Arrington v. Warden

Filing 67

ORDER dismissing without prejudice Claims One, Two, Three, Four, Five, and Seven of Petitioner's petition for failure to meet the fact-pleading requirements of Federal Habeas Rule 2. The Court dismisses with prejudice Claim Eight because it is not a cognizable claim in habeas proceedings. The Court requires no action by Respondents with regard to Claim Six because Respondents have already voluntarily filed an answer in this case. Signed by Chief Judge J. Randal Hall on 09/14/2017. (thb)

IN THE

UNITED

STATES

DISTRICT

SOUTHERN DISTRICT

OF

COURT

FOR THE

GEORGIA

AUGUSTA DIVISION

*

ROBERT OWEN ARRINGTON,
*

Petitioner,
*

v,

WARDEN,

CV

117-022

*

GDCP,
*

Respondent,

*

ORDER

Presently

before

the

Court

is

petition for writ of habeas corpus.
Court

DISMISSES

Five,

and

WITHOUT

Seven

sufficient

facts.

failure

state

of

to

Petitioner's
It

a

PREJUDICE

Robert
(Doc.

Claims

1.)

claim cognizable

Two,

for

Three,

failure

PREJUDICE

in

Arrington's

Upon review,

One,

petition

DISMISSES WITH

Owen

habeas

Claim

to

the

Four,

plead

Eight

for

proceedings.

It

allows Claim Six to proceed.

I. Background

In

May

County,

2004,

Georgia,

sentenced

to

a

jury

in

convicted

death.

From

the

the

Superior

Petitioner
time

of

of
his

Court

of

murder.
conviction

Richmond
He
until

was
the

filing of the current petition, Petitioner has sought relief from
various

state

courts

on

direct

appeal

and

in

habeas

actions.

Petitioner now petitions this Court for a writ of habeas corpus.

II.

Under

Habeas

petition,

must

Corpus

"promptly

Discussion

Rule

4,

the

examine

Court,

it."

"If

upon

it

receiving

plainly

a

appears

from the petition and any attached exhibits that

the petitioner

is not

the judge must

entitled to

relief in the

dismiss the petition . . . ."
the

petition,

answer,
other

"the

motion,

action

judge

district court,

Id.

must

If the judge does not dismiss

order

the

respondent

to

or other response within a fixed time,

the

judge may order."

this case to proceed,

Id.

Thus,

file

an

or to take

before

allowing

the Court must first determine whether the

petitioner "is [plainly] not entitled to relief."
The

Court

concludes

that

seven

of

the

eight

Petitioner's petition do not entitle him to relief.

Two,

Three,

Four,

standards

of

U.S.

65.5-56

644,

Five,

Habeas

and

Corpus

(2005).

Seven

Rule

fail

2(c).

to

See

Claim Eight

is

meet
Mayle

not

claims

in

Claims One,

the
v.

pleading

Felix,

545

a cognizable claim

in habeas proceedings.
The

Rule
Five,

Court

2(c).
and

Finally,

it

It

first

then

Seven

discusses

explains

do

not

explains

why

the

why

Claims

satisfy

Claim

fact-pleading

the

Eight

One,

Two,

standards

Three,

fact-pleading

cannot

be

of

Four,

standard.

asserted

in

a

habeas proceeding.

A.

Habeas Corpus Rule 2(c)

Under

pleading

Rule

2(c),

requirements."

"[h]abeas

petitions

McFarland v.

must

Scott,

meet

512

U.S.

heightened

849,

856

(1994) (citing 28 U.S.C.

§ 2254 Rule 2(c)).

While complaints in a

civil case must contain only "a

short and plain statement of the

claim

is

showing

Civ.

P.

grounds
facts

8(a),
for

pleader

petitions

relief

habeas

'notice

1265

the

for

available

(11th

petitions must

pleading.'"

Cir.

entitled

habeas
to

the

supporting each ground."

words,
to

that

to

corpus

relief,"

must

petitioner"

Habeas

Corpus

"specify

and

Rule

2.

v.

2014) (internal

GDCP

Warden,

quotation

marks

the

In other
as

759

R.

all

"state

contain "'fact pleading'

Hittson

Fed.

opposed

F.3d

and

1210,

citations

omitted).

The model form made available to prisoners seeking to file a

petition
states,

stresses

the

fact

pleading

requirement.

The

form

in boldface:

(9) CAUTION: You must include in this petition all the
grounds for relief from the conviction or sentence that you
challenge.
And you must state the facts that support each
ground.
If you fail to set forth all the grounds in this
petition, you may be barred from presenting additional
grounds on a later date.
Petition for Relief From a Conviction or Sentence by a Person in

State

Custody,

(emphasis

petitioner,

in

Habeas

Corpus

original) .

Rules,

Any

Forms

App.,

petitioner,

even

28

U.S.C,

a

pro

se

is therefore put on ample notice that facts must be

used to support his petition.
810

(11th Cir.

the

§ 2254

2011)(

Rules

"If,

See Borden v. Allen, 646 F.3d 785,

for example,

Rule 2(c)(1)

should cause a petitioner

doubt what the words

(or his

'specify all grounds' and

and

(2)

of

counsel)

to

'state the facts

supporting each ground'
(9) of the

The

'Instructions'

purpose

of

civil plaintiffs,
has

access

supporting
them

to,

afterward."
at

the CAUTION contained in paragraph

should remove such doubt.").

fact

pleading

evidence

two-fold.

necessary

collateral

claim;

course

the

the

is

First,

unlike

"the habeas petitioner ordinarily possesses or
the

his

during

F.3d

mean,

Hittson,

810).

of

759

unlike

1265
a

establish

the

necessarily became

criminal

F.3d at

Thus,

he

to

prosecution

n.63

civil

facts

aware

or

sometime

(quoting Borden,
plaintiff,

of

a

646

habeas

petitioner should be able to state the facts supporting his claim
with relative precision and without any need for discovery.
Borden,

for

a

646

F.

3d at

so-called

810 n.31

fishing

("[A]

habeas

expedition

via

case

is not

discovery,

an

See

a vehicle

effort

to

find evidence to support a claim.").

Second,

fact

pleading

helps

the

district

court

to

comply

with Rule 4's command that it determine whether the petitioner is
not entitled to relief.

fails to allege facts,

plainly appears
not

entitled

to

Mayle,

545 U.S.

at 656.

If a petitioner

the district court cannot determine if "it

from the
relief

petition
from

the

. . . that
district

the petitioner

court."

Id.

at

is
656

(quoting Habeas Corpus Rule 4) (internal quotation marks omitted) .
Thus,

'real

"the petition is

possibility

expected to

of

state

constitutional

Committee's Notes on Habeas Corpus Rule 4
of Maine,

431 F.2d 688,

689

(1st Cir.

facts

that point to

error.'"

a

Advisory

(citing Aubut v. State

1970)).

To properly fact

particularized
relief

for

facts

each

plead,

"a petitioner must

which entitle him or

ground

specified.

These

her

state specific,

to

facts

habeas

must

sufficient detail to enable the court to determine,

of the petition alone,
corpus review."

1990).

consist

from the face

allegations

897 F.2d 332,

which

are

not

334

(8th Cir.

supported

statement of specific facts do not warrant habeas relief."
v. Borg,

24

F.3d 20,

Because

decipher,
cases —
comes

such

26

the

one deficient

from

cited the

(9th Cir.

academic

however,

Hittson

v.

following

are

examines

two

often

James

In

ineffective

difficult

pleadings

and one sufficient.
GDCP.

habeas

counsel

Hittson,

assistance

The deficient
the

of

failed

to

Eleventh

counsel

pursue

claims

"substantial"

be

which

and which

litigated

in

Mr.

have

obvious

state

habeas

conviction counsel unreasonable

Undersigned
belief,

counsel

that

Mr.

Hittson

"some merit"

example
Circuit

claims

avenues

are

available

proceedings

[sic]

represents,

Hittson!s

believes

were

but

to

post

failed to raise them.

upon

original

information
habeas

and

attorneys

performed no investigation beyond the limited investigation
performed by
Mr.
Hittsonfs
trial
attorneys
into
Mr.
Hittson1s background.
In fact,
original habeas counsel
appear to have raised only claims which were apparent from
a

review

the

of

record

the
in

trial
order

transcript,
to

determine

failing
whether

to

look beyond

Mr.

trial attorneys failed to discover, for instance,
and
compelling mitigation
evidence.
Further,

to

from actual

of
investigation,
resulting
in
a
failure
to
raise
meritorious and potentially meritorious claims. Ineffective
Assistance

a

1994).

standards

Court

by

falling below the fact-pleading standard:
[S]tate

of

whether the petition merits further habeas

Adams v. Armontrout,

"Conclusory

corpus

Hittson1s

available
original

as

habeas counsel failed, absent any reasonable explanation,
to bring a claim which was apparent from the record.
Mr. Hittson was Deprived of the Effective Assistance
Counsel Due at Motion For New Trial and Direct Appeal.

of

Mr. Hittson Was Deprived of the Effective Assistance Of
Counsel by His Counsel's Failure to Independently Discover
Exculpatory Material Suppressed by the State.

In
his
motion
for
new
trial
proceeding
and
direct
appeal . . . [c]ounsel failed to fully research, raise,
brief and support with evidence the meritorious claims that
could

and

should

have

occurred during Mr.

759

F.3d

Circuit

at

1264-72.

declared

insufficient

in

been

raised

based

on

the

errors

that

Hittson's capital trial.

In

that:

habeas

rejecting
"such

cases,"

these

claims,

generalized

id.

at

1265;

the

Eleventh

allegations

"[n]owhere

in

are
these

generalized claims does Hittson allege any facts that would allow
a court to find

xthat there is a reasonable probability that,

for counsel's unprofessional errors,
would

have

been

not allege[]

different,'"

id.

the result of the proceeding

at

any facts to support

1271;

and

[Petitioner's]

the

sufficient

example

4:09-cv-00251-KOB-TMP,

2012) .

In

Taylor,

comes

2012

the

WL

district

from

4479151

court

Taylor
(N.D.

claims

v.

Id. at 1265.
Culliver,

Ala.

Sept.

concluded the

"satisfied Rule 2(c)'s threshold requirement."

"did

allegations that

his state habeas counsel were incompetent . . . ."
The

but

Id.

The petition

Ground
III:
The
prosecutor
engaged
in
racial
discrimination in jury selection in violation of Batson v.
476 U.S.

79

(1986).

26,

petitioner

included the following claims:

Kentucky,

No.

Supporting Facts:
The prosecutor used his peremptory
challenges
to
strike
three
of
the
five
available
African-American
jurors
(TR765) .
In
defense
of
his
disproportionate pattern of strikes, the prosecutor offered
pretextual reasons.
As to Jeremiah Turner, the prosecutor
claimed that

the

venire member

stated that he would not go

along with the death penalty
(TR768) .
As
to Beverly
Brewster, the prosecutor claimed that she stated that she
was not for the death penalty and stared out the window,
appearing "flat out bored" (TR769).
These reasons are
contradicted
by
the
record
(Turner:
TR658,
679-680;
Brewster:

TR240,

250,

259,

280) .

Moreover,

the prosecutor

disparately applied his stated concern regarding hesitancy
to impose the death penalty to white and African-American
venire members
567,
573-574,

(see TR393-394, 398, 413, 465, 562-563,
580-581,
659-660,
680-683,
769-771).

566For

example, the prosecutor declined to strike a white venire
member,
whose
responses
actually
indicated
greater
reluctance to impose the death penalty, and other white
venire
members
whose
responses
were
similar
to
the
challenged African-Americans'
(TR398,
413,
562,
566-567,
580-581,
Ground

573-574,
IV:

The

680-683).
trial

court's

restrictions

on

voir

dire

examination of prospective jurors denied Mr. Taylor a fair
trial by an impartial jury and a reliable
sentencing
determination in violation of the Fifth, Sixth, Eighth and
Fourteenth Amendments.

Supporting Facts:
The trial court
failed to
conduct
individual
questioning
of
prospective
jurors.
Such
questioning was essential in this case, where sixty-three
of the seventy-nine potential jurors, eighty percent of the
venire members, had heard about the case through the media
or discussed it with others in the community (see TR233759) .

Ground VIII: The trial court allowed photographs of the
Moores
and
testimony
and
comment
emphasizing
the
photographs' gruesome nature in violation of Mr. Taylor's
rights
to
a
fair
trial
and
a
reliable
sentencing
determination under the Fifth, Sixth, Eighth and Fourteenth
Amendments.

Supporting Facts: During the guilt phase, the trial court
allowed the prosecutor to introduce sixty-seven photographs
of the Moores, eleven taken at the murder scene and fiftysix during their autopsies (State's Exhibits 6-10, 48-51,
59-65, 73-121) . This evidence was wholly irrelevant: There

was no dispute as to the cause of death or nature of the
injuries and, before the penalty phase hearing, the defense
stipulated to the aggravating circumstance that the crime
was especially heinous, atrocious, or cruel.
During
the
medical
examiner's
trial
testimony,
he
remarked on the photograph's gruesome nature and described
each one in discussing the autopsy procedure, including the
external examination, weighing, cleaning, evisceration of
the abdomen and chest, cutting and peeling back of the
scalp, sawing and removing the skull cap and brain.
The
jurors
examined
each
photograph
(TR985-1005).
The
prosecutor
referred
to
the
photographs
as
"horrible"
(TR798),
"gruesome"
(TR341,
404,
672),
"bloody"
(TR404,
672), and "as gory or gross as anything you'll ever see in
any horror movie"
(TR277),
and encouraged the jury to
examine them again during its deliberations (TR1112-1113,
1123,

1135-1136).

During the penalty phase, the prosecutor told the jury
that he would not exhibit the photographs again: "I've got
a hunch that
you will
probably carry them with
you
throughout the rest of your life.
There's nothing in the
world that can ever wipe off or wipe out of your minds the
faces

and

violent

deaths

of

Ernie

and

Lucille

Moore"

(TR1350-1351).

Pet.

for Habeas Corpus,
The

differences

Taylor petition,
claim
names,

and

is

in

unlike
out

statistics,

petitioner
which,

lays

4:09-cv-00251-KOB-TMP,

a

the

petitions

detailed

factual

testimony

entitled to

relief.

obligatory,

a

preliminary

clear

picture

judgment

constitutional

error"

that

about
exists.

It

basis
show

obvious.

states
for

also

The

each

legal

it.

It

court

the

why

uses

evidence that

pleading fact, not merely opinion.

paints

to

1.

are

the Hittson petition,

and

although not

two

Doc.

record

uses
the

cites,

the petitioner is

In short, the Taylor petition

allows

whether

the
"a

court

real

to

make

possibility

a
of

B.

Petitioner's

The

is

Court

Petition

must

now

determine

whether

Petitioner's

petition

sufficiently well plead to survive the Court's initial Rule 4

review.

The

Court

addresses

claims

One

through

Seven to

explain

why each claim meets or fails to meet the fact pleading standard.
It

then

entitle

1.

addresses
Petitioner

Claim

Claim
to

His

Eighth,

Constitution,

Related

explains

why

it

does

not

relief.

first

Right

Trial And On Appeal,
Sixth,

and

1

Petitioner's

Deprived Of

Eight

And

claim

To The

states

that

"Petitioner

Effective Assistance

Of

Was

Counsel At

In Violation Of His Rights Under The Fifth,
Fourteenth

Strickland v.

Precedent."

(Doc.

Amendments

Washington,

1 at

3. )

To

The

466 U.S.

In

support

United

668

of

States

(1984),

this

And

claim,

Petitioner makes several allegations including:

Trial counsel failed to conduct an adequate pretrial
investigation into the State's case and defenses available
to Petitioner at trial, including medical, psychological,
psychiatric,
and
other
defenses
affecting
Petitioner's
mental state before, during, and after his participation in
the crimes for which he was charged.
(Id. SI 12 (a) )
Counsel
witnesses

failed
to
numerous

locate,
interview,
individuals
who

and
had

present
as
compelling

mitigating evidence regarding Petitioner, including but not
limited to, evidence regarding Petitioner's background, his
interactions with the victim on the day of the crime, and
his ability to adapt to and contribute to the safety of a
prison environment.

Counsel
admission

failed to
of

(Id. St 12(h))

adequately object to

statements

and

evidence

and litigate the
obtained

from

Petitioner's person and dwelling prior to law enforcement's
obtaining
Petitioner's
consent
and
prior
to
law

enforcement's

advising

Miranda v. Arizona,

Petitioner

384 U.S.

of

his

436 (1966).

rights

(Id.

under

St 12 (n) )

Counsel failed to object to the admission of several
items of evidence and testimony offered by the State during
the trial and permitted the jury to receive and consider
evidence
that
was
improper,
inadmissible,
prejudicial,
irrelevant, and/or false;
(Id. St 12 (ff) )
These

allegations

Claim One.

are

representative

of

all

the

allegations

in

They are also the definition of conclusory and do not

meet the fact pleading requirements of Rule 2(c).

To
to

properly

the

law.

Corpus

Rule

fact

plead,

Advisory Committee's

2

("[I]t

is

the

claims that is important.").
of

counsel,

petitioners

a

petitioner

must

Notes

on

relationship

connect

Subd.

of

(c)

the

the
of

facts
Habeas

facts

to

the

To establish ineffective assistance

must

show

that

his

counsel's

conduct

"'fell below an objective standard of reasonableness,'" and that,
"'but

for

counsel's

unprofessional

errors,

proceeding would have been different.'"

give

"a

strong presumption that

result

Hittson,

(quoting Strickland, 466 U.S. at 688, 694).
must

the

of

the

759 at 1262

Additionally, courts

counsel's

conduct

falls

within the wide range of reasonable professional assistance," and

for a petitioner to overcome that presumption, he must "establish
that no competent counsel would have taken the action that his

counsel did take."

IcL_ at 1263

citations

Petitioner,

omitted).

(internal quotation marks and
therefore,

must

plead specific

facts that demonstrate why his counsel's actions fell below the

objective standard of reasonableness and why the outcome would

10

have been different absent the alleged error.

He cannot merely

allege that counsel should have done things differently.
("With unlimited time and the benefit of hindsight,
can

come

up

ineffective

with

assistance

any

number

claims

of

that

a petitioner

potentially

he

now

wished

See id.

meritorious

his

collateral

counsel had raised.").

Petitioner

facts.

In

facts

the

why

what

made

an

have

changed

investigate,
how

what

that

or

the

were

how

have

to evidence admitted at trial,

Petitioner failed to "state specific,

specified."
The

Adams,

Court

objected

corpus

elements

of

would

no

counsel

they

facts

failed

to

the

trial.

And

he

to

the

or why his

admitted

evidence.

particularized facts

relief

for

each

ground

897 F.2d at 334.

stresses

that

Petitioner

that he i_s entitled to habeas relief.
possibility

had

states

what that evidence was,

habeas

was

failed to adequately object

Thus,

[him]

found

no

they would have provided,

counsel

entitle

have

states

information

trial

trial

which

should

have

He

affected

showing how counsel

specific

investigation

that

trial.

that

any

Petitioner

would

mitigating evidence
would

with

pretrial

counsel

of

law

above,

counsel's

witnesses

evidence

states no facts

his

result

the

the

described

investigation,

the

who

connect

information

adequate

detailing

to

examples

explaining

inadequate,

or

failed

constitutional

11

not

have

to

prove

He must only prove "a real

error,"

of each claim might be met.

does

i.e.,

that

Petitioner,

the

legal

however,

can

only

prove

a

Unfortunately,

standard.
2.

real

Petitioner's

Thus,

Team

second
And

Constitutional

Violation
The

1

at

using

claim has

real

not met

facts.

this minimum

Claim Two

Prosecution

To

first

by

the Court DISMISSES Claim One of his petition.

Petitioner's

His

possibility

Of

The

United

17.)

allegations,

Other

Rights

Fifth,

States

In

claim

alleges

State

To

Due

Sixth,

Agents

Eight,

of

Claim

2,

"Misconduct

Deprived

Process

Constitution And

support

that

And

And

A

By

The

Petitioner

Fair

Trial,

Related

Precedent."

Petitioner

makes

(Doc.

several

including the following:

suppressed evidence undermines confidence in the outcome of
the guilt/innocence and penalty phases of Petitioner's
trial and Petitioner's direct appeal, in violation of Brady
v. Maryland,
373 U.S. 83, 84-86 (1963), and Kyles v.
Whitley, 514 U.S. 419, 432-38 (1995).
(IdL_ 1 20)
The State elicited false and/or misleading testimony from
State
witnesses
at
trial,
in
violation
of
Napue
v.

Illinois, 360 U.S. 264, 269 (1959) and in contravention of
Petitioner's rights under Mooney v. Holohan, 294 U.S. 103,
112-13
(1935).
The
State
knowingly
or
negligently

presented
false
testimony
in
pretrial
and
trial
proceedings, and there is a reasonable likelihood that the
false testimony affected the judgment of the trial

court

and/or the jury at both phases of the trial.
See United
States v. Agurs, 427 U.S. 97, 103 (1976).
The misconduct
the

State

includes,

but

is

not

limited

to,

mischaracterizing
mitigating
evidence
to
the
jury,
misrepresenting and exaggerating aggravating evidence or
lack thereof, making wholly unsupported, impermissible and
inflammatory future dangerousness arguments, and failing to

produce Mr. Arrington Brady and Giglio evidence regarding
the State's witnesses, including James Griffin.

12

In

Fourteenth Amendments

The State suppressed information favorable to the defense
at both phases of the trial.
The materiality of the

of

Of

(Id. 1 24)

During voir dire,
the prosecution improperly used its
peremptory strikes to systematically exclude jurors on the
basis of race and/or gender.
See J.E.B. v. Alabama ex.
rel. T.B., 511 U.S. 127, 130-31 (1994); Batson v. Kentucky,
476 U.S.

79,

84

(1986).

(IcL

St 25)

The jury bailiffs and/or sheriff's deputies and/or other
court personnel
and State agents who
interacted with
jurors,
including
the
judge,
engaged
in
improper
communications with jurors which deprived Petitioner of a
fair trial and reliable sentencing.

Like

Petitioner's

allegations

are

allegations

conclusory,

in

(Id. 1 29)

Claim

One,

and Petitioner

however,

has

these

failed to plead

specific and particular facts.
Petitioner

states

no

facts

detailing

the

favorable

information suppressed by the State; the false testimony elicited
by the State; or the false testimony presented by the State.

Nor

does Petitioner state facts explaining why the materiality of the
evidence undermines the outcome of

improperly

used

communications

Indeed,

its

peremptory

occurred

Petitioner

the case;

does

between

not

strikes;
court

even

how the prosecution

or

personnel

allege

which

what
and

improper
the

court

jury.

personnel

engaged in the improper communications: "The jury bailiffs and/or
sheriff's deputies and/or other court personnel.

. . ." (emphasis

added).

cannot

Without

fact-pleading

these

facts,

requirements

of

the

Petitioner

Rule

2(c).

Thus,

meet

the

the

Court

DISMISSES Claim Two.
3.

Claim Three

Petitioner's third claim states that "Misconduct On The Part

Of

The

Jurors

Violated

Petitioner's
13

Rights

Under

The

Fifth,

Sixth,

Eight,

And

Fourteenth

Amendments

Constitution And Related Precedent."

To

(Doc.

The

United

1 at 21.)

States

Petitioner

supports his claim with a single paragraph allegation:
Misconduct on the part of the jurors included, but was
not
limited
to,
improper
consideration
of
matters
extraneous to the trial, improper racial attitudes which
infected the deliberations of the jury, false or misleading

responses of jurors on voir dire,
which

infected

their

improper biases of jurors

deliberations,

improper

exposure

to

the
prejudicial
opinions
of
third
parties,
improper
communications with third parties, improper communications
with jury bailiffs, improper ex parte communications with
the
trial
judge,
and
improper
prejudging
of
the
guilt/innocence and penalty phases of Petitioner's trial.
(Id.

1

32)

Petitioner's

to meet

Rule

Claim Three,

2(c)'s

like

the

claims

before

fact-pleading requirement.

it,

fails

Petitioner does

allege which jurors committed misconduct, how he came to discover
the misconduct,

were.

or what

the

specific details

of

the

misconduct

Nor does he allege what specific improper biases infected

jury deliberations; what false or misleading responses were made
on

voir

dire;

or

what

improper

jurors and third parties.

communications

These facts, however, are required by

Rule 2(c)'s fact-pleading standard.
the

Court

frivolous.

to

determine

occurred between

whether

They are also necessary for
Petitioner's

petition

is

Because Petitioner has failed to include any specific

or particularized facts, the Court DISMISSES Claim Three.
4.

Claim Four

Petitioner's

fourth

claim

states

that

"The

Trial

Court's

Improper Rulings And Other Errors Deprived Petitioner Of A Fair

14

Trial And Reliable Sentencing In Violation Of The Fourth,

Fifth,

Sixth,

States

Eight,

And

Fourteenth

Amendments

Constitution And Related Precedent."

To

(Doc.

The

United

1 at 22.)

Petitioner

alleges the following errors:

Failing

to

provide

adequate

funding

trial counsel to marshal a defense.

and

(Id.

time

to

allow

St 35(b))

Failing to strike for cause several venirepersons whose
attitudes towards the death penalty would have prevented or
substantially impaired their performance as jurors.
The
trial court erred by phrasing its voir dire questions in a
manner which suggested to jurors who gave neutral responses
that they were or should be in favor of the death penalty.
The court erred in its rulings on motions to challenge
prospective jurors for cause based on their attitudes about
the death penalty and stated biases, engaged in improper
voir dire,
and allowed fair and impartial jurors to be
struck for cause.

(Id.

SI 35(d))

Allowing
the
State
to
introduce
illegally
and
unconstitutionally obtained statements and evidence, which
should have been suppressed.

Failing
(Id.

to

allow

into

(Id. St 35(e))

the

record

admissible

evidence.

SI 35(o) )

Failing to possess and employ an accurate and proper
understanding of the law, including but not limited to,
what constitutes mitigating evidence and what constitutes
aggravating evidence; the duties of counsel under Wiggins
v. Smith, 539 U.S. 510 (2003); and the defendant's right to
solicit and utilize relevant experts' opinions under Ake v.
Oklahoma, 470 U.S. 68 (1985).
(Id^_ SI 35(y))

Impermissibly injecting argument during the testimony of
witnesses and questioning witnesses regarding improper and
prejudicial subjects.
(Id. SI 35 (gg) )
Petitioner's

fourth

claim

requirements of Rule 2(c).

fails

to

meet

the

fact-pleading

Petitioner states no facts about what

funding the Court provided, what funding Petitioner requested, or

why

the

lack

of

funding

created
15

a constitutional

violation.

Additionally,

Petitioner

gives

no

facts

court should have struck for cause,
them to

in

be

struck for cause,

"improper

admissible

voir

dire."

evidence

failed to

or

understand the

Rule

4

or

fact-pleading
DISMISSES

5.

determination,

requirements

the

been

Petitioner

admitted,

what

injected into witness testimony.
Court's

jurors

the

what they said that required

does

have

law,

which

how the judge otherwise engaged

Nor

should

about

argument

state

what

the

judge

how

he

impermissibly

Such facts are critical to the

and

of

their

Rule

exclusion

2(c).

violates

Thus,

the

the

Court

Claim Four.

Claim Five

Petitioner's

fifth

Conviction

And

Fourteenth

Amendments

Portions

Of

Sentence

The

claim

Violate

To

The

Georgia

states

The

U.S.

Fifth,

"Petitioner's

Sixth,

Constitution

Constitution

Materially Misleading Evidence."

that

(Doc.

Because

Eighth,

And

Analogous

They

1 at 30.)

And

Rely

Petitioner's

sole allegation in support of this claim states:
Petitioner's

sentence

is

based

on

materially

inaccurate

evidence, including but not limited to, the allegation that
Petitioner posed a threat of future danger in prison, which
influenced
the
jury's
decision-making
in
both
the

guilt/innocence and sentencing phase of Petitioner's trial.
The fact that the jury heard such evidence and was urged to
consider

it

Petitioner's

in

their

rights

under

deliberations

both

the

is

Georgia

violative

and

the

of

U.S.

Constitutions because it renders the proceedings against
him unreliable.
Johnson v. Mississippi,
486 U.S.
578

(1988).

Further,

the

jurors'

consideration of

inaccurate

evidence heightened the risk that the death sentence in
this matter
was
imposed arbitrarily.
Id.
at
587.
Petitioner's
of

conviction and sentence cannot

such evidence.

16

On

stand in light

(Id.

at

St

38.)

Once

specific facts.

again,

however,

Petitioner

fails

to

Petitioner states that his sentence was based on

"materially inaccurate evidence" but makes no mention,

other than

that he was accused of posing a future danger in prison,

the inaccurate evidence was,
his

sentence

conclusory
pleading

plead

was

based

allegations

requirement.

why it was materially false,

on

do

of what

that

not

Thus,

evidence.

comply
the

Such

with

Court

Rule

or how

vague

2(c)'s

DISMISSES

and

fact-

Petitioner's

Claim Five.

6.

Claim Six

Petitioner's

sixth

claim

states

that

"Petitioner

Was

Denied

Due Process Of Law By The Instructions Given To The Jury At Both

Phases

Of His

Eighth,

Capital Trial,

And

Fourteenth

In Violation Of

Amendments

To

The

The

Fifth,

United

Constitution And Related Precedent."

(Doc.

of

jury instructions

this

claim,

Petitioner

cites

the

Sixth,

1 at 31.)

States

In support

given

the trial judge as well as the case law supporting his claim.
also

makes

several

instructions

concludes

could

that

other

this

cites

violated

have

record

the

claim pled

Claim

Was

facts

to

how

The

He
the

Court

survive the

Thus, Claim Six may proceed.

Seven

Petitioner's

Sentence

demonstrate

Constitution.

sufficient

Rule 2(c) fact-pleading standard.
7.

that

by

seventh

Imposed

claim

states

Arbitrarily

17

And

that

"Petitioner's

Disproportionately

Death

And

Amounts

To

Under The
United

38.)

Cruel

Fifth,

States

And

Unusual

Sixth,

Violating

His

Rights

Eighth And Fourteenth Amendments

Constitution

Petitioner

Punishment,

offers

And

in

Related

support

of

Precedent."

this

To

(Doc.

claim the

The
1

at

following

allegations:

Georgia's statutory death penalty procedures, as applied,
do not result in fair, nondiscriminatory, or proportional
imposition of the death penalty, and therefore violate the

Eighth
(Id.

Amendment

to

the

United

States

Constitution.

St 44(a) )

The death penalty is imposed arbitrarily, capriciously,
and discriminatorily in the State of Georgia, and was so
imposed in Petitioner's case.
(Id. SI 44(b))

Georgia
cases similar to that of Petitioner's with
regards to both the nature and circumstances of the
offense, prior record, culpability and life and character
of the
death.

accused, have
(Id^ SI 44 (d) )

resulted

in

lesser

punishments

than

Georgia cases more aggravated than that of Petitioner's
with regards to both the nature and circumstances of the
offense, prior record, culpability, and life and character
of the
death.

accused, have
(Id^ SI 44 (e) )

There

exists

in

resulted

Georgia

prosecuting authorities,
on the
whether

in

a

lesser

pattern

courts,

punishments

and

than

practice

of

and juries discriminating

basis of race, gender, and poverty in deciding
to seek or impose the death penalty in cases

similar

to

that

of

Petitioner's,

thereby

making

the

imposition of the sentence of death against Petitioner a
violation of his rights under the Fifth, Sixth, Eighth, and
Fourteenth
(Id.

Once

pleading

Amendments

to

the

United

States

Constitution.

SI 44(h) )

again,

Petitioner's

requirements

allegations

raising

of

Rule

serious

claim fails

2(c).

questions

to

meet

Petitioner
of bias

on

the

fact-

makes

broad

a statewide

level, but Petitioner offers no facts to support his allegations.
18

The

Court

case,

needs

why

different

what

cases

cases

were

outcome

shows

the

The

Court

alleges

practice of
damning

know

those

capricious.

Petitioner

to

that

were

similar,

Georgia

must

also

"there

have met the

without

on

in

is
what

Georgia

Petitioner's

Petitioner's

arbitrary
factual

a

and

basis

pattern

and

Petitioner cannot launch such
factual

support

fact pleading requirement of

Court DISMSISSES

to

why

system

exists

any

and

know

. . . discrimination."

allegations

similar

Rule

and

expect

2(c).

Thus,

to

the

Claim Seven.

8. Claim Eight
Petitioner's

final

claim

states

that

"The

Execution

Of

Petitioner By Lethal Injection,

And As Implemented By The Georgia

Department

Cruel

Violation

Of

Of

Corrections,

His

Rights

Is

Under

The

Fourteenth Amendments To The U.S.

Petitioner's

claim,

habeas proceeding.

however,

govern

727 F.3d

the

punishment.
conditions

of

Fifth,

is

not

Punishment

Sixth,

cognizable

Eighth,

(Doc.

in

In

And

1 at 4 5.)

a

federal

Habeas cases govern the constitutionality of

1334,

circumstances

Id.

Unusual

Constitution."

a prisoner's conviction or sentence.
of Corr.,

And

1344

of

Because

confinement,

and

McNabb v. Comm'r Ala. Dept.

(11th Cir.

confinement

execution
not

the

2013).

or

They

do not

imposition

procedures

go

to

constitutionality of

of

the
the

conviction, the Eleventh Circuit has instructed that "[a] § 1983
lawsuit, not a habeas proceeding, is the proper way to challenge

lethal injection procedures/'

Id. ; see also Tompkins v.
19

Sec'y,

Dep't.

of

Corr.,

557

F.3d

1257,

1261

(11th

Cir.

2009).

Petitioner's claim challenges the lethal injection procedure,

the

constitutionality

of

his

conviction.

Thus,

the

not

Court

DISMISSES Claim Eight.
III.

Conclusion

"The role of federal habeas proceedings,
assuring
and

that

constitutional

limited."

Barefoot

"Federal

courts

trials,"

and

defendant

Thus,

are

federal

v.

not

rights
Estelle,

forums

habeas

in

review

are

observed,

463

U.S.

which

is

while important in

not

to

"a

is

880,

secondary

887

(1983).

relitigate

means

by which

is entitled to delay an execution indefinitely."

"[t]he

procedures

adopted

to

facilitate

state

the

a

Id.

orderly

consideration and disposition of habeas petitions are not legal
entitlements that a defendant has a right to pursue irrespective

of

the

contribution

constitution error."

these
Id.

procedures

make

toward

uncovering

at 887-88.

An important part of the "procedures adopted to facilitate
the orderly consideration and disposition of habeas petitions" is

the

fact-pleading

facilitates

the

requirement

expeditious

Mayle, 545 U.S. at 655-56.

of

review

Rule
of

2(c).
habeas

Fact

pleading

petitions.

See

It ensures that the petitioner will

give the court the meat of his argument up front so that the
court can quickly separate the wheat from the chaff.
in turn,

ensures

that

the

Court

can

quickly

Id.

This,

provide

either

finality to the state court decision or relief to the wronged
20

petitioner.

Thus,

when

petitioners

fail

to

fact

plead,

they

hinder the Court's ability to efficiently review habeas petitions

and diminish its capacity to provide swift relief to those claims
which might be meritorious.
1924,

1942-43

See McQuiggin v.

(2013) (Scalia,

J.,

Perkins,

dissenting) ("[F]loods

133

S.Ct.

of

stale

frivolous and repetitious petitions inundate the docket of lower
courts and swell our own .... It must prejudice the occasional

meritorious applicant to be buried in a flood of worthless ones."
(internal

citations

justice,

omitted)).

in addition to the

Habeas Corpus,

Therefore,

commands

set

for

the

forth in the

sake

of

Rules

of

courts cannot allow to proceed petitions that fail

to make a factually specific claim for relief.
The

Court

concludes

that

almost

all

of

Petitioner's

suffer from a deficiency of facts and must be dismissed.

claims

Thus,

after reviewing the Petitioner's petition in accordance with Rule
4,

the Court DISMISSES WITHOUT PREJUDICE Claims One,

Four,

Five,

and Seven of Petitioner's

meet the fact-pleading requirements
(Doc.
he

1.)

requirements
merits.

(Doc.

Three,

for failure to

of Federal Habeas Rule 2.

If Petitioner chooses to refile any of these claims,

is warned that

because

petition

Two,

of Rule

Next,
it

1.)

a second failure to

is

2(c)

will

result

follow the

fact pleading

in a dismissal

on the

the Court DISMISSES WITH PREJUDICE Claim Eight
not

Finally,

a

cognizable

claim

in

habeas

proceedings.

the Court requires no action by Respondents

21

with

regard

to

Claim

Six

because

Respondents

have

already

voluntarily filed an answer in this case.

ORDER ENTERED
September,

at Augusta,

Georgia,

this _/^; day of

2017.

J.

RANDAL

HALL

UNITED feTATES DISTRICT JUDGE

IsOUTHElW DISTRICT OF GEORGIA

22