented in ground one was contrary to, or involved and unreasonable
application of, clearly established federal law. The Magistrate Judge found further
that ground two does not state a federal claim for relief. On August 26, 2011,
Petitioner objected to the Magistrate Judge’s findings as to ground one.
II.

DISCUSSION
A.

Legal Standard

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. See 28 U.S.C. § 636(b)(1); Williams v.
Wainwright, 681 F.2d 732, 732 (11th Cir. 1982) (per curiam). A district judge

Petitioner’s clarification regarding his first ground for relief, the Magistrate Judge
recommended that Respondent’s motion to dismiss for failure to exhaust, (Doc. 9),
be denied. The Court finds no plain error in this conclusion and adopts the
recommendation that Respondent’s motion to dismiss be denied.
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“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). This requires that the district judge “give fresh consideration to those
issues to which specific objection has been made by a party.” Jeffrey S. by Ernest
S. v. State Bd. of Educ. of Ga., 896 F.2d 507, 512 (11th Cir. 1990) (per curiam)
(quoting H.R. Rep. No. 94-1609, 94th Cong., 2d Sess. (1976)). With respect to
those findings and recommendations to which a party has not asserted objections,
the Court must conduct a plain error review of the record. United States v. Slay,
714 F.2d 1093, 1095 (11th Cir. 1983) (per curiam).
B.

28 U.S.C. § 2254 Standards

Under 28 U.S.C. § 2254, a federal court may issue a writ of habeas corpus on
behalf of a person being held in custody pursuant to a judgment of a state court if
that person is held in violation of his rights under federal law. 28 U.S.C. § 2254(a).
In general, a state prisoner who seeks federal habeas corpus relief must first exhaust
his available remedies in state court. 28 U.S.C. § 2254(b)(1)(A). A federal court
may not grant habeas corpus relief for claims previously adjudicated on the merits
by a state court unless the state court adjudication resulted in a decision that (1)
“was contrary to, or involved an unreasonable application of, clearly established
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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); Van Poyck v. Fla.
Dep’t of Corrs., 290 F.3d 1318, 1322 n.4 (11th Cir. 2002) (per curiam) (“[I]n the
context of a habeas review of a state court’s decision–only Supreme Court
precedent can clearly establish the law.”).
When applying § 2254(d), the federal court evaluating a habeas petition must
first determine the applicable “‘clearly established Federal law, as determined by
the Supreme Court of the United States.’” Williams v. Taylor, 529 U.S. 362, 40405 (2000) (quoting 28 U.S.C. § 2254(d)(1)). Next, the federal habeas court must
ascertain whether the state court decision is “contrary to” that clearly established
federal law by determining if the state court arrived at a conclusion opposite to that
reached by the Supreme Court on a question of law, or whether the state court
reached a result different from the Supreme Court on a set of materially
indistinguishable facts. Id. at 412-13. In other words, a state court decision is
“contrary to” clearly established federal law only when it “applies a rule that
contradicts the governing law set forth in [Supreme Court] cases.” Id. at 405; see
also Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam) (a state court decision is not
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contrary to federal law simply because it does not cite Supreme Court authority; the
relevant inquiry is whether the reasoning or the result of the state decision
contradicts that authority).
If the federal habeas court determines that the state court decision is not contrary
to clearly established federal law, it must then determine whether the state court
decision was an “unreasonable application” of clearly established federal law by
determining whether the state court identified the correct governing legal principle
from the Supreme Court’s decisions but unreasonably applied that principle to the facts
of the petitioner’s case.

Williams, 529 U.S. at 413.

“For purposes of

§ 2254(d)(1), ‘an unreasonable application of federal law is different from an
incorrect application of federal law.’” Harrington v. Richter, 131 S. Ct. 770, 785
(2011) (quoting Williams, 529 U.S. at 410) (emphasis in original). “Under
§ 2254(d)(1)’s ‘unreasonable application’ clause, . . . a federal habeas court may not
issue the writ simply because that court concludes in its independent judgment that
the relevant state-court decision applied clearly established federal law erroneously
or incorrectly [but r]ather, that application must also be unreasonable.” Williams,
529 U.S. at 411. Thus,
[a]s a condition for obtaining habeas corpus from a federal court, a
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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.
Harrington, 131 S. Ct. at 786-87; see also Yarborough v. Gentry, 540 U.S. 1, 5
(2003) (per curiam) (“Where [in a federal habeas corpus petition] the state court’s
application of governing federal law is challenged, it must be shown to be not only
erroneous, but [also] objectively unreasonable.”). Additionally, the state court’s
determinations of factual issues are presumed correct. 28 U.S.C. § 2254(e)(1). A
petitioner can overcome this presumption only by presenting “clear and convincing
evidence” that the state court’s findings of fact were erroneous. Id.
C.

Ground One: DNA Evidence

Petitioner argues that the DNA evidence seized from him “during his
discharge from the state prison system where he had been illegally detained for 48
days after his maximum term of imprisonment had expired” violated his Fourth
Amendment rights because law enforcement had no warrant or probable cause to
believe he had committed the rape. (Mem., Doc. 1-1 at 12). Petitioner also
maintains that he was a probationer when the DNA was seized because his sentence
had expired, and the seizure violated his Fifth and Fourteenth Amendment rights to

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privacy and due process. (Id. at 11, 13-14). Petitioner further asserts that “the
DNA seizure is the fruit of an unconstitutional ‘administrative search’ scheme
created by [the] Georgia CODIS statute [O.C.G.A. § 24-4-60], which violates the
4th Amendment.” (Id. at 14-15).
The Magistrate Judge first found that Petitioner’s Fourth Amendment claim
is not reviewable by this Court because he has not shown the lack of a full and fair
opportunity to litigate his claim. (R&R at 10-11). Next, the Magistrate Judge
found that: the state court reasonably applied Padgett v. Donald, 401 F.3d 1273,
1277-81 (11th Cir. 2005), in rejecting Petitioner’s arguments that the DNA
extraction violated his Fifth and Fourteenth Amendment right to privacy and that
the Georgia statute created an “unconstitutional ‘administrative search’ scheme;
there is nothing clearly erroneous about the state court’s finding that Petitioner was
not a probationer at the time of the DNA extraction and that the saliva sample was
taken upon Petitioner being physically discharged from lawful custody; and
Petitioner’s contention that the DNA sample was taken from him contrary to state
law does not state a due process violation. (Id. at 11-12).
Petitioner objects, contending that he was not afforded a full and fair
opportunity to litigate his Fourth Amendment claim because the Georgia Court of
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Appeals “failed to make explicit findings on the issues raised and the factual issues
decided by them were erroneous under the clear and convincing evidence standard.”
(Obj. at 8). Specifically, Petitioner maintains that the state court erred in rejecting
his arguments that his detention beyond the expiration of his sentence was illegal,
and thus, he was a probationer at the time of the DNA extraction. (Id. at 8-26).
“[W]here the State has provided an opportunity for full and fair litigation of a
Fourth Amendment claim, a state prisoner may not be granted federal habeas
corpus relief on the ground that evidence obtained in an unconstitutional search or
seizure was introduced at his trial.” Stone v. Powell, 428 U.S. 465, 494 (1976).
“For a claim to be fully and fairly considered by the state courts, where there are
facts in dispute, full and fair consideration requires consideration by the
fact-finding court, and at least the availability of meaningful appellate review by a
higher state court.” Mincey v. Head, 206 F.3d 1106, 1126 (11th Cir. 2000).
Additionally, the Eleventh Circuit has held that the extraction of saliva from
incarcerated felons under O.C.G.A. § 24-4-60 does not violate either the Fourth
Amendment’s prohibition against unreasonable searches and seizures or a
prisoner’s right to privacy. Padgett v. Donald, 401 F.3d 1273, 1277-81 (11th Cir.
2005).
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In this case, the Georgia Court of Appeals, citing Padgett, ruled as follows:
O.C.G.A. § 24-4-60 generally does not violate the Fourth Amendment,
the Georgia Constitution’s search and seizure provisions, or an
inmate’s right to privacy under the federal or state constitutions.
[Petitioner], however, argues that in his case, because he should have
been released from prison for the Gwinnett County charges on January
2, 2005, the State’s act of taking a DNA sample from him on February
18, 2005, constituted an unreasonable search and seizure in his case,
and the trial court therefore erred by not suppressing the DNA sample
and the subsequent CODIS match to the 1994 DNA sample taken from
E.C.
The exclusionary rule bars the admission of evidence obtained as the
result of an illegal search because it is fruit of the poisonous tree.
However, evidence is not fruit of the poisonous tree simply because it
would not have come to light but for the illegal actions of the [State].
Rather, the inquiry in such a case is whether, granting establishment of
the primary illegality, the evidence to which instant objection is made
has been come at by exploitation of that illegality or instead by means
sufficiently distinguishable to be purged of the primary taint. Thus,
even if evidence would not have been discovered but for the illegal
[State] conduct, if the derivative evidence has only an attenuated link
to the illegality, it need not be suppressed.
[Petitioner]’s argument is without merit. First, as this Court previously
has determined, the Department of Corrections and a convict’s
presentence custodian are in charge of applying credit for time served.
Thus, the correct calculation of [petitioner]’s remaining sentence after
the entry of the order vacating some of his Gwinnett County
convictions was a matter for the Department of Corrections, not the
trial court, and the trial court’s order directing his release is not
necessarily evidence that [petitioner]’s detention after January 2, 2005,
was illegal. Additionally, although [petitioner] contends that the
Gwinnett County trial court’s orders resulted in the immediate change
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in his status from incarcerated inmate to probationer, he cites no law
that supports his contention, and again, because the Department of
Corrections is responsible for calculation and application of terms of
imprisonment, his argument that he was a probationer at the time of the
search is meritless.
Moreover, the DNA sample was taken from [petitioner] on February
18, 2005, rather than January 2, 2005 (the final date [petitioner] argues
that he was legally held in prison), simply because he was physically
discharged from custody on February 18. Thus, even assuming that
[petitioner]’s detention at the time was illegal, the exclusionary rule
does not apply to this case because the DNA extraction (and thereby,
the CODIS match to E.C.’s attacker) was not a result of any illegal
detention by the State. Furthermore, the threat of exclusion of
evidence in this case is not likely to deter future instances of the
presumed illegal conduct in this case—holding an inmate beyond the
end of his sentence term—because the Department of Corrections
employees responsible for calculating prison terms have no stake in the
outcome of future criminal prosecutions.
Accordingly, because the seizure of [petitioner]’s DNA would have
occurred regardless of the illegal search or seizure, the trial court did
not err in denying the motion to suppress the DNA match.
Leftwich, 682 S.E.2d at 617-18 (emphasis in original) (footnotes omitted).
It is clear from the record that Petitioner was afforded an opportunity to
develop his Fourth Amendment claim in the trial court, (see Doc. 10-2 at 16-27), as
well as on appeal. That Petitioner disagrees with the state court’s conclusions of
state law with respect to his status at the time of the DNA distraction does not
demonstrate that he did not receive a full and fair opportunity to litigate his Fourth
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Amendment claim. There is nothing clearly erroneous about the state court’s
factual findings that Petitioner was not a probationer at the time of the DNA
extraction and that the saliva sample was taken upon Petitioner being physically
discharged from lawful custody. Leftwich, 682 S.E.2d at 618. Petitioner’s
argument, as reiterated at length in his objections, that the DNA sample was taken
from him contrary to state law fails to state a due process violation. See Brown v.
Williams, 124 F. App’x 907, 909 (5th Cir. 2005) (finding no cognizable due
process claim where an inmate alleged that a state law authorizing the collection of
DNA samples was incorrectly applied to him). Additionally, the state court’s
application of Padgett was reasonable and entirely consistent with federal law and
the Eleventh Circuit’s ruling. 401 F.3d at 1277-81. Accordingly, the state court’s
rejection of ground one is entitled to deference pursuant to 28 U.S.C. § 2254(d).
See Harrington, 131 S. Ct. at 785; Williams, 529 U.S. at 404-05, 412-13.
Petitioner’s objections to the R&R findings regarding ground one are overruled.
D.

Ground Two: Statute of Limations

Petitioner has not objected to the Magistrate Judge’s finding that ground two
does not state a federal claim for relief. The Court reviews the Magistrate Judge’s
findings for plain error.
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Petitioner argues in ground two that the statutes of limitation on Counts Two
through Six of the superseding indictment were improperly tolled. “[I]t is not the
province of a federal habeas court to reexamine state-court determinations on
state-law questions. In conducting habeas review, a federal court is limited to
deciding whether a conviction violated the Constitution, laws, or treaties of the
United States.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Accordingly, the
Magistrate Judge found that ground two does not justify granting Petitioner a
federal writ of habeas corpus. See Beverly v. Jones, 854 F.2d 412, 416 (11th Cir.
1988) (holding that petitioner’s challenge to his state conviction on the ground that
it was barred by the applicable statute of limitations did not present a “basis for
federal habeas relief since no question of a constitutional nature [was] involved”
and the state court’s rejection of the claim was conclusive). The Court finds no
plain error in the Magistrate Judge’s conclusion that ground two does not warrant
federal habeas relief.
E.

Certificate of Appealability

“A certificate of appealability may issue . . . 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
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reasonable jurists could debate whether (or, for that 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, 483-84 (2000) (internal quotations omitted). Petitioner has not objected
to the Magistrate Judge’s recommendation that a COA be denied. (R&R at 13).
Finding no plain error in the Magistrate Judge’s findings of fact and conclusions of
law that, based on the foregoing analysis of Petitioner’s grounds for relief, the
resolution of the issues presented is not debatable by jurists of reason, the Court
adopts the Magistrate Judge’s recommendation that a COA be denied.
III.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that the Court ADOPTS Magistrate Judge

Russell G. Vineyard’s Final Report and Recommendation [12] and Petitioner
Raleigh Duane Leftwich’s Objections [15] are OVERRULED.
IT IS FURTHER ORDERED that this the Petition for Writ of Habeas
Corpus [1], Respondent’s motion to dismiss for lack of exhaustion [9], and a COA
are DENIED.
The Clerk is DIRECTED to close this action.
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IT IS SO ORDERED, this 26th day of September, 2011.

_______________________________
WILLIAM S. DUFFEY, JR.
UNITED STATES DISTRICT JUDGE

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