Ealey v. Gramiak
Filing
20
ORDER: The Court OVERRULES the Objections 17 , ADOPTS the Report and Recommendation 15 as the opinion and order of the Court, GRANTS respondent's Motion to Dismiss the Claims Challenging the 2009 Guilty Plea Conviction as Untimely 11 , DENIES the Amended Petition 6 , and DECLINES to issue a certificate of appealability. Signed by Judge Richard W. Story on 8/12/2014. (cem)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
VAL EALEY,
Petitioner,
v.
TOM GRAMIAK,
Warden, Dooly State Prison,
Respondent.
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HABEAS CORPUS
28 U.S.C. § 2254
CIVIL ACTION NO.
1:14-CV-0418-RWS-WEJ
ORDER
This case is before the Court on petitioner Val Ealey’s Objections [17] to the
Final Report and Recommendation (“R&R”) [15], which recommends that
respondent’s Motion to Dismiss [11] be GRANTED and that this Amended 28 U.S.C.
§ 2254 Petition [6] and a certificate of appealability be denied.
In reviewing a Magistrate Judge’s Report and Recommendation, the district
court “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). “Parties filing objections to a magistrate’s report and recommendation
must specifically identify those findings objected to. Frivolous, conclusive, or general
objections need not be considered by the district court.” United States v. Schultz, 565
F.3d 1353, 1361 (11th Cir. 2009) (per curiam) (quoting Marsden v. Moore, 847 F.2d
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1536, 1548 (11th Cir. 1988)) (internal quotation marks omitted). Absent objection, the
district judge “may accept, reject, or modify, in whole or in part, the findings and
recommendations made by the magistrate judge,” 28 U.S.C. § 636(b)(1), and “need
only satisfy itself that there is no clear error on the face of the record in order to accept
the recommendation,” Fed. R. Civ. P. 72, advisory committee note, 1983 Addition,
Subdivision (b). Further, “the district court has broad discretion in reviewing a
magistrate judge’s report and recommendation” – it “does not abuse its discretion by
considering an argument that was not presented to the magistrate judge” and “has
discretion to decline to consider a party’s argument when that argument was not first
presented to the magistrate judge.” Williams v. McNeil, 557 F.3d 1287, 1290-92 (11th
Cir. 2009).
I.
Background
A.
Case Number 2008-CR-1875-5
On October 27, 2007, petitioner was stopped for speeding in Clayton County.
(Resp’t Ex. 5 pt. 1 [12-7], at 102-03; Resp’t Ex. 6, pt. 2 [12-11], at 18.) The officer
noticed an odor of marijuana coming from petitioner’s vehicle. (Resp’t Ex. 6, pt. 2 at
18.) Based on the odor, the officer searched the vehicle and found more than an ounce
of marijuana and more than twenty-eight grams of cocaine. (Id.) Petitioner was
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charged in Clayton County case number 2008-CR-1875-5 with trafficking in cocaine,
possession of marijuana, and speeding. (Resp’t Ex. 5 pt. 1 at 102-03.)
Following a bench trial on April 21, 2009, petitioner was found guilty on all
counts. (Resp’t Ex. 5 pt. 1 at 145; Resp’t Ex. 5 pt. 2 [12-8], at 32.) The court imposed
a total sentence of ten years of imprisonment. (Resp’t Ex. 5 pt. 2 at 33.) Thomas
Moran represented petitioner at trial. (Resp’t Ex. 5 pt. 1 at 145.)
Represented by new counsel, Jonathon J. Majeske, petitioner filed a direct
appeal, arguing that his waiver of his right to a jury trial was involuntary. (Resp’t Ex.
5 pt. 3 [12-9], at 4-13.) The Georgia Court of Appeals agreed and reversed petitioner’s
conviction, but concluded that he could be retried. Ealey v. State, 714 S.E.2d 424,
427-28 (Ga. Ct. App. 2011).
On November 29, 2011, represented by Mr. Majeske and Mark J. Issa, petitioner
entered a negotiated guilty plea and again received a total sentence of ten years of
imprisonment, concurrent with Clayton County case number 2009-CR-0163-5.
(Resp’t Ex. 6, pt. 2 at 14-24.) Petitioner did not pursue further direct review.
B.
Case Number 2009-CR-0163-05
On October 29, 2007, officers from the Clayton County Narcotics Unit executed
a search warrant on petitioner’s residence. (Resp’t Ex. 5 pt. 2 at 100.) Upon entry, the
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officers found approximately fifty pounds of marijuana, as well as some cocaine. (Id.;
Resp’t Ex. 2 [12-4], at 2.) Petitioner was charged in Clayton County case number
2009-CR-0163-5 with possession of controlled substances near a school, possession
of cocaine, and trafficking in marijuana. (Resp’t Ex. 5 pt. 3 at 1-2.)
On May 13, 2009, petitioner, represented by Mr. Moran, pleaded guilty to the
trafficking in marijuana charge, and the remaining charges were nolle prossed. (Resp’t
Ex. 5 pt. 2 at 51, 99-105.) The court sentenced petitioner to seventeen years of
imprisonment, concurrent with Clayton County case number 2008-CR-1875-5. (Id.
at 108.) Petitioner did not file a direct appeal.
C.
Post-Conviction Proceedings
On February 28, 2012, petitioner, still represented by Mr. Majeske, filed a
habeas corpus petition in the Superior Court of Dooly County, challenging case
number 2009-CR-0163-5. (Resp’t Ex. 1a [12-1].) Petitioner later filed a pro
se amendment. (Resp’t Ex. 1b [12-2].) In that petition, as amended, petitioner raised
the following seven grounds for relief: (1) Mr. Moran was ineffective for not properly
moving to suppress the contraband found in petitioner’s home on the ground that the
affidavit supporting the search warrant was legally insufficient; (2) Mr. Moran was
ineffective for not moving to quash the indictment on double jeopardy grounds; (3) Mr.
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Moran was ineffective for failing to challenge the insufficient chain of custody reports
as to the marijuana evidence; (4) Mr. Moran was ineffective for not challenging the
marijuana tests evaluations because they were fabricated; (5) the prosecutor and trial
judge exceeded their jurisdiction in bringing a case against petitioner and entering
judgment without evidence or subject matter jurisdiction; (6) the trial court erred in not
allowing petitioner to discharge his retained attorney before trial; and (7) the trial court
abused its discretion in failing to rule on petitioner’s motion to withdraw his plea.
(Resp’t Ex. 1a at 5; Resp’t Ex. 1b.)
On July 30, 2012, petitioner executed another pro se amendment adding a
challenge to case number 2008-CR-1875-5.
(Resp’t Ex. 1c [12-3].)
In that
amendment, petitioner added the following grounds for relief: (8) Mr. Majeske and Mr.
Issa were ineffective for failing to raise a chain of custody and lack of evidence
challenge to the cocaine that formed the basis of his conviction, as the cocaine was
never signed out of evidence for testing by the Georgia Bureau of Investigation
(“GBI”); (9) Mr. Majeske and Mr. Issa were also ineffective for not arguing that the
chain of custody documents revealed false entries; (10) Mr. Majeske and Mr. Issa were
ineffective for failing to raise a claim that the GBI lab report was fabricated, as the
quantities seized and tested differed; (11) Mr. Majeske and Mr. Issa were ineffective
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for (a) not arguing that Mr. Moran was ineffective for not properly moving to suppress
the drug evidence and (b) not allowing petitioner to view the evidence against him;
(12) Mr. Majeske and Mr. Issa were ineffective for not arguing that Mr. Moran was
ineffective for abandoning representation after the trial court denied petitioner’s
motion to suppress; (13) Mr. Majeske was ineffective for not arguing prosecutorial
misconduct based on the prosecutor’s knowledge of the inadmissibility of the drug
evidence due to the errors in the chain of custody reports; and (14) Mr. Majeske was
ineffective for failing to raise the issue of judicial misconduct based on the trial court’s
alleged knowledge of the insufficient chain of custody reports. (Id. at 3-5.)
Following December 11, 2012 and March 19, 2013 evidentiary hearings wherein
petitioner appeared pro se, the state habeas court entered a written order denying the
petition on April 8, 2013. (Resp’t Ex. 2; Resp’t Ex. 5 pt. 1 at 1-95; Resp’t Ex. 6 pt. 1
at 1-116.) The Georgia Supreme Court dismissed as untimely petitioner’s application
for a certificate of probable cause to appeal the denial of habeas corpus relief on
January 6, 2014. (Resp’t Ex. 4 [12-6].)
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Petitioner filed this federal habeas action on February 5, 2014.1 (Pet. [1] 3.) In
his Amended Petition, petitioner raises the following grounds for relief regarding
Clayton County case number 2008-CR-1875-52: (1) his conviction was obtained based
on fabricated evidence and an unlawful traffic stop in that the officers “illegally and
unconstitutionally profiled, investigated, stopped and arrested . . . petitioner without
due process or probable cause”; (2)(a) the state, defense counsel, and the trial court
used fraud to convict petitioner as evidenced by the void indictment, fabricated
evidence, and that no physical evidence was presented at the bench trial, (b) Mr. Moran
was ineffective for filing an insufficient motion to suppress, (c) Mr. Moran was also
ineffective for not moving to have the charges dismissed due to the void indictment,
GBI log, laser log, and insufficient evidence, (d) Mr. Moran conspired with the state
to force petitioner into a stipulated bench trial and stipulating to void evidence and
reports, and (e) attorneys Kipling Jones and Michelle Bass Lord provided him
1
Pursuant to the “mailbox rule,” a pro se prisoner’s federal habeas petition is
deemed filed on the date it is delivered to prison authorities for mailing. 28 U.S.C.
foll. § 2254, Rule 3(d); Adams v. United States, 173 F.3d 1339, 1341 (11th Cir. 1999)
(per curiam).
2
Because the Court finds, as discussed below, that petitioner’s challenge to
Clayton County case number 2009-CR-0163-5 is time barred, petitioner’s grounds for
relief concerning that case are not listed here.
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ineffective assistance in connection with his motion for a new trial;3 (3)(a) conspiracy
and fraud by the state, appellate counsel and the trial court deprived petitioner of a full
and fair appeal, (b) Mr. Majeske was ineffective for failing to move to “void” the
conviction, (c) Mr. Majeske deceitfully told petitioner that he could not prosecute the
motion to suppress and would have to file a habeas corpus petition, (d) Mr. Majeske
failed to appeal the denial of the motion to suppress, raise a claim that the indictment
was void, argue that the state had withheld favorable evidence from the video of the
traffic stop, and have a transcript of the motion for a new trial hearing prepared and
transmitted to the appellate court, (e) Mr. Majeske and Mr. Issa withheld facts of
petitioner’s case and related to the void indictment and forced him to enter a guilty
3
As part of ground two, petitioner also asserts that the trial court manipulated
and forced him into waiving his right to a jury trial. (Am. Pet. 35) Petitioner raised
this claim on direct appeal, and the Georgia Court of Appeals reversed his conviction
and allowed the state to retry him. Ealey, 714 S.E.2d at 427-428. Petitioner is entitled
to no further relief in this Court with respect to this claim.
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plea, and (f) the indictment is void because petitioner’s signature was forged onto it;4
and (4) his right against double jeopardy has been violated.5 (Am. Pet. 12-33, 35-42.)
Respondent argues, in pertinent part, that petitioner’s challenge to case number
2009-CR-0163-5 is untimely, ground one is waived by petitioner’s guilty plea, and
grounds two through four are procedurally defaulted. (Resp’t Br. [11-1], at 5-13.)
Petitioner responds, disputing respondent’s arguments and reasserting the merits of his
grounds for relief. (Pet’r’s Resp. [13].)
The magistrate judge agrees with respondent’s analysis of this case and
recommends that the Motion to Dismiss be granted and that the Amended Petition be
denied. (R&R at 8-18.) Petitioner objects, in pertinent part, that the magistrate judge
erred by failing to issue a briefing schedule, that his challenge to case number 2009-
4
As part of ground three, petitioner also complains of several alleged defects in
the state habeas proceedings, including Mr. Majeske’s initial filing of the petition.
(Am. Pet. 39-42.) However, “while habeas relief is available to address defects in a
criminal defendant’s conviction and sentence, an alleged defect in a collateral
proceeding does not state a basis for habeas relief.” Quince v. Crosby, 360 F.3d 1259,
1262 (11th Cir. 2004). Therefore, these claims are not cognizable in federal habeas
corpus proceedings and are not further addressed herein.
5
In his Objections [17] and Brief [18], petitioner attempts to re-characterize his
grounds for relief and raise new claims. For example, petitioner now presents ground
one as an ineffective assistance of counsel claim. (Objections 10.) Because these
claims were not presented to the magistrate judge, the Court will not consider them.
See Williams, 557 F.3d at 1292.
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CR-0163-5 is timely under 28 U.S.C. § 2244(d)(1)(B), that he is actually innocent, that
grounds two through four are not procedurally defaulted because he “essentially”
raised them in his state habeas proceedings, and, in the event that the Court finds them
procedurally defaulted, the default should be excused based on his actual innocence.
(Objections 1-2, 4-8, 10-11.)
II.
Analysis of Petitioner’s Objections
Regarding petitioner’s first objection, neither a response to the petition nor a
reply are required unless ordered by the Court. See 28 U.S.C. foll. § 2254, Rule
5(a),(e). There is no requirement that the Court issue a briefing schedule in § 2254
cases. Accordingly, this objection lacks merit.
A § 2254 petition is timely if filed within one year of “the date on which the
impediment to filing an application created by State action in violation of the
Constitution or laws of the United States is removed, if the applicant was prevented
from filing by such State action.” 28 U.S.C. § 2244(d)(1)(B). Petitioner contends that,
on June 1, 2009, the trial court appointed Mr. Jones to represent petitioner in
connection with his motion to withdraw his guilty plea in case number 2009-CR-01635 and then substituted Ms. Lord as petitioner’s counsel when Mr. Jones failed to appear
in court on October 27, 2009. (Objections 5.) According to petitioner, Ms. Lord
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amended the motion for new trial filed in case number 2008-CR-1875-5 to “reflect the
motion to withdraw plea” in the 2009 case and to add a motion in arrest of the
judgment in the 2009 case. (Id.) Petitioner states that a hearing was then scheduled
for March 23, 2010. (Id.) “Petitioner, unaware of the amended motion filed by [Ms.]
Lord, retained attorneys Mark Issa and Jonathan Majeske,” and the hearing was
continued until April 27, 2010. (Id.) Petitioner was present at this hearing, and the
court, with the agreement of petitioner’s attorneys, dismissed the motions filed in case
number 2009-CR-0163-5. (Id. at 6.) Petitioner states that he relied on Mr. “Majeske’s
false assertion that the trial court could not hear the motion to withdraw because the
term of court had expired and that he . . . would have to file a habeas corpus petition.”
(Id.) Petitioner’s counsel then waited twenty-two months, until February 28, 2012, to
file his state habeas petition. (Id.) Petitioner contends that these facts created an
impediment to his filing a timely federal habeas petition.6 (Id. at 6-7.)
6
To the extent that these allegations could be construed as an argument for
equitable tolling, petitioner has not alleged any facts to show that he acted with due
diligence. See Holland v. Florida, 560 U.S. 631, 649 (2010) (The limitations period
set forth in “§ 2244(d) is subject to equitable tolling” when a petitioner “shows
‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way’ and prevented timely filing.”) (emphasis added);
George v. Sec’y Dep’t of Corr., 438 F. App’x 751, 753 (11th Cir. 2011) (per curiam)
(Petitioner cannot “establish reasonable diligence merely by retaining [a
postconviction] attorney.” Rather, at a minimum, petitioner must “diligently inquire[]
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Petitioner fails to show that an impediment “created by State action” prevented
him from timely filing this action. An incompetent postconviction attorney “is not the
type of State impediment envisioned in § 2244(d)(1)(B).” Lawrence v. Florida, 421
F.3d 1221, 1226 (11th Cir. 2005). Moreover, Mr. Majeske’s advice concerning
petitioner’s need to file a state habeas petition, rather than a motion to withdraw his
guilty plea, was correct. See Stokes v. State, 695 S.E.2d 206, 207 (Ga. 2010) (“A
motion to withdraw a guilty plea is subject to the term-of-court rule, which bars a trial
court from consideration of such a motion once the term of court in which the subject
plea was entered has expired.” Moreover, a defendant asserting that he received
ineffective assistance of counsel in connection with his guilty plea “must seek to
withdraw the guilty plea through habeas corpus proceedings.”) (citations omitted).
Next, petitioner asserts that he is actually innocent of the charges in both cases.
(Objections 7-8.) Regarding case number 2008-CR-1875-5, petitioner contends that
“the alleged speeding violation that precipitated the . . . October 27, 2007, arrest was
fabricated to establish probable cause to stop and arrest him” and “the video from the
traffic stop would potentially exonerate him.” (Id. at 7.) Petitioner further states, as
of his attorney concerning the filing of the post-conviction motion or the effect that a
later filing would have on a federal habeas corpus petition.”). Thus, petitioner is not
entitled to equitable tolling.
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to case number 2009-CR-0163-5, that “he was in custody prior to and during the police
alleged seiz[ure of] contraband from his residence on October 29, 2007.” (Id.)
According to petitioner, “the state never had actual evidence to present in court to
support their charges.” (Id.)
A plea of actual innocence, if proved, can overcome the one-year limitations
period for filing a federal habeas corpus action. McQuiggin v. Perkins, 133 S. Ct.
1924, 1928 (2013). “‘To be credible,’ a claim of actual innocence must be based on
reliable evidence not presented at trial.” Calderon v. Thompson, 523 U.S. 538, 559
(1998) (citing Schlup v. Delo, 513 U.S. 298, 324 (1995)). To establish his actual
innocence, a petitioner must persuade “the district court that, in light of the new
evidence, no juror, acting reasonably, would have voted to find him guilty beyond a
reasonable doubt.” Schlup, 513 U.S. at 329. “The [actual innocence] gateway should
open only when a petition presents ‘evidence of innocence so strong that a court cannot
have confidence in the outcome of the trial unless the court is also satisfied that the
trial was free of nonharmless constitutional error.’” McQuiggin, 133 S.Ct. at 1936
(citing Schlup, 513 U.S. at 316).
Petitioner has not cited to any “reliable evidence not presented at trial” to
support his actual innocence claim. Accordingly, petitioner has failed to meet Schlup’s
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demanding standard, and this § 2254 petition is untimely as to case number 2009-CR0163-5.
Finally, the fact that the grounds for relief petitioner raises in this federal
petition may be somewhat similar to those he raised in his state habeas proceedings
does not satisfy § 2254(b)(1)(A)’s requirement that petitioner exhaust his state court
remedies. The Court agrees with the magistrate judge’s findings that petitioner did not
present the claims he raises in grounds two through four of his federal habeas petition
to the state courts and that those grounds are now procedurally defaulted. Moreover,
petitioner’s actual innocence claim does not excuse this procedural default because, as
noted above, he has not meet Schlup’s demanding standard. See Mize v. Hall, 532
F.3d 1184, 1195 (11th Cir. 2008) (stating that Schlup standard applies to “fundamental
miscarriage of justice exception to the procedural default doctrine”).
Having conducted a careful review of the R&R and petitioner’s objections
thereto, the Court finds that the magistrate judge’s factual and legal conclusions were
correct and that petitioner’s objections have no merit.
III.
Conclusion
For the foregoing reasons, the Court OVERRULES the Objections [17],
ADOPTS the R&R [15] as the opinion and order of the Court, GRANTS respondent’s
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Motion to Dismiss the Claims Challenging the 2009 Guilty Plea Conviction as
Untimely [11], DENIES the Amended Petition [6], and DECLINES to issue a
certificate of appealability.
IT IS SO ORDERED this 12th day of August, 2014.
________________________________
RICHARD W. STORY
United States District Judge
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