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)
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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