Rivera v. Humphrey

Filing 96

ORDER denying 71 Motion to Amend/Correct; denying 78 Motion to Appoint Supplemental Counsel ; terminating 95 Motion Requesting a Ruling. The Court also ORDERS the Clerk to UNSEAL all documents related to Petitioner's Motion to Appoint Supplemental Counsel. Signed by Chief Judge J. Randal Hall on 12/06/2017. (maa)

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IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FOR THE GEORGIA AUGUSTA DIVISION * REINALDO JAVIER RIVERA, Petitioner, v. * CV 113-161 CARL HUMPHREY, Warden, Georgia Diagnostic and Classification State Prison, * Respondent. ORDER Presently before amended petition amend (doc. (doc. 71-1); new claims petitions. It also (2) (3) (doc. raised Court 41); and supplemental counsel four the in are Petitioner's Petitioner's Petitioner's 78) . first second motion motion to to appoint The Court DENIES three of the Petitioner's DENIES (1) first Petitioner's and second motion to amended appoint supplemental counsel. I. Procedural Background Petitioner 2013. (Doc. filed 1.) It his original asserted six petition claims: counsel at trial and on appeal was ineffective on September (1) (id. 9, Petitioner's at 5); (2) The prosecution committed misconduct that deprived Petitioner of a fair trial (id. at 23); The trial court made errors and improper (4) at 17); (3) Jurors engaged in misconduct (id. rulings r- which deprived trial and court Petitioner of a gave sentencing death penalty September granting improper stage (id. 2014, Petitioner at 31); and this (6) (Doc. 40 at (id. a the guilt imposes at 33) . scheduling any Amendments 1.) the On order to the Petitioner timely 41.) His first amended petition asserted two additional claims: trial substantive errors that, to trial (id. a fair injection violates August 9, 2016, (Doc. 71-1.) Petitioner 71-1 at 18) contained so cumulatively, at the October The his Petitioner's on both (5) filed (1) petition file 25) ; Georgia entered "to at at capriciously thirty days amended and Court Petition for Habeas Corpus." first (id. jury instructions arbitrarily 19, fair trial 33); and Constitution 20, many they (2) (id. 2014. procedural violated Execution at (Doc. his by 41) . and right lethal Then, on Petitioner filed his second amended petition. This claims: (1) is actually innocent of Marina Glista's murder (id. and (2) petition added Petitioner's two final trial counsel was ineffective for reasons not enumerated in the original petition (id. at | 15a) . After filing his second amended petition, filed a motion for supplemental counsel. motion, Petitioner also (Doc. 78.) In the Petitioner requests supplemental counsel to investigate the effectiveness of his state habeas counsel. Petitioner claims his state habeas counsel failed to properly investigate and pursue the ineffective assistance of trial counsel claim which he now raises supplemental federal investigate excuse second motion to amend. because his are the counsel their was the his counsel habeas counsel in same and thus own effectiveness. ineffective, procedural state Petitioner default which He habeas requests and current unable to properly If his state habeas believes that it would currently bars the Court from considering the new ineffective assistance of trial counsel claim he raises in his second amended petition. II. The Court First and Second Amended Petitions reviews amended Petitions.1 claims he did not both Petitioner's first and second In these petitions, Petitioner asserts four assert in his original petition: (1) Cumulative errors violated his right to a fair trial (doc. 41 at 33); (2) Execution by lethal injection violates the Constitution (id. at 41); and murder (3) of Petitioner is actually innocent of the assault Marni Glista (doc. 71-1 at 18); and (4) Trial counsel provided ineffective assistance for reasons not listed in his original petition (doc. 71 at 2). 1 Petitioner filed his first amended petition in response scheduling order the Court issued on September 19, 2014. to a (Doc. 40.) The order stated that "Petitioner shall have THIRTY days ... to file any Amendments to the Petition for Habeas Corpus." original).) (Id. (emphasis in The Court, however, does not interpret its language to give Petitioner permission to file time-barred amendments. Thus, it still reviews Petitioner's first amended petition to ensure that its new claims are allowed under the AEDPA's statute of limitations. See Day v. McDonough, 547 U.S. 198, 209 (2006) T[D]istrict courts are permitted, but not obliged, to consider, sua sponte, the timeliness of a state prisoner's habeas petition."). The Court denies Petitioner's because it violates the Penalty Act ("AEDPA") statute didn't, it denies Antiterrorism of injection Effective and limitations claim Death and, even if is not a cognizable claim in habeas proceedings. Petitioner's innocence lethal claim Constitution. actual-innocence is not And cognizable it denies claim because under the Petitioner's an It actual- United new it States ineffective assistance of trial counsel claims because they are procedurally defaulted. error It does not, however, deny Petitioner's cumulative- claim. 1. Lethal-Injection Claim a. AEDPA Statute of Limitations Petitioner raises the lethal-injection first and second amended petitions. Petitioner's request claim The Court, in both however, his denies to add his lethal-injection claim because it is barred by the AEDPA statute of limitations. Under the AEDPA, state prisoners requesting habeas corpus relief must file their petition for relief within one year of (1) the final state ruling; (2) the date on which any impediment to filing an action was removed if the impediment was created by the State; date on which the constitutional right asserted was (3) the recognized or retroactively applied by the Supreme Court; or (4) "the date on which the factual predicate of the claim or claims presented could have diligence." been discovered 28 U.S.C. through the § 2244(d) (1) (A)-(D) . 4 \ exercise of Additionally, due any claims added within the either after the original petition statute of limitations. relate back under Federal If Rule must also they are of not, Civil be filed they must Procedure 15 or be subject to some other exception. Petitioner deadline has relates two to applicable Petitioner's state-court ruling deadline was at 7.) Petitioner 2013. state-court January 27, initial 2014. petition on The first ruling. The (See Doc. 86 September 9, (Doc. 1.) He filed his first and second amended petitions on October 20, 41 filed his final deadlines. & 71.) timely, his 2014, and August Thus, although first and 9, 2016, Petitioner's respectively. initial (Docs. petition was second amended petitions violated the state-court filing deadline. The second deadline relates to the date on which the factual predicate for Petitioner's constitutional claim could be discovered. The latest factual predicate Petitioner relies is a law signed by Governor Deal on July 1, 2013. 44.) Petitioner, however, did not file his on (Doc. 71-1 at first amended petition until well over a year later - on October 20, 2014. Thus, Petitioner's first and second amended petitions violated the factual-predicate deadline as well, and his lethal-injection claim is untimely under the AEDPA. Because the new claims presented in Petitioner's first and second amended petitions violate the statute of limitations, the Court will not hear them absent an exception. See Day v^ Crosby, 391 F.3d 1192, 1194 (11th Cir. 2004) (holding that a district court may sua sponte dismiss claims barred by the AEDPA statute of limitations because "[a] federal court that sits in collateral review of a criminal judgment of a state court has an obligation to enforce the federal state of limitations"). The Court now determines whether such an exception exists. The only exception applicable to Petitioner's claims is the "relation back" provision of Federal Rule of Civil Procedure 15. Rule 15(c) states that amended petitions are timely filed for purposes of the statute of limitations if they "relate back" to the original petition. (2005) (applying Rule See Mayle v. 15 to federal Felix, 545 U.S. 644, 655 habeas proceedings) . A petition "relates back to the date of the original when: . . . (B) arose out of the conduct, [petition] the amendment asserts a claim or defense that transaction, or occurrence set out - or attempted to be set out - in the original [petition]." R. Civ. P. Fed. 15(c)(1)(B). The purpose of Rule 15(c) is to "prevent parties against whom claims are made from taking unjust advantage of otherwise inconsequential defense." pleading Advisory errors Committee's to sustain Note Federal Rule of Civil Procedure 15. on 1991 a limitations Amendment to Rule 15 is not intended, however, "to be so broad as to allow an amended pleading to add an entirely new claim based on a different set of facts." v. United States, 278 F.3d 1218, 1221 (11th Cir. 2002). Dean It allows facts parties alleged permit an to in "correct the original entirely amendment." technical deficiencies pleading." different Id. transaction same and core consider 545 U.S. "conduct, amended of of at Davenport does not alleged by 656. transaction, An amended petition state facts." and the key words the occurrence" claims Id. that at occurrence." arises when are 664. and out "the tied Thus, to "in of the original a common order the untimely claim must have arisen from the facts' or "conduct, transaction, operative conduct are petitions relate back, set be expand Id. must Mayle, w[I]t to In deciding whether a claim relates back, Court or a v. as the timely separate United filed occurrence States, 217 claim, in not ^both F.3d from time 1341, and 1344 to Asame separate type.'" (11th Cir. 2000)(citations omitted). Petitioner's new claim does not relate back to his original petition, because his original Georgia's death-penalty procedure. petition did not challenge Thus, Petitioner has no hook on which to claim the relation back exception, and this claim is barred by the statute of limitations. b. Non-Cognizable Claim The Court also denies Petitioner's lethal-injection because it is not cognizable in a habeas proceeding. claim Habeas cases govern the constitutionality of a prisoner's conviction or sentence. McNabb v. Comm'r Ala. Dept. of Corr., 727 F.3d 1334, 1344 (11th Cir. 2013) . They do not govern the circumstances of confinement or imposition of punishment. procedures go to the conditions of proceeding, is the injection procedures." of Corr., claim 557 F.3d challenges constitutionality proper Id. ; see 1257, the of 1261 § way 1983 to (11th Cir. conviction. and not lawsuit, challenge also Tompkins v. lethal-injection his Because execution confinement, "[a] constitutionality of the conviction, habeas Id. Dep't. Petitioner's procedure, Thus, not a lethal Sec'y, 2009). the it not is the not a cognizable habeas claim. 2. Petitioner's Actual-Innocence Claim In his second amended petition, Petitioner asserts that he "is actually innocent of the assault and murder of Marni Glista." 71-1 at 2.) Petitioner argues that "trial counsel (Doc. ignored significantly exculpatory evidence" and "[h]ad such evidence been presented at [his] trial, convict [him] . . . ." no rational juror would have voted to (IcL at 21-22.) Petitioner then asserts, in a footnote at the end of his motion to amend, that "[a freestanding claim of actual innocence] is cognizable in habeas proceedings." (Doc. 71 at 10 n.3.) But actual (1993) the Supreme Court innocence claim. has never Herrera v. recognized a freestanding Collins, 506 U.S. 390, 400 ("Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state Eleventh Circuit. App'x. 974, 981 criminal proceeding."). See Mendoza v. Sec'y. (11th Cir. Neither has Fla. Dep't of Corr., 2016) ("[I]t remains an open the 659 F. question whether a freestanding actual innocence claim is even cognizable in a capital habeas case."). The Court therefore will not allow this claim to go forward. Additionally, this Court finds no basis in the Constitution for an actual innocence claim in habeas courts sit to violation Herrera, of the 506 U.S. federal habeas proceedings. "Federal ensure that individuals are not imprisoned in constitution at 400. criminal proceedings, — not to correct of fact." The state trial is the main event in and the "federal courts which to relitigate [it]." errors Id. at 401. are not forums in Indeed, "few rulings would be more disruptive of our federal system than to provide for federal habeas review of freestanding claims of actual innocence." Id. Thus, the Court agrees with the late Justice Scalia that "[t]here is no basis in text, tradition, or even in contemporary practice (if that were enough) for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward concurring), and after it conviction," dismisses id. at Petitioner's 427-28 (Scalia, freestanding J., actual innocence claim because it "is not a ground for relief on federal habeas corpus." Townsend v. Sain, 372 U.S. 293, 317 (1963). 3. Ineffective Assistance of Counsel Petitioner's because it is procedurally limitations default new ineffective time barred defaulted. bar issue in in its by The this assistance the AEDPA Court section. counsel and addresses It discussion of of because the addresses claim the Petitioner's fails it is statute-ofprocedural motion for outside the supplemental counsel. Petitioner admits limitations. that his (Doc. new 91 claim at 8.) was filed statute of Petitioner claims, however, that it does not violate the statute of limitations because it "relates back" to his original and first amended petition. In the alternative, he also argues that his claim is not barred by the statute of limitations because it qualifies for equitable tolling. The Court disagrees. a. Rule 15 Petitioner alleges that his trial counsel "failed to . . . investigate and develop readily available exculpatory evidence . . . indicating he falsely confessed to the sexual assault murders of Marni Glista and Tiffaney Wilson," and that his trial counsel failed to properly cross examine a state witness, Philip Henschel. 71-1 SI 15(b) & (u) .) (Doc. Petitioner asserts that these claims relate back to the claims in his original petition that his trial counsel failed "to utilize evidence in counsel's possession to marshal a meaningful and mitigating defense during Petitioner's capital trial" and that they failed to "to adequately use the investigative tools 10 and services material which evidence Petitioner's (Doc. to counsel that was had access reasonably guilt/innocence and and ... available to to present counsel aggravation/mitigation during trials." 71 at 8.) But Petitioner's new claim does not relate back to his original petition because facts." In order for an amended petition to be core of it is not operative "operative contains facts," facts." no such "tied to a the related allegedly false confessions. claim to "relate back." 2007 496608, WL axiomatic that original Petitioner's facts *6 (M.D. where, to Mr. Fla. as here, v. core of operative "tied to a common petition original Thus, Payne common must petition, Henschel or contain however, Petitioner's it is impossible for his new U.S., Feb. there No. 12, 8:05-CV-273-T-27MSS, 2007) ("Finally, are no facts it is presented in support of the original claims, there can be no "common core of operative facts uniting the original and newly asserted claims.'" (citing Mayle, 125 S.Ct. at 2569-75)). Additionally, conclusory allowing allegations Petitioner cited in his to relate original essentially obliterate the statute of limitations. U.S. 657-59. back petition to the would See Mayle, 545 The claims Petitioner cites from his original petition are so broad that any new factual theory could "relate back" to them. IcL at 656-57. The Supreme Court, however, has explicitly counseled against misusing Rule 15 in this way. 11 Id. at 658-59. Therefore, Petitioner may not "relate back" his new ineffective assistance of trial counsel claim to his original petition. b. Equitable Tolling Equitable Petitioner tolling can limitations. court may bypass Holland equitably petitioner proves diligently, and is the v. (2) Florida, the that that Thomas v. Cir. Extraordinary garden variety id. omitted). at has 651-52 Indeed, which a mandated way statute of 631, (2010). A U.S. of in 645 limitations been pursuing if his Att'y Gen., 795 F.3d 1286, circumstances do neglect leads a lawyer to miss (internal citations "attorney negligence, stood 1291 not the rights extraordinary circumstance claim of excusable miscalculation that See 560 statute he some in his way." 2015). additional congressionally toll "(1) an (11th include such as a "a simple a filing deadline." and quotation marks even gross negligence or recklessness, is not an extraordinary circumstance." Id. Petitioner claims that "he is entitled to equitable tolling due to a conflict of interest that arose from the fact that the Georgia Resource Center attorneys, from state habeas proceedings until recently, failed to recognize the IATC claims he has newly raised." alleges competent (Doc. that 91 at 11 his legal representation (emphasis added).) habeas counsels' challenge constitutes to an "inability their to own extraordinary justifying equitable tolling . . . ." 12 Specifically, raise he a ineffective circumstance (Id^ at 12.) In other words, was Petitioner claims that because his federal habeas counsel also his recognize federal from state at the counsel raising petition. state had counsel, level and because the claims he a conflict of interest new the This requisite habeas claims in his conflict "extraordinary of they now that initial interest, circumstance" he failed to raises, his prevented them federal asserts, required habeas is for the equitable tolling. First, Petitioner's "extraordinary argument circumstance" at fails issue here because is not the divided loyalty or conflict of interest, but simple attorney negligence: Petitioner's postconviction attorneys failed to recognize claims that they Court, now however, negligence equitable is believe has not tolling," they made an could it have raised. "abundantly extraordinary especially clear "in the 560 U.S. at 655 (Alito, J., Supreme that circumstance attorney warranting postconviction where the prisoners have no constitutional Holland, The context right to counsel." concurring). Thus, the negligence of his postconviction attorneys will not suffice to establish the extraordinary circumstance needed for equitable tolling. Second, Petitioner's argument fails to meet the Eleventh Circuit's standard for equitable tolling of the AEDPA. In the Eleventh Circuit, "e]quitable tolling based on counsel's failure to satisfy the AEDPA's statute of limitations is available only 13 for serious instances of attorney misconduct." at 1291 (internal citations and quotation marks petitioner can establish attorney misconduct that his attorneys "through their conduct, [him]." Id. abandoned him. statute of assistance 4. Petitioner does not Therefore, the Court limitations of trial on his 795 F.3d omitted). only when he A shows effectively abandoned allege will new Thomas, that not claim his toll of attorneys the AEDPA's ineffective counsel. Cumulative-Error Claim Petitioner also raises a new, cumulative-error claim. Petitioner challenges the cumulative-error claim on the grounds that it is declared, until procedurally however, the merits whether defaulted. The Court has already that it will not address procedural default briefing Petitioner's stage. Thus, cumulative-error it will claim not is address procedurally defaulted at this time. Because Petitioner has challenged this claim on no other grounds, the Court must now only consider whether the new claim "relates back" satisfies earlier to Petitioner's the AEDPA's noted, amended statute original of limitations. petitions "relate claim arose "from the 'same set of facts' claim, claim such As back" that this when it Court the new as the timely filed not from separate conduct or a separate occurrence in both 'time and type.'" Petitioner relies on Davenport, no new 14 217 F.3d at 1344. facts, but merely Because makes an additional claims, claim — legal claim — added together, the Court that all the previously alleged legal amount to finds purposes of Rule 15(c). that a separate and distinct legal his Thus, new claims relate back for the Court will allow Petitioner's cumulative error claim to proceed to the merits stage. Ill. Motion for Supplemental Counsel The Court supplemental ineffective defaulted, now considers counsel. Petitioner assistance and he Petitioner's of trial offers two admits counsel theories that claim for motion is for his new procedurally escaping its bonds. First, he argues that the Supreme Court decisions in Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler, 133 S. Ct. 1911 (2013), require this Court to excuse his procedural default. Second, he claims excuses his procedural supplemental establish that the actual-innocence counsel the default. because he Martinez-Trevino gateway exception Petitioner claims it exception. only is Thus, asks necessary for to Petitioner's motion is actually a motion to excuse procedural default. The exception Court nor concludes the that neither actual-innocence gateway Petitioner's admitted procedural default. Petitioner's motion supplemental counsel to is appoint 1. Martinez-Trevino Exception 15 if Martinez-Trevino exception excuse The Court also denies supplemental unnecessary exception does not apply. the the counsel because Martinez-Trevino Petitioner admits that his claim is procedurally defaulted. What he seeks is an exception to the doctrine of default based on two recent Supreme Court cases. provides that, in of counsel assistance procedurally very limited at defaulted the The exception circumstances, state ineffective habeas ineffective level assistance procedural of may trial excuse counsel claims. Petitioner requests supplemental counsel solely for the purposes of proving his state Under Petitioner's theory, habeas counsel was habeas counsel was ineffective. if he can demonstrate that his state ineffective, he can establish this exception and proceed with his new ineffective assistance of trial counsel claims. At the outset, the Court notes that Trevino exception were to apply to defaulted assistance ineffective Petitioner's claim explained earlier, trial counsel limitations, would Petitioner's of be trial barred. procedurally counsel As claim, the Court Petitioner's new ineffective assistance of claim is and it is Martinez-Trevino still even if the Martinez- barred not exception, filing under the AEDPA's by subject the AEDPA statute to any exceptions. however, does not excuse statute of limitations. of The a late Arthur v. Thomas, 739 F.3d 611, 630 (11th Cir. 2014) ("[T]he Martinez rule explicitly relates to ineffective-trial-counsel excusing claims a and procedural does not default apply to AEDPA's statute of limitations or tolling of that period. 16 of the . . . At no point in Martinez or Trevino did the Supreme Court mention the 'statute tolling in of any limitations,' way."). AEDPA's The limitations Martinez-Trevino exception or only excuses procedural default. Id. is time barred by the AEDPA, it could not be heard by this Court even if it Because period, Petitioner's new claim did meet the Martinez-Trevino exception to procedural default. But, even if Petitioner could avoid the AEDPA's limitations bar, he could procedural default under procedural default provides review merits not the of establish Martinez-Trevino. that claims, "a an including exception to doctrine of The federal statute of court will constitutional not claims, that a state court declined to hear because the prisoner failed to abide by a state procedural rule." Martinez, 566 U.S. at 9. In other words, if a state prisoner attempts to bring a claim in a federal habeas petition that, for procedural reasons, he could not bring in state court, claim. The judgments are doctrine is the federal court will not hear the "designed accorded the to ensure that finality and respect state-court necessary to preserve the integrity of legal proceedings within our system of federalism." But Id. "[t]he doctrine baring procedurally from being heard is not without exceptions. defaulted claims A prisoner may obtain federal review of a defaulted claim by showing cause for the default and prejudice from a violation of federal law." 17 Id- at 10. "The excuse the v. a rules for when a prisoner may procedural [Supreme] Zant, default are elaborated Court's discretion." 499 U.S. For years, 467, 490 establish cause Id. at in 13. the to exercise of (citing McCleskey (1991)). the Supreme Court held that "[n]egligence on the part of a prisoner's postconviction attorney does not qualify as ^cause'" to 565 266, U.S. excuse 280 procedural (2012). default. Cause See Maples for procedural v. Thomas, default exists only where "something external to the petitioner . . . impede[s] [his] efforts to comply with the State's procedural rule." Attorney negligence attorneys, prisoners could especially have in not be the Id. "external" postconviction no constitutional the prisoner's agent. an cause Id. because context right to an attorney, where act as In 2012, however, the Court changed its position. In Martinez, the Court held that the negligence of a postconviction attorney can qualify as "cause" for procedural default 566 A under certain prisoner can rendered circumstances. establish cause ineffective assistance Martinez, U.S. at 9. if a postconviction attorney of counsel review collateral proceeding," that is, during an "initial- "collateral proceedings which provide the first occasion to raise a claim of ineffective assistance [of trial counsel]." that than Id^_ at 8. The Court reasoned such "initial-review collateral proceedings" are different normal post-conviction proceedings because "when an attorney errs in initial-review collateral proceedings, it is likely that no state court at any level will hear the prisoner's [ineffective Thus, if attorney a assistance prisoner during his of trial lacks first an counsel] attorney opportunity assistance of trial counsel claim, federal the habeas court ineffective Therefore, a should assistance petitioner to lacks raise procedural trial may or Id. an an at 11. effective ineffective "as an equitable matter," the excuse of claim." counsel establish default claim. cause and Id. for hear at 14. procedural default if "a state requires a prisoner to raise an ineffectiveassistance-of-trial-counsel and or (a) claim in a the counsel provided is ineffective set forth in Strickland v. Washington, In 2013, Trevino, 133 S. Ct. at 1911. excuse procedural assistance procedural framework, ineffective assistance not under 466 U.S. 668 the standard (1984). Id. the Court once again expanded this exception. ineffective "does proceeding" it fails to provide counsel at the collateral proceeding (b) would collateral offer most of In Trevino, default trial even of trial the Court held that it for failure counsel if not counsel defendants a See claim to raise when explicitly a meaningful state's banning claim on direct an an appeal, opportunity to present a claim of ineffective assistance of trial counsel on direct appeal." establish cause Id. at 1921. In other words, a petitioner can for failing to raise an ineffective assistance of trial counsel claim in state court even if the state did not 19 require that he wait until collateral appeal to raise his claim. If a prisoner ineffective could not, assistance as a of trial practical counsel matter, raise claim on direct his appeal, he was entitled to effective counsel at his first opportunity to raise his claim on collateral appeal. In sum, following that, the narrow as Martinez and exception an the challenge equitable effectiveness decisions create procedural to Trevino default. They matter, prisoners of their have trial a the hold right counsel. to Thus, states must give prisoners a meaningful opportunity to challenge the effectiveness the aid first of raise things, of their effective such a trial counsel claim. counsel at If the a and provide point state when does a not them with prisoner may do these two federal courts will not declare a petitioner's failure to challenge the effectiveness of trial counsel in state court procedurally defaulted. Petitioner the [] asserts first opportunity that [he] "[s]tate that, because proceedings were had to challenge the adequacy of his trial counsel's representation." reasons habeas (Doc. 78 at 56.) He then this was his first opportunity to raise this claim, he had a right to effective assistance of counsel as to this claim under Martinez and Trevino. (Id. at 56-57.) Because he had a right to effective assistance of counsel at his initial-review collateral proceeding, he argues, he should be able to argue that his state habeas counsel was ineffective for 20 failing to raise his new ineffective assistance of trial counsel claims. If he did habeas counsel, he suffer argues, procedural default. Petitioner's first from ineffective assistance he can establish cause to of state excuse his (Id. at 54.) claim opportunity to that raise state his counsel claims rests upon his habeas proceedings ineffective were assistance of his trial belief that Georgia law precluded him from effectively raising his ineffective assistance claim on direct appeal. Rivera's Petitioner claims that "[u]nder Georgia law, Mr. continued prevented him representation by from raising ineffective assistance He therefore contends counsel trial (Id.) during his counsel's of the counsel direct appeal, effectiveness counsel claim at that because trial that trial." he was he (Doc. received 78 at 56.) represented by trial he could until [on appeal] the not challenge habeas his proceedings. Petitioner is wrong. The exhaustive briefing by the State demonstrates that Georgia law did not preclude Petitioner from bringing his claim on direct opposite. appeal. In fact, Georgia law dictates quite the Because the law so clearly contradicts Petitioner, the Court quotes at length an opinion from the Georgia Supreme Court holding that assistance of an counsel indigent on direct prisoner claiming appeal has a ineffective right not only under the United States Constitution, but also under the Georgia Constitution, to new counsel: 21 Appellant Georgia at is entitled Constitutions trial. counsel conviction. financial required to Appellant's extends to to of from his to counsel, his and counsel assistance found was for States assistance appeal retain counsel United effective appellant to provide to direct Because the effective right a resources under criminal lack the State the trial, was and for his first appeal as a matter of right. Appointed counsel, less required than effective retained assistance. from conflicts Under of being moment is a Georgia any issue of is provide counsel free appellant law, was ineffective assistance the earliest practicable moment to deemed ineffectiveness counsel to waived. This claim be made requisite of a at requirement the sound earliest system public mean that .... the By earliest ineffectiveness that be an practicable of criminal practicable moment, claim must of avoid justice, serving alike the proper ends of defendants the no interest. raise trial counsel at is Effective well-established required to it counsel, of and we raised before appeal if the opportunity to do so is available. However, appellant's trial counsel could not reasonably be expected to assert or argue his own ineffectiveness on appeal. claim Counsel must be prosecuting free to an operate ineffective assistance independently of the attorney whose performance is in question. Appellant does not have the right to be represented by counsel and also to represent himself. Accordingly, appellant could not assert a pro se claim of ineffective assistance while represented by counsel. Hence, appellant's trial counsel appropriately raised this issue on behalf of his client and then sought, our holding in White representing appellant. consistent with v. Kelso, to be removed from Appellant's ensuing request that 22 conflict-free necessarily effective counsel predicated counsel the trial court, comprehended appointment of the on of policies, are appellant was his appeal. to represent constitutional We policies need of counsel States the constitutional on conflict and not the Council because Georgia, to the not counsel was right to whether correctly regarding Constitutions the representation conflict-free, him decide governing authority here. entitled i.e., appointed in denying appellant's request, the United effective, be Council's We hold that on appeal by a matter of as law. Appellant was constitutionally entitled to the appointment of conflict-free counsel to represent him on appeal. We therefore reverse the decision of the Court of Appeals and remand the case for the trial court to consider appellant's allegation of ineffective assistance under the representation of new counsel. Garland v. State, 657 S.E.2d 842, 843-44 (Ga. 2008)(emphasis added)(internal citations and quotation marks omitted). This Court cannot overlook Georgia Supreme Court. wait until representation such clear precedent by the Petitioner's argument that he had to collateral proceedings fails. clearly He to challenge could have made his his new ineffective assistance of trial counsel claims before he filed his state habeas petition. the Georgia Supreme Indeed, he had a right, according to Court, under the Georgia and Federal Constitutions to make such an argument with the assistance of 23 effective, conflict-free established that ineffective ineffective Court Georgia assistance "most defendants of Because explicitly counsel on Petitioner has prohibits direct appeal not raising or denies a meaningful opportunity to present a claim of assistance will counsel. not of trial excuse counsel Petitioner's ineffective assistance of trial counsel on direct appeal," procedurally this defaulted claim. 2. Actual Innocence Gateway Exception Petitioner exception also excuses argues his that the actual-innocence procedurally defaulted assistance of trial counsel claim. (Doc. first argument notes that this alternative 78 at Petitioner's request for supplemental counsel. alternative theory for excusing his ineffective 58.) has gateway no The Court effect on It is instead an procedurally defaulted ineffective assistance of trial counsel claim. The who actual-innocence would otherwise be gateway barred exception from bringing allows a a prisoner constitutional claim in federal habeas court because of procedural default to bring his claim if he can make a proper innocence. Rozzelle v. 1000, (11th Cir. 1011 showing of actual Sec'y Florida Dep't of Corr., 672 F.3d 2012). The exception applies to both procedurally defaulted claims as well as untimely claims under the AEDPA. IcL_ habeas proceedings, It is a result of the equitable nature of which prioritizes the desire to avoid a "fundamental miscarriage of justice," such as incarcerating an 24 innocent person, over the need for finality and comity of state court decisions, such as default. See Thus, actual the exceptional high. Smith case respect for the doctrine of v. Murray, innocence where gateway the clear, the U.S. should probability See McQuiggin v. Perkins, To be 477 of 133 S. Ct. actual-innocence a freestanding actual-innocence claim. 527, procedural 537-38 open only actual 1924, (1986). upon innocence 1936 is is (2013). gateway exception It the is not only a method by which a prisoner may obtain review of an otherwise unreviewable claim. gain Procedurally defaulted or time-barred entrance through the actual-innocence prisoner supplements his constitutional showing of factual (quoting Kuhlmann v. in original)). innocence.'" Wilson, 436, may only gateway " 'where the claim with Herrara, 477 U.S. claims a colorable 506 U.S. at 404-05 456 (1986)(emphasis In other words, "a claim of actual innocence is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits." To establish an actual-innocence procedurally defaulted claim, Id. exception Petitioner must "(1) to his present new reliable evidence . . . that was not presented at trial and (2) show that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt." Rozzelle, marks 672 F.3d at omitted). 1011 "This (internal citations 'new' 25 evidence must and quotation do more than counterbalance conviction. the [It] considered with confidence in likely than petitioner the not and evidence must insufficiency" 614, 623 a. must the be result quotation establish of guilt. sustained significant record of no beyond that so trial that guilty citations evidence as the a trial reasonable a marks v. it that doubt." is have Id. not more found (internal Additionally, United that, undermines it would innocence, Bousley petitioner's reliable whole, such omitted). "factual and juror reasonable the the mere States, new legal 523 U.S. (1998)(emphasis added). "New" Evidence The first determination the Court must make is whether the evidence presented by Petitioner is "new". Petitioner claims that not his trial. evidence is Respondent, "new" however, because it was presented at claims that the evidence was not "new" because it was available to be presented at trial. The parties' v. Delo, held: dispute arises from vague language in Schlup 513 U.S. "To be 298 credible, (1995). [an In Schlup, the Supreme Court actual-innocence claim] requires petitioner to support his allegations of constitutional error with new reliable scientific evidence evidence, - whether trustworthy it eyewitness be exculpatory accounts, or critical physical evidence - that was not presented at trial." Id. at 324. innocence' It also noted that "the emphasis on ^actual allows the reviewing tribunal also to consider the 26 probative force of relevant evidence that was either excluded or unavailable however, at trial." clarify Id. whether not presented at trial at or The evidence" "new 327-28. Court meant did merely evidence not presented at not, evidence trial that was also not available to be presented at trial. Currently, issue. On one Petitioner: trial, there exists a significant circuit split on the New side evidence regardless presented. of 2003) ("Particularly those is merely whether Gomez v. constitutional are Jaimet, in violation a or 350 case claimed is circuits that agree evidence not not could it F.3d 673, where the with presented have 679-80 the at been (7th Cir. underlying ineffective assistance of counsel on a failure to present evidence, a requirement that new the evidence be unknown to the defense at time of trial would operate as a roadblock to the actual innocence gateway."); Griffin v. Johnson, 350 F.3d 956, 963 (9th Cir. 2003) ("[W]e hold that habeas petitioners may pass Schlup's test by offering Anewly presented' evidence of actual innocence."). On the other side are those circuits that agree with Respondent: New evidence must be evidence not offered at trial and not available to be offered at trial. 2009) ("Thus, Wolfe v. Johnson, 565 F.3d 140, 170 (4th Cir. under controlling precedent, the evidence supporting a showing of actual innocence need not be admissible at trial, but merely relevant and previously unavailable."); Goldblum v. Klem, 510 F.3d 226 n.14 (3rd Cir. 2007) 27 ("Evidence is not 'new' if it was available at trial, but a petitioner merely chose not to present it to the jury.")(internal quotation marks Cir. omitted)); 1997) trial Amrine v. Bowersox, 128 F.3d 1222, 1230 (8th ("The evidence is new only if it was not available at and could not have been discovered earlier through the exercise of diligence."). The Eleventh Circuit has not yet entered the fray. they have consciously chosen to Rozzelle, 672 issue, this F.3d at pick and that establishing Amrine, earlier 128 a side. "new Thus, at through F.3d at 1230. trial the it now sides for See purposes evidence" gateway and time-barred available melee. because the parties raise the actual-innocence defaulted "not discovered holds an procedurally was But Court must Respondents that 1018. stay clear of the Indeed, claims and exercise could of with of exception means not due to evidence have been diligence." This decision puts this Court accord with at least one other district court in this in Circuit. See Gray v. Daniels, No. 7:14-cv-00271-RDP-TMP, 2015 WL 4641512, *6 (N.D. Ala. Aug. 4, 2015) ("This Court believes 'new' evidence must be evidence that petitioner did not possess or know about at trial and could not have known about with the exercise of diligence."). The Court concludes that the restricted definition of "new" is superior for two reasons. First, the restricted definition best fits within the Supreme Court's textual demand. 28 Although the Supreme evidence must presented, consider either Court not it the did have did The presented that probative use specifically been say of force of at "unavailable address and whether not available "reviewing the unavailable excluded or 327-28. not tribunal relevant trial." or evidence Schlup, excluded" the to [may] that 513 indicates be was U.S. that at the Court was referring to evidence that was not available at trial rather than evidence that was not presented at trial. Had the Court desired to include within its definition of "new evidence" evidence that was merely not presented at trial, it would not have used such exclusionary language. Second, the Court defines "new" narrowly because it assures that actual-innocence gateway exceptions will continue to be exceedingly "rare" and difficult to prove. Were the Court to side door with challenges Petitioner, to trial it would strategy and open the attorney error for endless that would continuously call on courts to speculate about what a reasonable juror would have done had he heard certain pieces of evidence that could have been presented but were not. The result would be lengthy and protracted litigation in every capital habeas case, because the petitioner could essentially force the state to retry his case in every instance that he failed to raise a constitutional claim. still succeed. through such Even if the petitioner failed, The time, factually effort, complex 29 he would and energy needed to wade and intricate issues would significantly justice. slow See will defendant innocent as process Martinez, dissenting)("[I]n review] the capital 566 victims whose life to he the at imposition 23 (Scalia, [lengthening reduce years delay U.S. cases, effectively many more and the federal sentence, live, beyond snuffed out, the as J., habeas giving lives the of of process the the of federal habeas may consume."). The Court is mindful of the toll that such additional litigation would take upon judicial resources and our system of federalism. It sits on the frontlines of habeas litigation. It recognizes that each habeas claim, if it is to be treated fairly and justly, adjudicate. takes a considerable amount of resources to It also recognizes that state courts are courts of concurrent jurisdiction that are perfectly capable of faithfully interpreting the Constitution, see Taflin v. Levitt, 493 U.S. 455, 458-459 (1990) ("Under [our] system of dual sovereignty, we have held consistently authority, that state courts and are thus presumptively competent, have to adjudicate claims arising under the laws of the United States."); v. Hunter's Lessee, state courts integrity, States, are, 14 U.S. 304 and always and wisdom, (1816) will be, inherent Martin ("[T]he judges of the of as much learning, as those of the courts of the United (which we very cheerfully admit,). . • . "), and that every time this Court unnecessarily reviews a state court's application of federal law, it diminishes and challenges their 30 role within (Scalia, our J., [significant finality attempts will power be to honor either the including and frustration the punish it Eleventh the offenders not of and the do Circuit so review both their reach the the Thus, absent or U.S. at of United in the States' good-faith this its clear 26 imposes 'reduction rights."). expanding will 566 habeas States, when and Martinez, ("[F]ederal constitutional careful jurisdiction, from on litigation to system. dissenting) costs] of sovereign federal Court habeas instruction States Supreme Court. b. Petitioner's Evidence The Court now examines whether Petitioner's evidence was not presented at trial and was not available to be presented at trial. Petitioner Petitioner Tiffaney falsely Wilson investigators' that cites following confessed (doc. initial Petitioner's the 78 at to initial "new evidence": killing 2); interview as (2) A Marni was than Petitioner must have attacked and of demonstrates coerced and that the investigators were not being truthful (id. at 22); other Glista recording tape with Petitioner confession (1) Sgt. (3) A person Glista because investigators found a grown pit bull roaming Sgt. Glista's house and neighbors claimed it would have attacked a person with whom it was not familiar (icL at 13) ; (4) The doctor who conducted the autopsy believed that marks on the back of Sgt. Glista were consistent with a stun gun and requested that they be further 31 analyzed, but no further analysis was conducted after Petitioner confessed to Sgt. prosecution's Tiffaney use Wilson Petitioner's 31-37, of murder Petitioner's was critical confession surrounding Ms. at Glista's (id. confession to was at 16-17); to convicting inconsistent the (5) The murder Petitioner, with the but facts Wilson's death and could not have been true 40-43); and (6) The prosecution relied of upon (id. Philip Henschel's testimony to corroborate Petitioner's confession that he killed Wilson, but riddled with inconsistencies (id. None evidence admits Tiffaney of was that this evidence, available (1) at "trial Mr. Henschel's is "new." of the was in possession Mr. trial. Rivera's (doc. counsel "investigate and develop evidence within to 78 at 37 their possession" this Petitioner of (emphasis added)); that Mr. of evidence recitation of Wilson's murder]" failed All time counsel that dramatically undermined was at 43). however, the testimony readily Rivera's (2) [Ms. trial available version of description of Ms. Wilson's murder could not have been accurate (id. their at 37-40 (emphasis added)); possession information (3) that "[t]rial counsel had in discredited . . . the testimony of Phillip Henschel" (id. at 51 (emphasis added)); (4) "[h]ad [trial counsel] the autopsy report hired a forensic pathologist to review and evidence considered by [the state pathologist] they would have learned of several facts that were inconsistent with Mr. Rivera's 32 [confession to murdering Ms. Wilson]" about (id. the at tape known law because its counsel] indicate Mr. they had in to a Roundtree" of perpetrator was known" interview room at and its 22); Glista's murder familiar last and details person with receipt .... Marni a have "property (id. their possession rather than Mr. first evidence investigation the "should Rivera's the Glista and her adult pit bulls, the attack, counsel possessed Investigator enforcement's that trial of submission possessor, "[trial (5) recording investigators reflecting 41); (6) about . to Sgt. who may have used a stun gun in Rivera, a stranger who appears not to have had a stun gun" (id. at 3 (emphasis added)). Indeed, supplemental ineffective the whole thrust of Petitioner's motion to appoint counsel because it is that failed to state claim habeas that counsel trial counsel was was ineffective for failing to use the evidence described above to acquit Petitioner. Petitioner asserts that "[t]rial counsel in the matter ignored reliable evidence in the discovery materials the State disclosed prior to trial which significantly undermine the credibility of Mr. Rivera's confessions and indicate that he falsely confessed to the murders of [Sgt. Glista] and [Tiffaney Wilson]." (Doc. 78 at 2.) Petitioner further asserts that after reviewing the record, his federal habeas counsel concluded that "trial inter counsel alia to provided ineffective investigate demonstrating that Mr. and Rivera representation develop in failing exculpatory evidence falsely confessed to murdering 33 Marni Glista and Tiffaney Wilson." (Id. at 3.) Not once does Petitioner claim that newly discovered evidence demonstrates his innocence. existing failed Petitioner's evidence to use. that Thus, entire trial none claim counsel of is had based in Petitioner's upon its previously possession but evidence is "new," and Petitioner cannot use the actual innocence gateway exception to excuse trial his counsel procedurally defaulted his claims. amended of Conclusion petitions, Petitioner asserts four new The Court DENIES three of Petitioner's four new claims.2 (Docs. 41 & 71.) claim because is assistance claim. IV. In ineffective not it The Court denies Petitioner's lethal-injection violates cognizable Petitioner's in the a AEDPA habeas actual-innocence claim statute of limitations proceeding. because an It and denies actual-innocence claim is not cognizable under the United States Constitution. And it denies Petitioner's new ineffective assistance of trial counsel claims because they are barred by the AEDPA statute of limitations and are procedurally defaulted. It allows proceed, however, Petitioner's cumulative error claim. to Finally, 2 The Court also ORDERS the Clerk to TERMINATE Motion Requesting a Ruling. documents Counsel (Doc. 95.) related (docs. 78, to 86, The Court also ORDERS THE Clerk to UNSEAL all Petitioner's & 91). 34 Motion to Appoint Supplemental the Court (Doc. DENIES Petitioner's motion for supplemental counsel. 7 8.) ORDER December, ENTERED at Augusta, Georgia, this ^ day 2017. J. R^NDfiirHALL, CKIEF JUDGI UNITED/STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA 35 of

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