GORDON v. CALDWELL

Filing 24

OPINION AND ORDER adopting Magistrate Judge J. Clay Fuller's Final Report and Recommendation 17 and overruling Petitioner's Objections to the R&R [21,23]. Petitioner's Motion to Amend Objections 22 is granted. It is further ordered that Petitioners 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus 1 is denied and a COA is denied. Signed by Judge William S. Duffey, Jr on 2/6/18. (ddm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
BERTRAM GORDON,
GDC ID # 1000454983,
Petitioner,
v.

1:17-cv-430-WSD

ANTONIO CALDWELL,
Respondent.

OPINION AND ORDER
This matter is before the Court on Magistrate Judge J. Clay Fuller’s Final
Report and Recommendation (“R&R”) [17]. The R&R recommends the Court
deny Petitioner Bertram Gordon’s (“Petitioner”) 28 U.S.C. § 2254 habeas corpus
petition [1] (“Section 2254 Petition”) challenging his December 2010 DeKalb
County convictions for aggravated battery and possession of a firearm during the
commission of a felony. Also before the Court are Petitioner’s Objections to the
R&R [21]; Motion to Amend Objections [22], and Amended Objections to the
R&R [23] (“Amended Objections”).
I.

BACKGROUND
Petitioner was indicted by the DeKalb County Grand Jury on

August 10, 2009, for aggravated assault, possession of a firearm during the

commission of a felony, and two counts of aggravated battery. Following a jury
trial on December 17, 2010, Petitioner was found guilty of aggravated assault,
possession of a firearm during the commission of a felony, and two counts of
aggravated battery. Petitioner was sentenced to twenty five years in prison.
The Court of Appeals of Georgia found the following evidence, viewed in
the light most favorable to the guilty verdicts, sufficient to sustain them:
[T]he record shows that in early 2007, the victim, a cabdriver,
frequently drove [Petitioner’s] girlfriend to and from her workplace
and her children’s daycare center, and did so at times without pay.
Although [Petitioner] and the victim were acquainted, [Petitioner] did
not approve of the friendship between the victim and the girlfriend.
On April 16, 2007, [he] called the victim and asked him where he
was. The victim told [him] that he was at a Piccadilly restaurant.
[Petitioner] borrowed his girlfriend’s new Chevrolet, drove up to the
victim’s cab, where he was sitting with the door open, and fired at him
three times, hitting him once in the left leg and once in the abdomen.
Three spent rounds were found on the ground near the victim’s cab.
An eyewitness saw the shooting, followed the Chevrolet, and called
911. While the eyewitness remained on the line with the 911
operator, police relayed the eyewitness’s description of the car [that
Petitioner] was driving to officers in the field. After a high-speed car
chase ending in a crash at an apartment complex, [Petitioner] fled on
foot and was apprehended by police. The victim recognized
[Petitioner] at the scene and identified him from a photographic lineup
and at trial.
Gordon v. State, 734 S.E.2d 777, 779 (Ga. Ct. App. 2012).
On May 9, 2017, the Magistrate Judge issued the R&R recommending that
the Petition be denied. ([17]). The Magistrate Judge considered Petitioner’s
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claims regarding two grounds of ineffective assistance of appellate counsel and
two grounds of ineffective assistance of trial counsel. Petitioner asserts that his
appellate counsel failed to “prepare and perfect” the appeal regarding the
inadequacy of trial counsel’s preparation and pretrial investigation, and that his
appellate counsel “allowed a tainted trial to proceed into petitioner’s appeal” by
failing to raise the issue of certain allegedly exculpatory phone records. The
Magistrate Judge found no error in the state habeas court’s conclusion that there
was no reasonable probability that, absent the alleged failures of appellate counsel
set forth in federal habeas grounds, the outcome of Petitioner’s appeal would have
been different.
Regarding his ineffective assistance of trial counsel claims, Petitioner asserts
that trial counsel failed to properly investigate his case and “failed to adversely
contend [his] case.” The Magistrate held that “[b]ecause Petitioner had new
counsel for his motion for new trial and on direct appeal, he was obligated to raise
his claims of ineffective assistance of trial counsel in his motion for new trial to
avoid the procedural default of these claims.” (R&R at 19). The Magistrate found
that Petitioner failed to raise any basis to excuse the procedural default of his
claims for ineffective assistance of trial counsel. (R&R at 19-20).

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On June 2, 2017, Petitioner filed his Objections to the Magistrate’s
R&R. ([21]). On June 5, 2017, Petitioner filed his Motion to Amend Objections.
([22]). On June 26, 2017, Petitioner filed his Amended Objections to the R&R.
([23]).
In the Amended Objections, Petitioner repeats his four grounds of
ineffective assistance of counsel with little reference to the R&R. Petitioner first
objects that his appellate counsel “failed to perfect [his] appeal” by allegedly
failing to raise on appeal trial counsel’s allegedly deficient pre-trial investigation.
Petitioner again asserts that his appellate counsel was ineffective for failing to raise
the issue of phone records which Petitioner asserts disprove the victim’s testimony
that Petitioner had left threatening messages on the victim’s phone. Petitioner
repeats his third and fourth grounds regarding ineffective assistance of trial
counsel, asserting that he “he has shown established cause for this procedural
default in showing that his trial and appellate counsel was so inadequate that it
violated his Sixth Amendment right to effective assistance of counsel.”
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

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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 generally
objects to the Magistrate Judge’s rejection of his ineffective assistance of appellate
counsel claims and its finding that Petitioner failed to show cause excusing the
procedural default of his ineffective assistance of trial counsel claims, the Court
conducts its review of those findings and recommendations de novo. For those
portions of the R&R to which an objection was not made, the Court reviews them
for plain error. United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983)
B.

Grounds Adjudicated on the Merits by the State Habeas Court
1.

Review Process

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

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unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d). “[A]n unreasonable application of
federal law is different from an incorrect application of federal law.”
Harrington v. Richter, 562 U.S. 86, 101 (2011) (internal quotation marks omitted)
(quoting Williams v. Taylor, 529 U.S. 362, 410 (2000)). “[A] state prisoner must
show that the state court’s ruling on the claim being presented in federal court was
so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded
disagreement.” Id. at 103. The state court’s determinations of factual issues are
presumed correct, absent “clear and convincing evidence” to the contrary.
28 U.S.C. § 2254(e)(1).
2.

Merits Review of Ineffective Assistance of Counsel Claims

To prevail on an ineffective assistance of counsel claim, a petitioner must
show that counsel’s conduct was “outside the wide range of professionally
competent assistance” and that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland v. Washington, 466 U.S. 668, 690 (1984). Courts must
“indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Id. at 689. Even if a reviewing court

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determines that “many reasonable lawyers would not have done as defense counsel
did at trial, no relief can be granted on ineffectiveness grounds unless it is shown
that no reasonable lawyer, in the circumstances, would have done so.” Rogers v.
Zant, 13 F.3d 384, 386 (11th Cir. 1994); see also White v. Singletary, 972 F.2d
1218, 1221 (11th Cir. 1992) (“We are not interested in grading lawyers’
performances; we are interested in whether the adversarial process at trial, in fact,
worked adequately.”).
When this deferential Strickland standard is “combined with the extra layer
of deference that § 2254 provides [in federal habeas cases], the result is double
deference and the question becomes whether ‘there is any reasonable argument that
counsel satisfied Strickland’s deferential standard.’” Johnson v. Sec’y, DOC, 643
F.3d 907, 910-11 (11th Cir. 2011) (quoting Harrington, 562 U.S. at 105). “Double
deference is doubly difficult for a petitioner to overcome, and it will be a rare case
in which an ineffective assistance of counsel claim that was denied on the merits in
state court is found to merit relief in a federal habeas proceeding.” Id. at 911.
This analysis also applies to claims of ineffective assistance of appellate
counsel. “A first appeal as of right . . . is not adjudicated in accord with due
process of law if the appellant does not have the effective assistance of an
attorney.” Evitts v. Lucey, 469 U.S. 387, 396 (1985). “A defendant can establish

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ineffective assistance of appellate counsel by showing: (1) appellate counsel’s
performance was deficient, and (2) but for counsel’s deficient performance he
would have prevailed on appeal.” Shere v. Sec’y, Fla. Dep’t of Corr., 537 F.3d
1304, 1310 (11th Cir. 2008) (citing Smith v. Robbins, 528 U.S. 259, 285-86
(2000)). But appellate counsel “need not advance every argument, regardless of
merit, urged by the appellant.” Lucey, 469 U.S. at 394; see Robbins, 528 U.S. at
288 (noting that “it is difficult to demonstrate that [appellate] counsel was
incompetent” for failing “to raise a particular claim,” and “[g]enerally, only when
ignored issues are clearly stronger than those presented, will the presumption of
effective assistance of counsel be overcome” (internal quotations omitted)). The
Richter test set forth above, which applies when a state court has adjudicated a
claim on the merits, also applies to claims of ineffective assistance of appellate
counsel. See Bourne v. Curtin, 666 F.3d 411, 414 (6th Cir. 2012) (citing Richter,
562 U.S. at 105).
Petitioner here objects to the Magistrate Judge’s denial of the following
claims related to the ineffective assistance of appellate counsel that were
adjudicated on the merits by the state habeas court: (1) that that appellate counsel
failed to “prepare and perfect” the appeal regarding the inadequacy of trial
counsel’s preparation and pretrial investigation, including his failure to conduct an

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in-depth interview of any witness or to present any evidence in Petitioner’s
defense, (Amended Objections at 2-4), and (2) Petitioner’s assertion that appellate
counsel “allowed a tainted trial to proceed into petitioner’s appeal” by failing to
raise the issue of the phone records that Petitioner had “requested from trial
counsel,” which showed that the state’s star witness gave “totally fabricated”
testimony, (Amended Objections at 4-5).
a.

Ground 1: Appellate Counsel Failed To Perfect the
Appeal

The Magistrate Judge found that Petitioner failed to identify, in the
state habeas court’s order rejecting his federal habeas ground one claim, an
error that is “well understood and comprehended in existing law beyond any
possibility for fairminded disagreement,” especially in light of the Supreme
Court’s admonition that a claim of ineffective assistance of counsel must fail
there “any reasonable argument that counsel satisfied Strickland’s
deferential standard.” (R&R [17] at 11 (internal citations omitted)). The
Court agrees. According to the Court of Appeals of Georgia, the jury was
entitled to find from the evidence presented at Petitioner’s trial that he was
the driver of the vehicle used in the shooting, as identified by a 911 caller
who witnessed the shooting and followed the vehicle until a police officer
picked up the chase. See Gordon, 734 S.E.2d at 779. On de novo review,
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the Court finds no error in the state habeas court’s conclusion that there was
no reasonable probability that, absent the alleged failures of appellate
counsel set forth in federal habeas ground one, the outcome of Petitioner’s
appeal would have been different.
b.

Ground 2: Appellate Counsel Allowed a Tainted Trial to
Proceed into the Appeal

Petitioner objects to the Magistrate Judge’s findings regarding his second
stated ground of ineffective assistance of appellate counsel, in which Petitioner
asserts that appellate counsel “allowed a tainted trial to proceed into petitioner’s
appeal” by failing to raise the issue of the phone records that Petitioner had
“requested from trial counsel,” which showed that the state’s star witness gave
“totally fabricated” testimony. ([1] at 6). In his Amended Objections, Petitioner
repeats his argument that appellate counsel was effective for failing to properly
pursue evidence that Petitioner had left threatening messages on the victim’s phone
when in fact the evidence showed that the victim did not have a message service of
his phone.
The state habeas court rejected this claim as follows:
Appellate counsel requested phone records as part of her investigation
into Petitioner’s ineffective assistance of trial counsel claims to
establish whether or not it was an error for trial counsel not to utilize
the phone records. Petitioner had expressed interest in these records
because of phone calls of a harassing nature between himself and the
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victim. The record shows that trial counsel told appellate counsel he
did not pursue the phone records because he didn’t think they would
be helpful and felt they would help establish motive for the State.
Ultimately appellate counsel did not raise an ineffectiveness claim
based on trial counsel’s failure to introduce phone records because
they would have not been helpful to Petitioner’s case at trial and
would have bolstered the State’s case for motive.
....
Petitioner has failed to show that his appellate counsel’s performance
was deficient or that he was prejudiced by it. Appellate counsel stated
that she did not raise trial counsel’s failure to introduce telephone
records at the motion for new trial because she did not believe that it
was a viable issue and that it was within the trial strategy of trial
counsel.
([10.4] at 7-8).
The Magistrate Judge found that Petitioner failed to identify an error that is
“well understood and comprehended in existing law beyond any possibility for
fairminded disagreement . . . especially in light of the Supreme Court’s admonition
that a claim of ineffective assistance of counsel must fail if there is ‘any reasonable
argument that counsel satisfied Strickland’s deferential standard,’” (R&R at 13
(quoting Richter, 562 U.S. at 103-105)). Upon de novo review, the Court finds that
Petitioner has failed to demonstrate that he was prejudiced by the failure of
appellate counsel to claim on appeal that trial counsel had provided ineffective
assistance of counsel by not introducing the allegedly exculpatory phone records at
trial. Petitioner has also failed to show that the phone records are exculpatory.

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C.

Procedural Default

Petitioner objects to the Magistrate Judge’s rejection of Petitioner’s final two
grounds for relief in his Petition. First, Petitioner argues that trial counsel failed to
investigate his case, interview any of his requested witnesses or do an in-depth
interview of any witness, and “was unaware of the circumstances of [his] trial.”
(Petition at 8). In support, Petitioner asserts:
Trial counsel rendered ineffective assistance when there was no pretrial investigation into the preferred defense of “Mistaken Identity.”
Counsel put forth no evidence or called any witness to this failed
strategy. And the only interview done on behalf of trial counsel Mr.
Meck[’s] office was of a witness (Maddox) who wasn’t called and
gave a complete[ly] different description of the events [] of April 16,
2007.
([16] at 9). Petitioner notes that trial counsel failed “to acquire material evidence
of phone records” and failed to interview critical witnesses, including Petitioner’s
girlfriend, prior to trial. (Id. at 10).
Second, Petitioner argues that trial counsel “failed to adversely contend [his]
case,” was “totally unprepared to address any issue at [his] trial” and refused “to
address the perjured testimony of the state witness.” (Petition at 10). In support,
Petitioner asserts that “[t]rial counsel’s inadequate investigation was also present in
his failure to adversely contend [the] prosecutor[’]s case with impeachable facts”
regarding the termination from police employment of the state’s witness, Officer

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Shannon Bradley, who chased Petitioner into the woods. (See [12.1] at 290-91).
Petitioner argues that trial counsel’s lack of preparation reveals the complete lack
of a defense strategy, which “shows that counsel’s actions actually resulted from
inattention or neglect, rather than reasoned judgment.” ([16] at 10-11).
The Magistrate Judge found that “[b]ecause Petitioner had new counsel for
his motion for new trial and on direct appeal, he was obligated to raise his claims
of ineffective assistance of trial counsel in his motion for new trial to avoid the
procedural default of these claims.” (R&R at 19). The Magistrate Judge found
further that “Petitioner has not demonstrated, or even alleged, ineffective
assistance of appellate counsel, or any other cause, to excuse the procedural default
of his federal habeas ground three and four claims, which are therefore barred from
merits review in this Court.” (Id. at 20). Petitioner objects to the Magistrate
Judge’s ruling on the grounds that he “has shown established cause for this
procedural default in showing that his trial and appellate counsel was so inadequate
that it violated his Sixth Amendment right to effective assistance of counsel.”
(Amended Objections at 6).
Federal habeas review is generally barred for a claim that was procedurally
defaulted in state court, i.e., a claim “not resolved on the merits in the state
proceeding” based on “an independent and adequate state procedural ground.”

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Wainwright v. Sykes, 433 U.S. 72, 86-87 (1977). “[W]here the state court
correctly applies a procedural default principle of state law to arrive at the
conclusion that the Petitioner’s federal claims are barred, Sykes requires the
federal court to respect the state court’s decision.” Bailey v. Nagle, 172 F.3d 1299,
1302 (11th Cir. 1999); see also Bucklon v. Sec’y, Fla. Dep’t of Corr., 606 Fed.
Appx. 490, 492 n.2 (11th Cir. 2015).
A petitioner may obtain federal habeas review of procedurally defaulted
claims by (1) showing cause and actual prejudice, or (2) presenting “proof of
actual innocence, not just legal innocence.” Ward v. Hall, 592 F.3d 1144, 1157
(11th Cir. 2010). To demonstrate actual innocence, a petitioner must “support his
allegations of constitutional error with new reliable evidence—whether it be
exculpatory scientific evidence, trustworthy eyewitness accounts, or critical
physical evidence—that was not presented at trial.” Schlup v. Delo, 513 U.S. 298,
324 (1995). “[T]he petitioner must show that it is more likely than not that no
reasonable juror would have convicted him in the light of the new evidence.” Id. at
327.
Here, Petitioner does not argue that the Magistrate Judge improperly found
that Petitioner failed to raise his claims of ineffective assistance of trial counsel in
his motion for new trial, and the Court finds no plain error in this finding.

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Petitioner instead objects that he has stated proper cause to excuse his procedural
default. Upon de novo review, this Court finds that Petitioner has failed to show
that his counsel’s assistance was so ineffective that it violated his Sixth
Amendment right to counsel or “that some objective factor external to the defense
impeded counsel’s efforts to comply with the State’s procedural rule.” Murray v.
Carrier, 477 U.S. 478, 488 (1986).
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

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further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting
Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).
When the district court denies a habeas petition on procedural
grounds . . ., a COA should issue when the prisoner shows, at least,
that jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and that
jurists of reason would find it debatable whether the district court was
correct in its procedural ruling.
Slack, 529 U.S. at 484.
The Magistrate Judge found that a COA should be denied because
there is no reasonable argument to support a finding that Petitioner has
presented a non-defaulted ground of sufficient merit to warrant federal
habeas relief, a certificate of appealability should not issue in this case. 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 J. Clay Fuller’s Final

Report and Recommendation [17] is ADOPTED.
IT IS FURTHER ORDERED that Petitioner’s Objections to the R&R [21]
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are OVERRULED.
IT IS FURTHER ORDERED that Petitioner’s Motion to Amend
Objections [22] is GRANTED.
IT IS FURTHER ORDERED that Petitioner’s Amended Objections to the
R&R [23] are OVERRULED
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.
SO ORDERED this 6th day of February, 2018.

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