Turner v. Philbin

Filing 16

OPINION AND ORDER adopting Magistrate Judge Justin S. Anand's Final Report and Recommendation 14 , denying Petitioner's Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 1 , dismissing this action and denying a certificate of appealability. Signed by Judge William S. Duffey, Jr on 10/3/17. (ddm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
DENORRIS TURNER,
GDC ID # 787962, Case # 785285,
Petitioner,
v.

1:16-cv-4266-WSD

EDWARD PHILBIN, Warden
Respondent.

OPINION AND ORDER
This matter is before the Court on Magistrate Judge Justin S. Anand’s Final
Report and Recommendation [14] (“Final R&R”), recommending that Petitioner
DeNorris Turner’s (“Petitioner”) Petition for Writ of Habeas Corpus Pursuant to
28 U.S.C. § 2254 [1] (“Section 2254 Petition”) be denied, that this action be
dismissed, and that a certificate of appealability be denied.
I.

BACKGROUND
On August 22, 2017, Petitioner filed his Section 2254 Petition, challenging

his 2014 aggravated assault conviction after entering his guilty plea to the charge
in DeKalb County state court. Petitioner raises one ground for relief in his federal
habeas petition. He claims guilty plea was unlawfully induced and involuntary
because of the ineffective assistance of his counsel resulting in Petitioner not

understanding the charges against him or the penalties that could result from his
plea. ([1] at 5-6). On March 10, 2017, the Magistrate Judge issued his Final R&R
recommending that Petitioner’s federal habeas petition be denied because
Plaintiff’s state court habeas petition was decided on the merits and (1) there is no
basis to show the decision was contrary to, or involved an unreasonable application
of, clearly established Federal law or (2) the habeas court’s decision was based on
an unreasonable determination of the facts. Plaintiff did not file objections to the
Final R&R.
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. 28 U.S.C. § 636(b)(1);
Williams v. Wainwright, 681 F.2d 732 (11th Cir. 1982), cert. denied, 459 U.S.
1112 (1983). 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). With respect to those findings and
recommendations to which objections have not been asserted, the Court must
conduct a plain error review of the record. United States v. Slay, 714 F.2d 1093,
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1095 (11th Cir. 1983), cert. denied, 464 U.S. 1050 (1984).
B.

Analysis
1.

Petitioner’s Section 2254 Petition

On January 5, 2017, Petitioner’s state habeas petition was denied on the
merits by the Superior Court of DeKalb County. ([13.2] at 2-3, 6-7, 9). Petitioner
now moves in his Section 2254 Petition in this Court to vacate his conviction based
on the grounds that his conviction was unlawfully induced and involuntary,
because of the ineffective assistance of his counsel. ([1] at 5-6). A federal court
may not grant habeas corpus relief for claims previously decided on the merits by a
state court unless the 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 state court’s determination of a factual issue is presumed
correct unless the petitioner rebuts the presumption “by clear and convincing
evidence.” 28 U.S.C. § 2254(e)(1).
The Magistrate Judge found that it could “discern[] no basis to find that the
state habeas court’s conclusion that Petitioner’s plea was knowing and voluntary,
as summarily affirmed by the Supreme Court of Georgia, was ‘so lacking in
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justification that there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.” ([14] at 6-7; quoting
Harrington v. Richter, 562 U.S. 86, 103 (2011)). The Magistrate Judge further
concluded that the state habeas court’s order and the transcript of Petitioner’s plea
hearing “clearly show that Petitioner understood the charges against him and the
consequences of his guilty plea, and that after consultation with his attorney,
without coercion or duress, he chose voluntarily to plead guilty.” ([14] at 7-8).
The Court finds no plain error in this finding.
2.

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 “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
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that the issues presented were adequate to deserve encouragement to proceed
further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
When the district court denies a habeas petition on procedural
grounds . . . , a [certificate of appealability] should issue when the
prisoner shows, at least, that jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.
Id.
The Magistrate Judge found, and the Court agrees, that a certificate of
appealability should be denied because it is clear that Petitioner’s sole claim is
without merit.
III.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Justin S. Anand’s Final

Report and Recommendation [14] is ADOPTED.
IT IS FURTHER ORDERED that Petitioner’s Petition for Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2254 [1] is DENIED.
IT IS FURTHER ORDERED that this action is DISMISSED.
IT IS FURTHER ORDERED that a certificate of appealability is
DENIED.

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SO ORDERED this 3rd day of October, 2017.

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