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)

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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

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