Muhammad v. Allen

Filing 33

OPINION and ORDER ADOPTING 21 Final Report and Recommendation. IT IS FURTHER ORDERED that Petitioner's 24 Objections to the R&R are OVERRULRED. IT IS FURTHER ORDERED that Petitioner's 28 First Motion to Substitute Party and 29 Secon d Motion to Substitute Party are GRANTED. The Clerk of Court is DIRECTED to substitute Warden Cedric Taylor as Respondent. IT IS FURTHER ORDERED that Petitioner's 1 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus is DENIED. A COA is D ENIED. IT IS FURTHER ORDERED that Petitioners 30 Motion to Stay and Certificate of Appealability and 32 Supplemental Motion to Stay and Expand the Record and Certificate of Appealability are DENIED. IT IS FURTHER ORDERED that this action is DISMISSED. Signed by Judge William S. Duffey, Jr on 2/8/2018. (btql)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
HAKIM MUHAMMAD,
Petitioner,
v.

1:15-cv-4148-WSD

MARTY ALLEN, Warden,
Respondent.

OPINION AND ORDER
This matter is before the Court on Magistrate Judge Alan J. Baverman’s
Final Report & Recommendation [21] (“Final R&R”). The Final R&R
recommends the Court deny Petitioner Hakim Muhammad’s (“Petitioner”)
28 U.S.C. § 2254 Petition for Writ of Habeas Corpus [1] (“Section 2254 Petition”).
Also before the Court are Petitioner’s Objections to the Final R&R [24]
(“Objections”), First Motion to Substitute Party [28], Second Motion to Substitute
Party [29], Motion to Stay and Certificate of Appealability [30], and Supplemental
Motion to Stay and Expand the Record and Certificate of Appealability [32].

I.

BACKGROUND1
Petitioner, confined in Baldwin State Prison in Hardwick, Georgia,

challenges his October 21, 2010, Rockdale County, Georgia convictions. On
November 4, 2009, officers responded to a 911 call from a concerned neighbor
who reported the sound of breaking glass at or near the home recently rented by
Sheila Muhammad. Muhammad v. State, 725 S.E.2d 302, 304 (Ga. 2012).
Officers arrived at the home to find Sheila strangled to death and Petitioner,
Sheila’s estranged husband, attempting to leave. Id. On February 1, 2010,
Petitioner was indicted in Rockdale County for malice murder, two counts of
felony murder, two counts of aggravated assault, and one count of tampering with
evidence. Id. at 303 n.1. The trial court directed a verdict on one count of felony
murder and one count of aggravated assault, and, following a jury trial on
October 18, 2010, Muhammad was found guilty on the remaining charges. Id.
The trial court sentenced Muhammad to life imprisonment for malice murder with
six concurrent months for tampering with evidence. Id. The conviction for felony

1

The facts are taken from the Final R&R and the record. The parties have not
objected to any specific facts in the Final R&R, and the Court finds no plain error
in them. The Court thus adopts the facts set out in the Final R&R. See Garvey v.
Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993).

2

murder was vacated by operation of law, and the conviction for aggravated assault
merged with the conviction for malice murder. Id.
Muhammad filed a motion for new trial on March 28, 2011, and an amended
motion on July 1, 2011. Id. The motion for new trial was denied on
August 4, 2011. Id. Muhammad subsequently filed a timely notice of appeal, and
on April 14, 2012, the Georgia Supreme Court affirmed the judgment against
Petitioner. Id. at 305. Petitioner filed a state habeas corpus petition in the
Lowndes County Superior Court, which was denied on July 7, 2015.
([10.1]-[10.4]). On November 2, 2015, the Georgia Supreme Court denied further
review. ([10.6]). On November 27, 2015, Petitioner filed his Section 2254
Petition raising the following seven grounds for federal relief: (1) insufficient
evidence; (2) a defective indictment; (3) prosecutorial misconduct; (4) ineffective
assistance of appellate counsel on similar transaction evidence; (5) ineffective
assistance of appellate counsel on ineffective assistance of trial counsel; (6)
ineffective assistance of appellate counsel on additional issues; and (7)
unconstitutional jury instructions and ineffective assistance of counsel. ([1] at 6;
see also [21] at 4).
On August 2, 2016, the Magistrate Judge issued his Final R&R,
recommending denial of Petitioner’s Section 2254 Petition. The Magistrate Judge

3

concluded that (1) there was sufficient evidence to support Petitioner’s conviction;
(2) because there was no viable Fifth Amendment claim, neither trial nor appellate
counsel were ineffective for failing to challenge the indictment on Fifth
Amendment grounds; (3) Petitioner’s prosecutorial misconduct, ineffective
assistance of trial counsel, and erroneous jury instruction claims fail because they
are procedurally defaulted; and (4) Petitioner fails to show any viable claim of
ineffective assistance of appellate counsel for failing to raise ineffective assistance
of trial counsel on prosecutorial misconduct. ([21] at 10-52). The Magistrate
Judge also recommended that this Court deny a Certificate of Appealability
(“COA”) because Petitioner failed to make a substantial showing of the denial of a
constitutional right. (Id. at 55).
On August 18, 2016, Petitioner filed his Objections to the Final R&R. The
Objections, which consist of twenty-two hand-written pages, largely restate the
arguments Petitioner made in support of his Section 2254 Petition. Petitioner
claims that “nothing the Magistrate has suggested is close to being conclusive
enough to cancel out the facts cited in the text so completely as to justify summary
denial of [P]etitioner[’s] claims of insufficient evidence or of his other grounds.”
(Obj. at 21).

4

On May 4, 2017, Petitioner filed his First Motion to Substitute Party, and on
May 19, 2017, Petitioner filed his Second Motion to Substitute Party seeking the
same relief requested in his First Motion. Petitioner seeks to change Respondent’s
name to the warden of the institution Petitioner was transferred to following the
filing of his Section 2254 Petition.2 Also on May 19, 2017, Petitioner filed a
Motion to Stay and Certificate of Appealability. On June 22, 2017, Petitioner filed
a Supplemental Motion to Stay and Expand the Record and Certificate of
Appealability [32].3

2

Petitioner states he has been transferred to Baldwin State Prison, and he
seeks to change Respondent’s name to Cedric Taylor, 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
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 Taylor,
Petitioner’s First Motion to Substitute Party and Second Motion to Substitute Party
are granted.
3
Petitioner seeks additional time to expand the record “so vital information
and testimony” can be obtained from State witnesses Deputy Huner and Hakeem
Davis. ([30]). In a habeas corpus proceeding, “[a] judge may, for good cause,
authorize a party to conduct discovery under the Federal Rules of Civil Procedure.”
Rule 6, Rules Governing Section 2254 Cases in the United States District Court.
The party requesting discovery must show good cause that the evidence he seeks
would create doubt that is sufficient to undermine confidence in his conviction.
Arthur v. Allen, 459 F.3d 1310, 1310 (11th Cir. 2006). Good cause cannot be
based on speculation or hypothesis. Id. Under AEDPA, a federal petitioner,
moreover, is not entitled to discovery on factual matters that, as a result of lack of

5

II.

DISCUSSION
A.

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 review de novo.

diligence, he failed to develop in state court. Crawford v. Head, 311 F.3d 1288,
1329 (11th Cir. 2002).
Petitioner seeks now, five years since his conviction, to obtain an affidavit
and/or conduct a deposition of two state witnesses—something that could have
been done years ago. Petitioner has not reasonably or diligently pursued the
development of this material, and, as indicated in this Order, none of these matters
would bring into question other significant evidence against Petitioner. The Court
therefore denies Petitioner’s Motions.

6

B.

Procedurally Defaulted Claims

Petitioner raises a number of grounds for relief that he did not present at the
trial level or on direct appeal, including (1) ineffective assistance of appellate
counsel regarding his grand jury indictment; (2) erroneous jury instruction on
presumption; and (3) prosecutorial misconduct.
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.
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).

7

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 show cause, the petitioner must demonstrate ‘some objective
factor external to the defense’ that impeded his [or counsel’s] effort to raise the
claim properly in state court” or that the matter was not raised because of
ineffective assistance counsel. Id. (quoting Murray v. Carrier, 477 U.S. 478, 488
(1986)). If a petitioner shows cause, he must also show prejudice, which requires a
showing of an actual and substantial disadvantage to his defense. Id.

8

1.

Ineffective Assistance of Appellate Counsel Regarding Grand
Jury Indictment

In his Section 2254 Petition, Petitioner argues that his Fifth Amendment
rights were violated because of a defective indictment. ([1] at 6). Petitioner
specifically contends that (1) the indictment cites statutory language but not
malicious intent or the elements of the charged crimes in Counts One through Six;
(2) the grand jury was never presented evidence to show that Petitioner was present
when the crime was committed; (3) the indictment was based on the false
testimony of Deputy Huner, which would have been shown to be false if a picture
had been taken from Huner’s vantage point when entering the victim’s home; (4)
certain test results were not completed until after the grand jury returned the
indictment; (5) the grand jurors were not presented with anything to rebut
Petitioner’s alibi defense that he was napping during the murder; and (6) there was
otherwise insufficient evidence to support the indictment. (Id. at 15-19).
Because Petitioner did not present this claim on direct appeal or collateral
review, it is procedurally defaulted. Petitioner, moreover, cannot overcome this
procedural default because he cannot show cause or actual prejudice. This is
because the Fifth Amendment’s grand jury indictment requirement is not
applicable to the States under the Fifth Amendment. Heath v. Sec’y, Fla. Dep’t of
Corr., 717 F.3d 1202, 1204-05 (11th Cir. 2013) (“‘The Fifth Amendment’s grand
9

jury indictment requirement’ is not applicable to the States.”) (quoting McDonald
v City of Chicago, __ U.S. __, 130 S.Ct. 3020, 3035 n.13 (2010)). The Court finds
that Petitioner’s appellate counsel could not have been deficient for failing to raise
a claim that was not cognizable.4 Because Petitioner does not provide sufficient
argument to show cause or prejudice for his procedural default, the Court denies
habeas corpus relief on this claim.
4

To the extent Petitioner intended to argue that the grand jury indictment
violated his Sixth Amendment rights, which requires that “the accused shall enjoy
the right . . . to be informed of the nature and cause of the accusation . . . ,” the
Court finds that this claim was presented on collateral review and that the state
habeas court’s decision demonstrates a reasonable application of the law. The state
habeas court found:
Petitioner has not shown that appellate counsel acted unreasonably
when, after reviewing the indictment, counsel did not raise any issues
as to the indictment. Despite Petitioner’s claims that three counts of
murder in the indictment were incorrect, Petitioner was only convicted
and sentenced for one of those counts – i.e., malice murder; the court
directed a verdict of acquittal on the count two felony murder and
merged the count three felony murder, of which Petitioner was found
guilty, into the malice murder. The Court’s review of count one,
malice murder, shows that it tracks the statutory language of
O.C.G.A. § 16-5-1. Accordingly, counsel acted reasonably when he
saw no basis on which to allege that trial counsel was ineffective
when trial counsel did not challenge counts one, two and three of the
indictment. Petitioner also failed to establish the requisite prejudice in
this regard.

([10.4] at 9). On de novo review, the Court finds the state habeas court’s
consideration of whether the grand jury indictment violated Petitioner’s Sixth
Amendment rights warrant deference pursuant to 28 U.S.C. § 2254(d).

10

2.

Jury Instruction on Presumption

Petitioner asserts that his due process rights were violated by the following
jury instruction on presumption:
Now ladies and gentlemen, every person is presumed to be of sound
mind and discretion. But this presumption may be rebutted. You may
infer, ladies and gentlemen, if you wish to do so, that the acts of a
person of sound mind and discretion are the product of that person’s
will, and a person of sound mind and discretion intends the natural
and probable consequences of those acts. Whether or not you make
such inference or inferences is a matter solely within the discretion of
the jury.
([10.21] at 32). Petitioner argues that the instruction caused him to be convicted
without proof beyond a reasonable doubt of intent to kill and asserts that his trial
counsel and appellate counsel were ineffective on this issue. ([1] at 43-44).
Petitioner did not raise this issue at trial, on appeal, or on collateral review, and
thus it is procedurally defaulted.
The Court finds further that Petitioner fails to overcome his procedural
default. Even if trial counsel challenged the instruction or appellate counsel raised
the issue on appeal, there is no reason to believe that the challenge would have
been successful. The presumption instruction, taken directly from the Georgia

11

state court pattern jury instructions,5 has been upheld by the Supreme Court of
Georgia as a correct statement of the law. Rivera v. State, 282 Ga. 355, 365(9)
(Ga. 2007); see also Pendley v. State, 308 Ga. App. 821, 826 (2011) (rejecting the
petitioner’s argument that reading the identical charge impermissibly shifted the
burden of persuasion to the petition on the element of intent). The Court therefore
finds Petitioner cannot show cause or prejudice with respect to his jury instruction
claim, and it is dismissed as procedurally defaulted.
3.

Prosecutorial Misconduct

Petitioner argues in his Section 2254 Petition that his conviction was
obtained by prosecutorial misconduct. That is, Petitioner alleges that the
prosecution (1) manipulated his son, Hakeem, and presented false testimony by
Hakeem that Petitioner was the driver and the victim the passenger on the morning
of the murder when Hakeem previously told the assistant district attorney that
Petitioner was the passenger; (2) presented false testimony by Deputy Huner that
he saw Petitioner coming down the stairs, turning around, and proceeding back up
the stairs because Deputy Huner could not have possibly seen this from his vantage
point; (3) presented false testimony of Inez Watson; (4) during closing statements
5

See Council of Superior Court Judges, Suggested Pattern Jury Instructions,
Fourth Ed., Vol. II, § 1.41.12 (2008).

12

misstated Dr. Smith’s testimony and argued Petitioner committed the murder; (5)
asserted, without factual support, that Petitioner strangled the victim from behind;
(6) asserted eight times, without adequate evidentiary support, that Petitioner killed
the victim; (7) vouched for the credibility of the state witnesses; (8) asserted as a
divorce motive, which was not substantiated by the record; (9) asserted that
Petitioner staged things to look like a burglary; and (10) told the jury there were
marks on the victim’s neck to match the ribbon that killed the victim. ([1] at 2030).
Petitioner did not raise the issue of prosecutorial misconduct on direct
appeal, but he did raise it as part of his state habeas proceedings. ([10.4] at 11-12).
The state habeas court found the prosecutorial misconduct claim failed under
O.C.G.A. § 9-14-48(d) because it was procedurally defaulted based on Petitioner’s
failure to raise it on direct appeal and because Petitioner had not overcome his
default by a showing of cause of prejudice. (Id. at 14-15). Under Georgia law, a
claim of trial error that is not raised on direct appeal generally is deemed waived
and thus procedurally barred from consideration in a subsequent state proceeding
for collateral relief. Chatman v. Mancill, 278 Ga. 488, 489 (2004); Black v.
Hardin, 255 Ga. 239, 239-40 (1985) (holding that failure to timely raise an issue at
trial “or to pursue the same on appeal” constitutes a procedural default”). Petitioner

13

argues in his Objections that the issue was not raised on direct appeal because of
ineffective assistance of appellate counsel. ([24] at 13). Petitioner fails, however,
to provide any argument or supporting facts demonstrating why his appellate
counsel was ineffective in raising the issue of prosecutorial misconduct on appeal.
The Court will not disturb the state habeas court’s determination, and also finds
Petitioner’s prosecutorial misconduct claim was procedurally defaulted.
Petitioner’s Objections are overruled, and the claim is dismissed.
C.

Grounds Adjudicated on the Merits

Petitioner raises the following claims that were adjudicated on the merits on
direct appeal or by the state habeas court: (1) sufficiency of the evidence to support
conviction; (2) similar transaction evidence improperly admitted; (3) ineffective
assistance of appellate counsel.
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.”

14

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).
1.

Sufficiency of the Evidence

Petitioner first challenges whether the evidence presented at trial was
sufficient to convict him. As part of Petitioner’s direct appeal, the Georgia
Supreme Court summarized the evidence underlying Petitioner’s conviction in its
April 24, 2012, decision as follows:
[I]n the fall of 2009, Muhammad and his wife Shelia separated. On
October 17, 2009, Shelia rented a house that was in short walking
distance from the couple's former marital residence, where
Muhammad continued to live. At approximately 7:05 a.m. on
November 4, 2009, Muhammad’s son, Hakeem, saw Muhammad and
Shelia leave the marital residence in Shelia’s car while Hakeem was
waiting for his school bus. Hakeem observed that Muhammad was
driving and that the vehicle turned in the direction of Shelia's new
residence.
At about 7:36 a.m., Gbolii Burton, who lived next door to the house
Shelia had just rented, heard the sound of breaking glass outside and
15

called 911. Deputy Huner and Deputy Blake responded. Deputy
Huner went to the back of the house and saw a broken window with
glass lying on the ground below the window, indicating that the
window had been broken from the inside. Through the window,
Deputy Huner observed Muhammad descending an interior staircase.
As soon as Muhammad saw the deputy, he turned and went back up
the stairs. Deputy Huner radioed Deputy Blake that Muhammad was
coming out the front door, and Deputy Blake confronted Muhammad
there. Deputy Blake testified that Muhammad “was scurrying trying
to leave the area real fast.” After being ordered to stop, Muhammad
calmly said, “My wife is inside and I don't think she's breathing.”
Inside the home, Shelia’s body was found lying on the floor next to a
piece of white ribbon, which Shelia’s son, Javonte, had previously
seen lying on the floor of Muhammad’s home. Based on marks on her
neck, the State’s medical experts determined that the ribbon had been
used to strangle Shelia to death. DNA testing showed that Shelia’s
DNA was on the middle and ends of the ribbon where it had been
around her neck, but Muhammad’s DNA was only on the ends of the
ribbon, where it would have been tied or held during strangulation.
Following a search, Shelia’s wedding ring was found in Muhammad’s
pocket. Later, when asked by Lt. Wolfe in a recorded interview why
the situation between Muhammad and Shelia had gone so far and
become violent, Muhammad replied that Shelia had actually tried to
choke him. Muhammad admitted he removed Shelia’s wedding ring
from her finger as she lay on the floor and put it in his pocket. He also
admitted he broke the rear window. Muhammad denied any intention
to harm Shelia, however, and testified that he broke into her rental
home from the outside to see if she was okay.
In addition, the evidence showed that, on at least two prior occasions,
there had been domestic violence between Muhammad and Shelia. In
one such instance, Muhammad grabbed Shelia by the throat prior to
pushing her backward. Also, similar transaction evidence was
admitted showing that Muhammad had a prior romantic involvement
with Alvinice Muhammad (no relation). Alvinice purchased a home
in Marietta that she shared with two female housemates. Alvinice
16

allowed Muhammad to stay at that home for a few weeks. Muhammad
began acting violently toward Alvinice, however, and Alvinice asked
Muhammad to move out. Muhammad refused. Alvinice then decided
to obtain a restraining order against Muhammad. On the morning she
planned to do so, Alvinice woke to find Muhammad straddling her
body and choking her with both hands on her throat. Muhammad
released Alvinice only after one of her roommates ran into the room.
Thereafter, Alvinice obtained the restraining order. In retaliation,
Muhammad burned down Alvinice’s house, telling her: “I told you I
could get into the house anytime I got ready, and if I can't live in the
house, nobody can live in the house.”
Muhammad, 725 S.E.2d at 304.
Shelia’s certificate of death confirms that her cause of death was ligature
strangulation, rules her death a homicide, and notes that her approximate time of
death was 7 a.m. ([10.29] at 12). During Defendant’s June 13, 2013, state habeas
corpus evidentiary hearing, John T. Huner, a police officer for the Rockdale
County Sheriff’s Department, testified:
As I approached the house to the broken window, I stopped just on
this side of the broken window to see if I could hear anything coming
from inside, at which time, I peered around the window without
exposing myself. And shortly thereafter, I observed a couple of legs
coming down the stairs, because I could see a stairway coming down.
I watched until a person appeared at the bottom of the steps. The
person stood there for a moment. I kept my eye on the person because
I wanted to see if he might have a weapon or something in his hand
. . . . [W]hen I saw that he was not holding anything in his hand such
as a weapon, I moved myself in front of the window. He was still
standing there and he was kind of looking down. I’m looking at him.
He looks up. I look at him. He immediately turns around, starts
walking back up the stairs, at which time, I got on the radio and
advised Officer Blake that he was coming out the front door.
17

([10.16] at 31-32). Lieutenant Matthew Wolfe of the Rockdale County Sheriff’s
Department also testified about what he observed after he was called to investigate
the crime scene. He stated he observed a normal skin tone “except for the face
which was purple.” ([10.16] at 73-74). He noted that “[i]t seemed the body was
limp” and “[t]here was no rigor or . . . lividity,” which signaled the individual was
recently deceased. (Id.).
In a November 4, 2016, police report, Lieutenant Wolfe stated that he
showed the murder weapon, a ribbon, to the victim’s children, Javonte and
Hakeem, and that Javonte stated he had seen the ribbon in the marital residence but
that Hakeem had not. ([10.9] at 70-71). In another report, Jennifer L. Perry, also a
police officer for the Rockdale County Sherriff’s Department, stated that Javonte
reported to her that “he ha[d]n’t seen a cloth that has a gold design on it.” ([10.9]
at 78-79). Javonte testified at trial that he had seen the ribbon but later clarified
that he had not seen it in at least one of the houses they had recently stayed.
([10.19]).
Dr. Geoffrey Smith, the medical examiner and an expert in forensic
pathology, testified that the victim had a ligature mark around her neck, which was
a distinct imprint on the victim’s neck and about the width of a finger, and that she
died as a result of ligature strangulation, i.e., the ligature had been applied around
18

her neck with sufficient force to kill her. ([10.18] at 19). Dr. Smith further
testified that the intense congestion of blood in the victim’s facial tissue went “a
long way” in suggesting the cause of death was strangulation—although such
intense congestion, alone, is not “specific for strangulation.” ([10.18] at 25). The
ligature mark was on the front of the victim’s neck, and Dr. Smith testified that this
was consistent with the assailant strangling her from behind. (Id. at 30). Dr.
Smith testified that the marks on the victim’s skin included lines that occurred in a
parallel array and were consistent with the pattern on the piece of fabric found near
the victim’s body. ([10.18] at 41-42). DNA forensic expert Cynthia Wood
testified that the ribbon had two DNA profiles on it, that the victim’s DNA was in
the middle and ends of the ribbon, and that Petitioner’s DNA was on only the ends.
(Id. at 53, 59). Criminal investigator Amanda Pilgrim—who admitted she failed to
conduct follow-up testing on Petitioner’s hands—testified that she observed
discoloration on the creases of Petitioner’s fingers, that, in her experience,
potentially could be marks or a burn. ([10.16]).
Petitioner testified that he and his wife left the marital residence at
approximately 7:10 a.m., and that, when he remembered he left a new pack of
cigarettes at the home, his wife dropped him back off at approximately 7:11 a.m. or
7:12 a.m. ([10.20]). Petitioner then apparently fell asleep and woke up at what he

19

thought was 8:23 a.m. but which later turned out to be earlier. (Id.). Petitioner
testified that he woke up, took a walk, and “just happened” to walk towards his
wife’s new house, and that he was concerned about her because she had recently
been suicidal. (Id.). Petitioner testified that when he arrived at the house and no
one responded, he broke the rear window, entered the home, and found his wife
dead. (Id.). Petitioner stated that he removed the ribbon from her neck and took
the ring off her finger. (Id.).
On appeal, Petitioner contended that the evidence was insufficient to support
the verdict against him. Muhammad, 725 S.E.2d at 303. The Georgia Supreme
Court found, however, under Jackson v. Virginia, 443 U.S. 307 (1979), that the
evidence was sufficient to convict Defendant. Id. at 304. In his Section 2254
Petition, Petitioner contends the evidence is insufficient because (1) Petitioner’s
sons provided inconsistent testimony regarding the ribbon used to strangle the
victim; (2) the state never presented evidence of the origin of the ribbon; (3)
Petitioner’s DNA was on only the ends of the ribbon; (4) the state failed to show
that Petitioner was present with the victim during the twenty to thirty minutes
before her death, when Petitioner testified that he was asleep; (5) the medical
examiner’s evidence was inconclusive on whether the victim was strangled from
the front or back of her person; (6) no DNA evidence from the victim’s finger nails

20

was ever presented; and (7) the medical examiner testified that the ligature marks
on the victim were not specific to strangulation. ([1] at 12-14). Petitioner, in his
Objections to the Final R&R, essentially repeats the arguments in his Section 2254
Petition. He objects to the Magistrate Judge’s interpretation of his children’s
testimony regarding whether they had ever seen or previously identified the murder
weapon. ([24] at 2-4). Petitioner also rebuts the Magistrate Judge’s consideration
of Dr. Smith’s testimony regarding how the victim died, the crediting of Amanda
Pilgrim’s testimony regarding discoloration on Petitioner’s hands, the significance
of finding only Petitioner’s and the victim’s DNA profiles on the murder weapon,
and Petitioner’s statement to Lieutenant Wolfe that the events escalated because
the victim “came at him.” (Id. at 4-10).
When reviewing a challenge to the sufficiency of the evidence, a court must
determine “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319; see also Grimes v.
Taylor, No. 1:15-CV-1757-TWT, 2015 WL 5827610, at *6 (N.D. Ga. Oct. 5,
2015). “When the record reflects facts that support conflicting inferences, there is a
presumption that the jury resolved those conflicts in favor of the prosecution and
against the defendant.” Johnson v. Alabama, 256 F.3d 1156, 1172 (11th Cir.

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2001). “In other words, federal courts must defer to the judgment of the jury in
assigning credibility to the witnesses and in weighing the evidence.” Id.
Here, the evidence shows, among other things, that the victim was strangled
to death—most likely from behind, that Petitioner’s children had likely previously
seen the ribbon used to murder the victim, that Petitioner was with the victim and
present at the victim’s home in very close proximity to the time of the victim’s
death, that Petitioner’s DNA was present on the ends of the ribbon found next to
the victim, and that Petitioner had been violent toward the victim previously. Any
inconsistency in Petitioner’s children’s testimony was ferreted out at trial, and it
was the jury’s responsibility and duty to weigh the children’s credibility and their
testimony regarding the ribbon. In fact, it was the jury’s duty to consider and
weigh the credibility of all of the testimony presented.
Petitioner’s characterization that Dr. Smith testified that the ligature marks
were non-specific to strangulation is a misstatement. Dr. Smith testified that the
intense congestion of blood in the victim’s facial tissue went “a long way” toward
suggesting strangulation, but that congestion, without more, was not specific for
strangulation. ([10.18] at 25). Dr. Smith implied that the facts of this case, in
addition to the congestion in the victim’s face, allowed him to conclusively
determine that the victim died from strangulation. (Id.). Petitioner’s

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misrepresentation does not impact whether or not the evidence was sufficient to
convict him.
Petitioner also fails to show how or why the lack of his DNA in the middle
of the ribbon, the lack of evidence surrounding the ribbon’s origin, or the lack of
evidence establishing his position during the strangulation of the victim, are
matters that render insufficient the evidence against him. The evidence
demonstrated that the ribbon had the victim’s DNA on it and Petitioner’s DNA on
the ends, where it would have been held or tied during strangulation. The jury was
entitled to determine the Petitioner’s credibility and the circumstances surrounding
the victim’s death. It was also within the jury’s province to determine whether to
credit Petitioner’s testimony regarding the timeline of events in the early morning
hours leading up to the victim’s death.
In every trial, parties present evidence tending to prove or disprove the guilt
of the accused. Some evidence is more credible than other evidence, and it is the
jury’s duty to weigh the credibility and make a final determination whether to
credit it. In this case, there was a substantial amount of evidence presented at trial
showing that the Petitioner strangled the victim. Petitioner fails to demonstrate
that the Georgia Supreme Court was unreasonable in finding that the evidence
presented at trial was sufficient to support his conviction. The Court, upon de novo

23

review, thus finds the state courts’ decisions—both on direct and collateral
review—regarding the sufficiency of the evidence in this case warrant deference
pursuant to 28 U.S.C. § 2254(d).
2.

Similar Transaction Evidence

Petitioner next challenges whether the trial court erred in allowing similar
transaction evidence with regard to his conduct toward another woman, Alvinice
Muhammad. ([10.30]). Petitioner’s counsel argued at trial that the prior incident
should have been excluded because it occurred more than ten years prior and was
arson, not murder. (Id.). In considering the issue on appeal, the Georgia Supreme
Court held there was no error. Muhammad, 725 S.E.2d at 305. The court held:
[S]imilar transaction evidence was admitted showing that [Petitioner]
had a prior romantic involvement with Alvinice Muhammad (no
relation). Alvinice purchased a home in Marietta that she shared with
two female housemates. Alvinice allowed Muhammad to stay at that
home for a few weeks. Muhammad began acting violently toward
Alvinice, however, and Alvinice asked Muhammad to move out.
Muhammad refused. Alvinice then decided to obtain a restraining
order against Muhammad. On the morning she planned to do so,
Alvinice woke to find Muhammad straddling her body and choking
her with both hands on her throat. Muhammad released Alvinice only
after one of her roommates ran into the room. Thereafter, Alvinice
obtained the restraining order. In retaliation, Muhammad burned
down Alvinice’s house, telling her: “I told you I could get into the
house anytime I got ready, and if I can't live in the house, nobody can
live in the house.”
....

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[T]he State offered the evidence of the prior arson to show
[Petitioner’s] bent of mind or course of conduct in using escalating
degrees of violence toward women. [Petitioner] pushed and shoved
both Alvinice and Shelia. [Petitioner] choked both Alvinice and
Shelia. With both women, there was the development of a romantic
relationship, a separation, and a resulting escalation of domestic
violence including choking. The similarities are apparent. As such,
the trial court did not err in its determination that [Petitioner’s] crime
against Alvinice was sufficiently similar to the murder of Shelia to
constitute an admissible similar transaction.
Muhammad, 725 S.E.2d at 304-05.
In his state habeas corpus proceedings, Petitioner asserted ineffective
assistance of trial and appellate counsel for failing to consult with him in regard to
the introduction of similar transaction evidence. ([10.4] at 5-6, 12). The state
habeas court found that counsel consulted with Petitioner, that, as a general matter,
counsel would have consulted Petitioner regarding similar transaction evidence as
it was raised on appeal, and that Petitioner had not shown that appellate counsel
was deficient. (Id. at 5, 11). The state habeas court found that Petitioner’s claims
of ineffective assistance of trial counsel failed because he had procedurally
defaulted them and had not overcome his default. (Id. at 14-15).
In his Section 2254 Petition, Petitioner argues that appellate counsel
provided ineffective assistance of counsel by failing to adequately argue the
erroneous admittance of similar transaction evidence on Petitioner’s violence
toward Alvinice, that the trial court erred in allowing such evidence, and that trial
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counsel provided ineffective assistance on the issue. ([1] at 31-34). Petitioner
contends that appellate counsel should have argued that the transactions were
dissimilar because he was not in a romantic relationship with Alvirice at the time
he admittedly set fire to her home—although they had been in one previously. (Id.
at 32). Petitioner further states that there was no evidence to show that he had
assaulted Alvirice. (Id.).
A criminal defendant possesses a Sixth Amendment right to “reasonably
effective” legal assistance. Strickland v. Washington, 466 U.S. 668, 687 (1984).
To show constitutionally ineffective assistance of counsel, a petitioner must
establish that (1) counsel’s representation was deficient and (2) counsel’s deficient
representation prejudiced him. Id. at 690-92. The Court may resolve an
ineffective assistance of counsel claim based on either of these two prongs. Pooler
v. Sec’y, Fla. Dep’t of Corr., 702 F.3d 1252, 1269 (11th Cir. 2012). Claims of
ineffective assistance of appellate counsel are also governed by the Strickland test.
Owen v. Fla. Dep’t of Corr., 686 F.3d 1181, 1202 (11th Cir. 2012). To succeed on
a claim of ineffective assistance of appellate counsel, the movant must demonstrate
deficient performance by counsel and demonstrate that, if counsel had not
performed deficiently, there is a reasonable probability that the appellate outcome

26

would have been favorable to the movant. See Ferrell v. Hall, 640 F.3d 1199,
1236 (11th Cir. 2011).
Petitioner fails to show that his appellate counsel was ineffective in handling
the admission of the similar transaction evidence involving Alvirice. Although
Petitioner apparently was not in a romantic relationship with Alvirice at the time of
the arson, he admitted he was in one with her previously. The facts underlying the
events between Alvirice and Petitioner—including the choking incident and
general violence—were sufficient to show similarity to Petitioner’s behavior
toward the victim here.
Alvirice, moreover, provided the following testimony at Petitioner’s June
13, 2013, state habeas corpus evidentiary hearing:
He began to get violent. He began to shove and push me and just – be
violent. We would have arguments with me telling him, he’s got to
go. He just needs to go. And he said he wasn’t going. He was going
when he got ready to go. So he started getting violent.
([10.18] at 75). As a result, Alvirice decided to obtain a restraining order. The
morning that she and her roommates planned to go to the sherriff’s office together,
she “woke to [Petitioner’s] hands at [her] throat telling [her] to get out and go to
work.” (Id.). Alvirice continued:
He was at my throat like this on me, you know, laying on me. I am in
the bed so he was laying straddled to me. Then when Laverne
actually came to the door because she heard screaming, I began to
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struggle. So she stopped him. The fact that she came in actually
stopped the incident.
(Id. at 76).
First, the Court finds nothing that appellate counsel could have, or should
have, raised on appeal that reasonably would have changed the Georgia Supreme
Court’s decision. The facts underlying the incidents with Alvirice and the victim
were similar, and the Court finds appellate counsel could not have done more to
distinguish them. Second, with respect to whether the trial court should have
admitted the similar transaction evidence in the first instance, the due process
clause, absent the involvement of a specific constitutional right, gives a federal
court limited authority to review a state court’s evidentiary rulings. Hall v.
Wainwright, 733 F.2d 766, 770 (11th Cir. 1984). Absent a violation that rises to
the level of denying “fundamental fairness,” the Court will not review a state
court’s decision to admit evidence. Id. at 770 (quoting Shaw v. Boney, 695 F.2d
528, 530 (11th Cir. 1983)). “To constitute a denial of fundamental unfairness, the
evidence erroneously admitted at trial must be material in the sense of a crucial,
critical, highly significant factor.” Jameson v. Wainwright, 719 F.2d 1125, 1127
(11th Cir. 1983). The Court finds no fundamental unfairness in the state court’s
evidentiary decision. The similar transaction evidence was not critical or crucial to
Petitioner’s case. The evidence against Petitioner, independent of the similar
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transaction evidence, was sufficiently strong and a jury could have convicted on
that basis alone. Upon a de novo review, the Court finds that the state courts’
decisions, on both direct and collateral review, regarding the admittance of similar
transaction evidence warrant deference pursuant to 28 U.S.C. § 2254(d).
3.

Ineffective Assistance of Appellate Counsel

Petitioner argues that appellate counsel was ineffective for failing to raise
ineffective assistance of trial counsel and that the state habeas court’s decision on
the issue was contrary to federal law. ([1] at 34). Petitioner argues that appellate
counsel should have argued that trial counsel was ineffective because he failed to
(1) obtain a photograph of Deputy Huner’s vantage point from the window; (2)
present expert testimony on whether the downstairs window was broken from
inside or outside the residence; (3) discover Alvinice’s conviction for crime of
deceit, thus making the similar transaction evidence inadmissible; (4) present
testimony from his son’s on where the victim stayed before her death; (5)
challenge the indictment; (6) investigate the origin of the fiber found on the victim
and the blood found next to her; (7) present evidence and/or testimony from Valery
Drinkard to show why Petitioner and the victim were separated and that Petitioner
had initiated the separation; and (8) object to the evidence that his son Javonte had
seen the ribbon in a prior home. ([1] at 34-38).

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Strickland requires that Petitioner show that counsel was deficient and that
Petitioner was prejudiced by the deficiency. Strickland, 466 U.S. at 690-92.
Where a petitioner raises an ineffective assistance of counsel claim already decided
by the state court, “the petitioner must do more than satisfy the Strickland
standard; the petitioner must also show that the state court applied Strickland in an
objectively reasonable manner.” Frederick v. Dep’t of Corr., 428 F. App’x 801,
803 (11th Cir. Aug. 17, 2011); see also Knowles v. Mirzayance, 556 U.S. 111, 123
(2009) (finding the standard of review is “doubly deferential” when “a Strickland
claim [is] evaluated under the § 2254(d)(1) standard”)).
Petitioner fails to present evidence or argument demonstrating that the state
habeas court unreasonably applied Strickland. Petitioner also fails to show any
viable claim of ineffective assistance of trial counsel or that he had a reasonable
chance of succeeding on appeal. Petitioner’s claims regarding his counsel’s failure
to introduce certain testimony or evidence are inadequate because there was no
proffer of this evidence or testimony at the outset, and therefore prejudice cannot
be shown. The Eleventh Circuit has held that, absent proffer of evidence, a
petitioner cannot show prejudice based on counsel’s failure to introduce such
evidence. See Hill v. Moore, 175 F.3d 915, 923 (11th Cir. 1999); see also Gilreath
v. Head, 234 F.3d 547, 552 n. 12 (11th Cir. 2000). The following of Petitioner’s

30

claims must be dismissed on this basis alone: (1) Petitioner’s claim that
photographic evidence of Deputy Huner’s view of the stairs would have shown
that Deputy Huner did not in fact see Petitioner descend and then ascend the stairs
in the victim’s home; (2) Petitioner’s claim that expert testimony would have
shown Petitioner did not break the window; (3) Petitioner’s claim that the fiber
found on the victim and the blood on the floor next to her would have uncovered
exculpatory evidence; and (4) Petitioner’s claim that Drinkard would have testified
to Petitioner’s cause for separation.
Petitioner’s claim that Alvinice’s alleged conviction for a crime of deceit
would have precluded the admittance of similar transaction evidence also fails.
There is no evidence in the record, nor could this Court find, evidence confirming
Alvinice’s conviction. ([21] at 43 n.20). Petitioner also presents no argument or
evidence showing that the alleged conviction would have changed the state trial
court’s decision to admit the similar transaction evidence. Instead, evidence was
presented that Petitioner was convicted of arson of Alvinice’s home, which was
perhaps enough for the jury to corroborate her story. Finally, Petitioner’s son
Javonte’s testimony regarding the ribbon was scrutinized at trial, and it was the
jury’s duty to weigh the testimony and evidence before it. There is nothing before
the Court that persuades it that Petitioner’s appellate counsel failed as to Javonte’s

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testimony. The Court, upon de novo review, finds the state habeas court’s decision
regarding Petitioner’s ineffective assistance of appellate counsel claim warrants
deference pursuant to 28 U.S.C. § 2254(d).
D.

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
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
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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.
([21] at 55). 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.
III.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Alan J. Baverman’s

Final Report & Recommendation [21] is ADOPTED.
IT IS FURTHER ORDERED that Petitioner’s Objections to the R&R [24]
are OVERRULRED.
IT IS FURTHER ORDERED that Petitioner’s First Motion to Substitute
Party [28] and Second Motion to Substitute Party [29] are GRANTED. The Clerk
of Court is DIRECTED to substitute Warden Cedric Taylor as Respondent.
IT IS FURTHER ORDERED that Petitioner’s 28 U.S.C. § 2254 Petition
for Writ of Habeas Corpus [1] is DENIED. A COA is DENIED.
33

IT IS FURTHER ORDERED that Petitioner’s Motion to Stay and
Certificate of Appealability [30] and Supplemental Motion to Stay and Expand the
Record and Certificate of Appealability [32] are DENIED.
IT IS FURTHER ORDERED that this action is DISMISSED.

SO ORDERED this 8th day of February, 2018.

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