Rivera v. Humphrey
Filing
133
ORDER denying 108 Motion to Amend/Correct; denying as moot 115 Motion to Stay. Signed by Chief Judge J. Randal Hall on 06/21/2019. (maa)
FILEH
U.S. DISTRICT COURT
AUGUSIA DiV.
IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF GEORGIA
20I9JUH2I PM
AUGUSTA DIVISION
REINALDO JAVIER RIVERA,
*
'
13
. . H l/o/
CLERK^liipO.
w U. ^ k x. I • VM
U M.
5
Petitioner,
*
*
V.
*
CV 113-161
*
ERIC SELLERS, Warden of the
*
Georgia Diagnostic and
*
Classification State Prison,
*
*
Respondent.
*
ORDER
Before
the
Court
is
Petitioner
Reinaldo
Javier
Rivera's
motion to amend the Court's December 5, 2017 Order ("December 6th
Order") to add a certificate permitting immediate appealability
(Doc. 108) and motion to stay briefing schedule pending resolution
of his motion to amend (Doc. 115).
For the reasons set forth
below, Petitioner's motion to amend is DENIED and his motion to
stay briefing schedule is DENIED AS MOOT.
The Court has detailed the factual and procedural background
of this case in prior Orders.
(See Dec. 6th Order, Doc. 96, at 1-
3; Order Denying Recons., Doc. 107, at 2-4.)
In this Order, the
Court only notes background details directly relevant.
I.
LEGAL STANDARDS
As an initial matter, the Court agrees with Petitioner that
in
the
Court's
reconsideration
of
its
December
6th
Order,
it
incorrectly construed the reconsideration request as under Rule
60(b) rather than Rule 54(b).
Rule 60(b) applies to final orders
only, and the December 6th Order was a non-final, interlocutory
order.^
This does not affect the validity of the reconsideration.
See Charriez v. Sec'y, Fla. Dep't of Corr., 596 F. App'x 890, 896
n.6 (11th Cir. 2015) (per curiam) (stating district court did not
err in denying motion for reconsideration even though analyzed
under Rule 60(b) rather than Rule 54(b)); Kolawole, 863 F.3d at
1368-69,
1373-74
reconsideration
(affirming
under
Rule
district
60(b)
even
court's
though
reconsideration was not of a final order).
denial
already
of
decided
The Court's logic in
denying Petitioner's motion for reconsideration under Rule 60(b)
applies equally to Rule 54(b)
QBE Ins. Corp. v. Whispering Pines
^ A final order is "one which ends the litigation on the merits and leaves
nothing for the court to do but execute the judgment." Pitney Bowes, Inc. v.
Mestre, 701 F.2d 1365, 1368 (11th Cir. 1983) (quoting Catlin v. United States,
324 U.S. 229, 233 (1945)). The Court's decision to apply Rule 60(b) does not
convert the December 6th Order into a final judgment triggering an appeal
timeline.
Kolawole v. Sellers, 863 F.3d 1361, 1369, 1373 (11th Cir. 2017)
(although court reconsidered under Rule 60(b), order reconsidered was not a
final order; thus, appeal timeline did not begin until court entered a
certification allowing appeal).
2 Rule 54(b) does not provide specific grounds for reconsideration but recalls
the Court's inherent power to revise its orders in the interest of justice.
See Fed. R. Civ. P. 54(b); CSX Transp., Inc. v. City of Pensacola, 936 F. Supp.
885, 890 (N.D. Fla. 1995) (denying motion for Rule 54(b) reconsideration when
party "merely expanded those allegations contained in the dismissed claims").
"[T]he
Eleventh
Circuit
advises 'district
courts
discretion afforded by Rule 54(b) conservatively.'"
to
exercise
the
limited
Neibert v. Comput. Scis.
Corp., No. l:12-cv-02277-SCJ, 2014 WL 11460478, at *5 (N.D. Ga. May 16, 2014)
Cemetery, LLC; No. 12-0054-KD-C, 2014 WL 2921908, at *4 (S.D. Ala.
June 27, 2014) (''Eleventh Circuit precedence indicates that the
Court may follow the Rule 60(b) analysis when addressing a motion
for relief from a non-final order."); see also Herman v. Hartford
Life & Accident Ins. Co., 508 F. App'x 923 (Table), 927 n.l (11th
Cir. 2013) (per curiam) (citing Fernandez v. Bankers Nat'l Life
Ins. Co., 906 F.2d 559, 569 (11th Cir. 1990) ("Although Rule 54(b)
does not delineate the parameters of a district court's discretion
to reconsider interlocutory orders, we have at least indicated
that Rule 54(b) takes after Rule 60(b).").
Because
the
December
6th
Order
was
a
non-final
order.
Petitioner may only appeal it with the Court's permission under
Rule 54(b) or 28 U.S.C. § 1292(b).
For the following reasons, the
Court finds this motion properly analyzed under section 1292(b),
rather than Rule 54(b).
A. Rule 54(b)
Rule 54(b) allows a court to "direct entry of a final judgment
as
to
one
or
more,
but
fewer
than
all,
claims . . . only
if . . . there is no just reason for delay." Fed. R. Civ. P. 54(b).
District courts must follow a two-step analysis to determine
whether Rule 54(b) certification is proper.
Lloyd Noland Found.,
Inc. V. Tenet Health Care Corp., 483 F.3d 773, 777 (11th Cir.
(quoting Ebrahimi v. City of Huntsville Bd. of Educ., 114 F.3d 162, 166 (llth
cir. 1997)).
2007).
"First, the court must determine that its final judgement
is, in fact, both 'final' and a 'judgment.'"
Id. (citing Curtiss-
Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 7 (1980)).
A court's decision is considered "final" only if that decision
"disposes entirely of a separable claim."
Id. at 779 (quoting In
re Se. Banking Corp., 69 F.3d 1539, 1547 (11th Cir. 1995).
Courts
have often stated, "[T]he line between deciding one of several
claims and deciding only part of a single claim is very obscure."
In re Se. Banking Corp., 69 F.3d at 1547 (citing 10 Charles Alan
Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure
§ 2657, at 67 (2d ed. 1983)). In determining whether a claim is
separable, the Eleventh Circuit focuses on the relief requested,
stating, "Claims are separable when there is more than one possible
recovery . . . or if different sorts of relief are sought.
(internal citations and quotation marks omitted).
Id.
Therefore,
"even if a district court has adjudicated one count of a complaint,
but
another
count
seeks
substantially
similar
relief,
the
adjudication of the first count does not represent a 'final
judgment' because both counts are functionally part of the same
claim under Rule 54(b)."
Barnett v. MacArthur, 715 F. App'x 894,
900 (11th Cir. 2017) (per curiam) (quoting Lloyd Noland Found.,
Inc., 483 F.3d at 780). A judgment is "a decision upon a cognizable
^ For purposes of this Order, the Court refers to this as the "SeparateRecoveries Test."
claim for relief."
Lloyd Noland Found. / Inc. / 483 F.3d at 777
(quoting Curtiss-Wright Corp., 446 U.S. at 7).
Second, if found to be a final judgment, "the district court
must then deteinnine that there is no 'just reason for delay' in
certifying it as final and immediately appealable."^
Id. (citing
Curtiss-Wright Corp., 446 U.S. at 8).
Rule 54(b) is inapplicable here because the December 6th Order
did not include a final judgment as to any claim.
The Court
focuses on the decisions in the December 6th Order Petitioner now
challenges.
The Court's decisions denying the addition of facts
in support of Petitioner's Ineffective Assistance of Trial Counsel
("lATC") claim and denying the use of an exception to excuse
procedural default were clearly not final judgments because they
disposed of facts in support of a claim and a theory of excuse,
not a claim itself.
The only arguable final judgement as to a
claim in the December 6th Order is the denial of Petitioner's
freestanding actual innocence claim.
First, denying addition of Petitioner's actual innocence
claim is not final.
Although Petitioner presents many theories,
his requested relief is the same under all: relief from his
* Only after the district court finds the decision is a final judgment must the
court determine whether there is no just reason for delay.
See Barnett, 715 F.
App'x at 900 ("[W]e reach this inquiry only if we first determine that the order
was a final judgment.").
conviction and sentence.^
(Pet. for Writ of Habeas Corpus, at 39;
Am. Pet. for Writ of Habeas Corpus, at 55.)
claim
of
actual
innocence
Because Petitioner's
"'substantially
overlap[s]
'
with
remedies being sought by the remaining claims pending in [this
Court]," the Court's denial of Petitioner's request to add an
actual innocence claim is not a final adjudication of a claim for
purposes of Rule 54(b)
Lloyd Noland Found., Inc., 483 F.3d at
780 (quoting In re Se. Banking Corp., 69 F.3d at 1547).
Second, the decision to deny Petitioner's actual innocence
claim is not a judgment.
Having denied the actual innocence claim
as not cognizable (see Dec. 6th Order, at 4), this Court's decision
was not a decision upon a cognizable claim for relief.
The Court recognizes that use of the Separate-Recoveries Test
may prove problematic in a habeas corpus petition because success
on any theory results in the same relief.
Andrew S. Pollis, Civil
Rule 54(h): Seventy-Five and Ready for Retirement, 65 Fla. L. Rev.
711, 743 (2013).
Recoveries
Test,
Because the Eleventh Circuit uses the Separate-
however,
the
Court
must
apply
it
here.
Furthermore, in conjunction with the Separate-Recoveries Test, the
Court finds persuasive the substantial overlap between the actual
5 Specifically, Petitioner "prays that this Court: . . . Issue a Writ of Habeas
Corpus to have Petitioner brought before it to the end that he may be discharged
from his unconstitutional confinement and restraint, and/or be relieved from
his unconstitutional sentence of death." (Pet. for Writ of Habeas Corpus, Doc.
1, at 39; Am. Pet. for Writ of Habeas Corpus, Doc. 71-1, at 55.)
® The Court's reasoning that denial of the actual innocence claim is not final
applies equally to the Court's denial of the other theories of relief in its
December 6th Order.
innocence claim and pending claims, factually and in relief sought,
and that this Court's decision was denying the addition of a non-
cognizable claim.
Thus, the Court's decision to deny addition of
Petitioner's actual innocence claim was not a final judgment under
Rule 54(b)
B. Section 1292(b)
Having found Rule 54(b) inapplicable, the Court may only grant
Petitioner permission for an interlocutory appeal of the December
6th Order under 28 U.S.C. § 1292(b).
For the Court to authorize
certification under section 1292(b), Petitioner has the burden to
show the Court that the relevant order "involves [1] a controlling
question of law[,] [2] as to which there is substantial ground for
difference
of
opinion[,]
and
[3]
that
an
immediate
appeal . . . may materially advance the ultimate termination of
the litigation."
28 U.S.C. § 1292(b).
First, a controlling question of law is one that is both
controlling and purely legal.
is "outcome determinative."
A question is controlling when it
E.A. Renfroe & Co. v. Rigsby, No. 06-
AR-1752-S, 2008 WL 11375424, at *2 (N.D. Ala. Jan. 17, 2008).
Compare Scoggins v. Floyd Healthcare Mgmt., No. 4:14-cy-0274-HLM-
WEJ, 2016 WL 11544903, at *3 (N.D. Ga. Apr. 4, 2016) (discoveryrelated
issue
not
controlling
because
"certainly
not
Because the decision was not a final judgment, the Court need not decide
whether there is no just reason for delay.
dispositive") / with S.R. v. United States, 555 F. Supp. 2d 1350,
1360 (S.D. Fla. 2008) (controlling because the availability of
equitable tolling "is wholly dispositive as to the viability of
[plaintiff's] claims").
Distinct from "a question of fact or
matter for the discretion of the trial court," a purely legal
question is "more of an abstract legal issue" that "can [be]
decide[d] quickly and cleanly without having to study the record";
it does not require the "application of settled law to fact."
McFarlin v. Conseco Servs., LLC, 381 F.3d 1251, 1258 (11th Cir.
2004) (citations omitted).
Second, a difference of opinion is sufficient when "there is
substantial dispute about the correctness of any of the pure law
premises the district court actually applied in its reasoning
leading to the order sought to be appealed."
Id. at 1259.
For
example, there is substantial dispute when there is a circuit split
over a question of law that the Eleventh Circuit has not addressed.
Abner v. U.S. Pipe & Foundry, Co., No. 2:15-CV-02040-KOB, 2018 WL
3804188, at *2 (N.D. Ala. Feb. 21, 2018).
However, "[n]either the
mere lack of authority on the issue nor the claim that the district
court's ruling is incorrect constitutes a substantial ground for
difference of opinion." Flint Riverkeeper, Inc. v. S. Mills, Inc.,
261 F. Supp. 3d 1345, 1347 (M.D. Ga. 2017) (citation omitted).
Third, an immediate appeal materially advances the ultimate
termination of the litigation when the court of appeals' decision
"would serve to avoid a trial or otherwise substantially shorten
the litigation."
McFarlin, 381 F.3d at 1259 (citations omitted)
(finding appeal immaterial because it would only resolve one of
seven
issues
appropriate
leaving
in
future
open
cases
possibility
where
not
that
all
review
claims
may
be
would
be
resolved); accord Cline v. Advanced Neuromodulation Sys.; Inc.,
No. 1:11-CV-4064-AT, 2014 WL 11517833, at *2 (N.D. Ga. Apr. 15,
2014) ("[T]he resolution of these issues would not serve to avoid
trial or otherwise substantially shorten the litigation because
[p]laintiff's parallel negligent manufacturing claim is still
viable . . . ."). Where the appeal would not dispose of the entire
case, courts "weigh the disruptive effect of an immediate appeal
on the . . . proceedings against the probability that resources
will be wasted in allowing those proceedings to go forward."
In
re Pac. Forest Prods. Corp. v. Freeman, 335 B.R. 910, 924 (S.D.
Fla. 2005) (Although "numerous other issues remain to be tried,"
an "immediate appeal would hasten the ultimate disposition of this
case.
The discovery period . . . is still open[] and trial is
scheduled [to occur in six months].") (emphasis in original).
The Court also notes that section 1292(b) certification is
"an extraordinary measure, which is permitted only in exceptional
circumstances."
Cline, 2014 WL 11517833, at *1 (citing McFarlin,
381 F.3d at 1256).
"Because permitting piecemeal appeals is bad
policy, permitting liberal use of [section] 1292(b) interlocutory
appeals is bad policy."
McFarlin, 381 F.3d at 1259.
II.
In
its
December
Petitioner's
(1)
6th
motion
DISCUSSION
Order,
to
this
amend
Court,
his
in
part,
complaint
denied
adding
a
freestanding actual innocence claim and (2) motion for appointment
of supplemental counsel to litigate whether undersigned counsel
provided ineffective representation.
{Dec. 6th Order, at 4.)
Regarding his lATC claim. Petitioner recognized it was untimely
under
the
("AEDPA").
Anti-Terrorism
and
Effective
Death
Penalty
(Mot. for Suppl. Counsel, Doc. 78, at 54.)
Act
Petitioner
argued this Court should excuse his procedural default using the
actual innocence exceptions.®
(Id. at 54-58.)
In its December
6th Order, the Court denied addition of the actual innocence claim
because
neither
the
Supreme
Court
nor
Eleventh
Circuit
had
recognized such a claim in habeas corpus proceedings and denied
addition of the lATC claim because no exception was met.
(Dec.
6th Order, at 34-35.)
® The Court refers to the actual innocence gateway exception to procedural
default and the actual innocence equitable exception together as the actual
innocence exceptions.
10
Petitioner now asks the Court to amend its prior order to
certify the following questions for immediate appeal^ under section
1292(b):
(1)
Whether
new
innocence
evidence
exceptions
used
can
to
establish
include
the
evidence
actual
that
was
available to trial counsel but not used;
(2)
Whether
the
Martinez-Trevino
exception
applies
to
federal habeas cases arising in Georgia state courts;
and
(3)
Whether a freestanding claim of actual innocence is
cognizable in habeas corpus proceedings.
(Pet'r's Mot. to Amend Dec. 6th Order, Doc. 108, at 7; Pet'r's
Reply Supp. Mot. to Amend Dec. 6th Order, Doc. 114, at 10-11.)
The Court will address each question in turn to determine whether
it should be certified.
A. Whether
New Evidence
Used to Establish the Actual Innocence
Exceptions Can Include Evidence That Was Available to Trial
Counsel but Not Used
Even if new evidence used to establish the actual innocence
exceptions can include evidence that was available to trial counsel
but
not
used.
Petitioner
fails
to
show
the
actual
innocence
9 The Court may amend its prior order under Federal Rule of Appellate Procedure
5(a)(3), which states:
If a party cannot petition for appeal unless the district court
first enters an order granting permission to do so or stating that
the necessary conditions are met, the district court may amend its
order, either on its own or in response to a party's motion, to
include the required permission or statement. In that event, the
time to petition runs from entry of the amended order.
11
exceptions have been met.
Before the Court may find Petitioner
meets an actual innocence exception, it must find Petitioner has
demonstrated his actual innocence.
See Rozzelle v. Sec'y, Fla.
Dep^t of Corr., 672 F.3d 1000, 1009 (11th Cir. 2012) (per curiam)
("Necessarily subsumed within th[e] question [of whether there is
an actual innocence exception] is the threshold issue of whether
the petitioner has demonstrated his actual innocence in the first
place.").
actual
As discussed below. Petitioner has not made a claim of
innocence.
(See
section
11(C),
infra.)
Because
the
Eleventh Circuit's review of this issue would not alter the Court's
decision that the actual innocence exceptions have not been met,
the issue is not controlling and would not materially advance this
litigation.
Thus,
this
question
is
inappropriate
for
an
interlocutory appeal.
B. Whether
the
Martinez-Trevino
Exception
Applies
to
Federal
Habeas Cases Arising in Georgia State Courts
In the December 6th Order, this Court found that the Martinez-
Trevino exception does not apply in federal habeas corpus cases in
Georgia.
Further, the Court found that even if the Martinez-
Trevino exception applied, the claim would still be time barred by
the
AEDPA statute
of
limitations.
Petitioner does
not ask
to
appeal the Court's decision that the AEDPA statute of limitations
bars the claim for supplemental counsel even if the Martinez-
12
Trevino exception applies.
The Court has already addressed the
interplay between the Martinez-Trevino exception and the AEDPA
statute of limitations in its December 6th Order.
(See Dec. 6th
Order, at 16-17 ("Because Petitioner's new claim is time barred by
the AEDPA, it could not be heard by this Court even if it did meet
the Martinez-Trevino exception to procedural default.").)
The
Court reiterates its conclusion that, in this case, the Martinez-
Trevino
exception
limitations.
does
not
overcome
the
AEDPA's
statute
of
Thus, this issue is inappropriate for a section
1292(b) interlocutory appeal because resolution of it is not
controlling
and
would
not
materially
advance
the
ultimate
termination of this litigation.
C. Whether a Freestanding Claim of Actual Innocence is Cognizable
in Habeas Corpus Proceedings
Petitioner sought leave to amend his petition "to add the
claim that he is actually innocent of Marni Glista's murder and,
accordingly, his murder conviction and death sentence must be
vacated."
at 2.)
(Mot. to Am. Pet. for Writ of Habeas Corpus, Doc. 71,
In its December 6th Order, this Court correctly noted that
a freestanding claim of actual innocence has not been recognized
Petitioner, in a footnote, states that the decision the Court relied on in
determining that the Martinez-Trevino exception does not overcome the AEDPA's
statute of limitations is distinguishable.
(Pet'r's Mot. to Amend Dec. 6th
Order, at 14-15 n.9.)
At no point, however, does Petitioner ask the Court to
certify whether that decision was correct. Petitioner argues that he overcomes
the AEDPA's statute of limitations by his "colorable claim of actual innocence."
(Id. at 7.)
The Court examines that argument separately.
13
in federal habeas corpus proceedings.
(Dec. 6th Order, at 8.)
Before determining whether the Court should certify that question
for appeal, the Court first analyzes whether Petitioner has
demonstrated
his
actual
innocence
in
the
first
place.
Cf.
Rozzelle, 672 F.3d at 1009-10 (before Eleventh Circuit answered
certified question of "whether there is an ^actual innocence'
exception that will equitably toll the AEDPA statute of limitations
period," it had to determine whether petitioner could meet actual
innocence standard).
First, the Court outlines the actual innocence standard.
Second,
the
Court
analyzes
the
new
evidence
presented
in
conjunction with that presented at trial and finds Petitioner fails
to show he is actually innocent.
Thus, the question of whether
Petitioner may raise a claim of actual innocence is inappropriate
for an interlocutory appeal.
1. Actual Innocence Standard
To
show
actual
innocence.
Petitioner
must
present
"new
reliable evidence that was not presented at trial . . . to show
that it is more likely than not that no reasonable juror would
have found [him] guilty beyond a reasonable doubt in light of the
new evidence."
omitted).
include,
Id. at 1011 (internal citations and quotation marks
The new evidence used to show actual innocence may
but need not be limited to, "exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical physical
14
evidence."
Rozzelle,
Schlup v. Delo, 513 U.S. 298, 324 (1995); accord
672
F.3d
"counterbalance
the
at
1017.
evidence
Petitioner
must
that sustained
Rozzelle, 672 F.3d at 1017-18.
do
[his]
more
than
conviction."
Compare Id. at 1017 (finding
evidence insufficient to show actual innocence because "largely
cumulative of what the jury heard"), with House v. Bell, 547 U.S.
518, 548-54 (2006) ("rare case" where petitioner made showing of
actual innocence by presenting new evidence that "called into
question" the "central forensic proof connecting [petitioner] to
the crime" and new witness testimony that the victim's husband
confessed to killing her).
Furthermore, the evidence must show
"factual innocence, not mere legal insufficiency."
Sousley v.
United States, 523 U.S. 614, 623 (1998); accord McKay v. United
States, 657 F.3d 1190, 1198 (11th Cir. 2011) ("[N]ew evidence"
only went to legal sufficiency of evidence showing that a previous
crime
was
not
a
"^crime
of
violence'
under
the
[sentencing]
[g]uidelines," not "that he did not actually commit the crime of
carrying a concealed weapon. In other words, he makes no claim of
factual innocence of the predicate offense.") (emphasis omitted).
2. Evidence
Following a jury trial that took place January 13-23, 2004,
Petitioner
was
convicted
of
one
count
of
malice
murder,
three
counts of rape, four counts of aggravated sodomy, four counts of
aggravated assault, one count of possession of a knife during the
15
commission of a crime, and one count of burglary.
(Doc. 29-9, at
26-27.) On January 26, 2004, the trial court sentenced Petitioner
to death for the
murder of Marni Glista and gave Petitioner
consecutive sentences for the remaining offenses.
28-29, 34-36; Doc. 29-10, at 29-31.)
(Doc. 29-9, at
The Georgia Supreme Court
unanimously affirmed Petitioner's convictions and death sentence
on June 25, 2007.
Rivera v. State, 647 S.E.2d 70 (Ga. 2007).
The evidence presented at trial supporting that Petitioner
murdered Marni Glista consisted mostly of (1) interviews where
Petitioner confessed to the murder and provided corroborating
details of the murder and Ms. Glista's home and (2) Petitioner's
testimony at trial confessing to the murder.
After the Georgia
Supreme Court reviewed the evidence presented at trial, it stated;
The jury was authorized to find that Rivera followed
Marni Glista from
the
grocery store
into her
home,
overpowered her, bound her neck and wrists with medical
tape, raped her, sodomized her, and strangled her with
her bathrobe. Rivera testified that, although "he knew
Marni was still alive and could see her heart beating
very quickly," he left her bound and helpless until she
was discovered almost 24 hours later.
Id. at 80.
Petitioner argues the following new evidence shows he is
actually innocent of the murder of Marni Glista:
(1)
No rape kit yielded DNA suitable for forensic testing
(Mot. for Suppl. Counsel, at 16);
For a complete summary of the facts of the murder of Marni Glista see the
Georgia Supreme Court's summary in Rivera, 647 S.E.2d at 73-74.
16
(2)
Officers ceased investigating two other leads after
Petitioner's confession (id. at 18-19);
(3)
There
were
two
circular
patterned
injuries
on
Ms.
Glista's back, separated by about an inch, but the
investigation
reports
did
not
indicate
whether
the
tissue samples from these injuries were tested and, if
so, what the tests determined (id. at 16-17);
(4)
Petitioner is innocent of the murder of Tiffaney Wilson,
which was used as similar transaction evidence (id. at
30-53); and
(5)
Petitioner's
recorded
October
13,
2000
interview
("October 13th Interview") played at trial is unreliable
because (a) a partially recorded interview of Petitioner
on October 12, 2000 ("October 12th Interview"), was
discovered^2
showing
discrepancies
in
Petitioner's
testimony and coaxing by the interviewers^^ (id. at 20-
21) and (b) part of the facts included in Petitioner's
testimony were publicly available (Reply Br. Supp. Mot.
for Suppl. Counsel, Doc. 91, at 21).
^2 Although all parties knew of the October 12th Interview before trial, defense
counsel was told there was no audio recording of the interview.
(Mot. for
Suppl. Counsel, at 19-21; Investigator Roundtree Trial Test., Doc. 29-30, at
9:4-16.)
After trial, however, a partial audio recording of the interview
surfaced. (Adam Folk, ^Disarray' at Officer's Home Detailed, Augusta Chronicle,
Oct. 5, 2008, Doc. 32-1, at 202-03.)
Investigators Roundtree and Bunton conducted the October 12th and 13th
Interviews. (Mot. for Suppl. Counsel, at 19-20.)
17
The majority of this allegedly new evidence is insufficient
to establish Petitioner's actual innocence of Ms. Glista's murder
without much analysis from the Court.
The evidence that no rape
kit yielded results cannot possibly be used to show Petitioner's
actual
innocence.
The
facts
that
no
evidence
was
presented
regarding the circular marks or that the two other leads were
dropped also fail to show Petitioner was actually innocent.
Such
speculative assertions do not present new reliable evidence to
establish actual innocence.
See Lloyd v. Jones, No. 2:14cv707-
MHT, 2016 WL 7173883, at *7 (M.D. Ala. Oct. 20, 2016) (finding
petitioner's claim "that DNA testing of the rape kit might reveal
potentially exculpatory evidence" was not new reliable evidence
because it was "speculative" only).
Regarding evidence that Petitioner is actually innocent of
Tiffaney Wilson's murder, he argues that without this similar
transaction evidence, the jury would not have found him guilty of
murdering Ms. Glista.
The Court, however, need not engage in an
analysis of whether Petitioner has proven he was innocent of Ms.
Wilson's murder.
Even if a reasonable juror believed he was
innocent of Ms. Wilson's murder given the new evidence, it is not
more likely than not that no reasonable juror would have found
Petitioner guilty of Ms. Glista's murder, as discussed below.
That brings the Court to the new evidence Petitioner argues
shows his confessions to murdering Ms. Glista are unreliable.
18
The
majority of the evidence against Petitioner at trial was his own
statements about Ms. Glista's murder, which included details of
the murder that only the perpetrator would know.
Petitioner now
presents evidence arguing that the details Petitioner apparently
knew
from
sources,
first-hand
namely
the
knowledge
media
may
and
have
come
information
from
the
secondary
investigators
provided in the October 12th Interview.
The Court closely analyzes the articles cited by Petitioner
to
determine
whether
the
details
Petitioner
provided
of
Ms.
Glista's home and murder could have come from secondary sources.
In his reply brief in support of his motion for supplemental
counsel. Petitioner cites news articles arguing that the facts
Petitioner knew in his initial interviews came from
(Reply Br. Supp. Mot. for Suppl. Counsel, at 21.)
the
media.
Specifically,
Petitioner states he knew the following facts from news articles:
" Investigators intentionally kept details of the interior of Ms. Glista's home
and details of the crime scene out of the media. (Investigator Bunton Trial
Test., Doc. 29-14, at 167 ("[T]here had been quite a bit of publicity about the
attack itself but no descriptive — nothing descriptive in reference to the
inside of the home as he discussed.").) During the October 12th and 13th
Interviews, the investigators sought answers to questions that Petitioner would
not have known had he not been in Ms. Glista's home.
conveyed this to Petitioner by stating:
Investigator Bunton
Some of the things I'm asking you, Rey, are things that someone who
wouldn't
have
been in that home
understand what I'm saying now?
Okay.
would
not have known.
Do you
Law enforcement was in that house.
If you hadn't been in the house, you couldn't tell me certain
details
about
[t]he
inside
of
the
house.
You
follow
me? . . . These are things that have not been in print; have not
been publicized; that the media doesn't know.
(Oct. 13th Interview Tr., Doc. 29-29, at 180:6-15 (The Court cites to the PDF
page
numbers
of
the
October
13th
Interview
Investigator Roundtree's trial testimony.).)
19
Transcript
as
played
during
(1)
"Sgt. Glista['s] husband Jason 'had been deployed to
Kuwait
(2)
]
"[H]er gray GMC Suburban was parked in the driveway with
groceries she had purchased from Food Lion at about 11
a.m. Monday, according to neighbors"; and
(3)
"Sgt. Glista was found unconscious and 'asphyxiated' in
her home 'the day after Labor Day.'"
(Id.)
The Court examined the articles cited by Petitioner and other
articles found in the record.
In doing so, the Court found the
following additional information was publicly available before the
October 12th Interview:
(1)
Ms. Glista was in the military (Brandon Haddock, Soldier
Was Not Beaten, Augusta Chronicle, Sept. 12, 2000, Doc. 327, at 88); and
(2)
She had two pit bulls who recently had eight puppies
(Johnny Edwards, Officials Stay Mum on Attack, Augusta
Chronicle, Sept. 7, 2000, Doc. 32-7, at 94).
When Petitioner mentions in interviews any of the above facts cited
in brief or found in the record, the Court assumes those facts
originated from the media as opposed to Petitioner's experience.
After screening for information in the media and information
the investigators could have provided to Petitioner, during the
20
October 12th Interview Petitioner provided investigators with the
following first-hand details of Ms. Glista's home and murder^®:
(1)
Ms. Glista's bedroom was "pretty trashy" having clothes
"all over" it^^ (Oct. 12th Interview Tr. A, at 161; Oct.
12th Interview Tr. B, Doc. 32-1, at 172:6-10, 174:6-11);
(2)
There was "[n]othing to put the mattress on," but the
bed frames were in the room^'^ (Oct. 12th Interview Tr.
B, at 175:17, 175:21-176:2);
(3)
Ms. Glista was strangled by her own clothing^®;
The Court notes when Petitioner repeats or expands on any of these facts
during the October 13th Interview. The Court also agrees with Petitioner that
in the October 12th Interview he made a few assertions that do not comport with
his statements in the October 13th Interview. Specifically, before potential
leading from the investigators, Petitioner stated the victim's name was Marianna
not Marni, stated the grocery store as Winn Dixie instead of Food Lion, and
stated Ms. Glista and her husband had rottweilers instead of pit bulls. (Compare
Oct. 12th Interview Tr. A., Doc. 34-7, at 157, 159, 162, with Oct. 13th Interview
Tr., at 174:19, 178:2-3.)
Petitioner argues these discrepancies prove his
innocence.
The Court, however, disagrees because the discrepancies are
insignificant to the jury's verdict when compared with the details of the murder
Petitioner provided from his first-hand knowledge, as discussed below. Other
relevant discrepancies are noted throughout the analysis.
Petitioner expanded on this statement in the October 13th Interview by
stating, "The room that we went to was a room that was full of clothes that
needed to be washing [sic] or ironed or whatever." (Oct. 13th Interview Tr.,
at 178:24-179:1.)
Photographs of Ms. Glista's room support Petitioner's
testimony. (See Doc. 30-9, at 32, 49-53.)
Petitioner expanded on this statement in the October 13th Interview by
providing that the mattress was on the floor and the bed "rails or frame" were
"[i]n the corner" of Ms. Glista's bedroom. (Oct. 13th Interview Tr., at 179:314.) Petitioner's statements are accurate. The mattress and bed rails were on
the floor of Ms. Glista's bedroom when she was found.
(Officer Green Trial
Test., Doc. 29-27, at 137:1-4, 138:18-23; Investigator Piper Trial Test., Doc.
29-27, at 155:14-15.)
There is a discrepancy here because in the October 12th Interview, Petitioner
stated he strangled Ms. Glista with her shirt (Oct. 12th Interview Tr. A, at
169-70), but in the October 13th Interview, he confessed to strangling her with
her bathrobe (Oct. 13th Interview Tr., at 183:7-9).
Ms. Glista was strangled with her bathrobe.
21
The record reflects that
See Rivera, 647 S.E.2d at 80.
(4)
She was left with only her bra
(Oct. 12th Interview
Tr. A, at 174);
(5)
Her bra was black^o (id.); and
(6)
Her hands were tied together.21
After continuing to screen for information originating from
secondary
sources,
the
Court finds
Petitioner had first-hand
knowledge of the following additional details provided in the
October 13th Interview:
(1)
Ms. Glista's body would be located "on the foot of the
bed naked"22 (Oct. 13th Interview Tr., at 180:19-22); and
(2)
Petitioner "unplugged the telephone, the one in the
wall," which was "right outside the kitchen"23 (id. at
185:9-14).
Petitioner repeats this fact in the October 13th Interview providing that he
left her bra "hanging on." (Oct. 13th Interview Tr., at 181:3-4.) The record
confirms the accuracy of Petitioner's testimony. Ms. Glista was found in a
black lingerie outfit with her bra "pulled up over her breasts." (Officer Green
Trial Test., at 136:20-22; Investigator Piper Trial Test., at 156:4-5.)
20 In the October 12th Interview, when asking Petitioner what color Ms. Glista's
outfit was, one investigator listed seven possible colors. (Oct. 12th Interview
Tr. A, at 161.)
answer.
(Id.)
The list included black but did not signal black as the correct
In the October 13th Interview, Petitioner expanded on Ms.
Glista's outfit by providing that he had her model for him in black lace
underwear and a matching bra. (Oct. 13th Interview Tr., at 181:23-182:3.)
21 There is a discrepancy here because in the October 12th Interview Petitioner
stated he tied Ms. Glista's hands with a string. (Id. at 171). In the October
13th Interview, Petitioner stated it was "white, sticky tape" that "you find in
an EMT kit."
(Oct. 13th Interview Tr., 184:2-5.)
was found in Ms. Glista's bathroom.
"Standard medical-type tape"
(Investigator Piper Trial Test., Doc. 29-
27, at 157:14-15.)
22 Ms. Glista was found in this position.
(Officer Green Trial Test., at 136:30-
137:4; Oct. 13th Interview Tr., at 180:19-25.)
23 At the crime scene. Investigator Piper noted the phone cord had been pulled
from the base of the phone in the kitchen. (Investigator Piper Trial Test., at
153:15-23.)
22
Although the officer's asked a few leading questions and
provided some information to Petitioner, Petitioner showed in the
October
12th
and
13th
Interviews
that
he
knew
facts
about
Ms.
Glista's murder and home that required his physical presence.
It
is not enough to simply offer competing evidence; Petitioner must
show that with the new evidence it is more likely than not that no
reasonable juror would have found him guilty.
The Court also keeps
in mind that this new evidence would still be offered in light of
Petitioner confessing at trial to the rape and murder of Ms.
Glista.
After
examining
the
new
evidence,
the
Court
finds
that
Petitioner failed to meet his burden to show it more likely than
not that no reasonable juror would have found Petitioner guilty.
Thus,
whether
a
freestanding
claim
of
actual
innocence
is
cognizable in habeas corpus proceedings is not controlling nor
material to the termination of this litigation.
The Court denies
certification.24
III.
CONCLUSION
For the foregoing reasons. Petitioner's motion to amend the
Court's
December
6th
Order
to
add
a
certificate
permitting
immediate appealability (Doc. 108) is DENIED, and his motion to
24 Having failed to prove his actual innocence, the Court declines to certify
the question of whether new evidence used to establish the actual innocence
exceptions can include evidence that was available to trial counsel but not
used. (See section 11(A), supra.)
23
stay briefing schedule pending resolution of his motion to amend
(Doc. 115) is DENIED AS MOOT.
ORDER ENTERED at Augusta, Georgia, thi
day of June,
2019.
J. RANDAL HALL, CHIEF JUDGE
UNITED ^ATES DISTRICT COURT
DUTHE
24
DISTRICT OF GEORGIA
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