Tanksley v. Fort

Filing 36

REPORT AND RECOMMENDATION that Petitioner's 15 Amended Petition for Writ of Habeas Corpus be denied, this civil action be closed, and a final judgment be entered in favor of Respondent. Objections to R&R due by 5/28/2024. Signed by Magistrate Judge Brian K. Epps on 5/10/2024. (gmh) Modified on 5/10/2024 (cmr).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
JORDASH TANKSLEY,
Petitioner,
v.
INTERIM WARDEN J. KEVIN PERRY,
Respondent.

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CV 123-029

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner, an inmate at Augusta State Medical Prison in Grovetown, Georgia, brings
the above-captioned petition pursuant to 28 U.S.C. § 2254. Having considered all the relevant
pleadings, for the reasons set forth below, the Court REPORTS and RECOMMENDS
Petitioner’s § 2254 petition be DENIED, this civil action be CLOSED, and a final judgment
be ENTERED in favor of Respondent.
I.

BACKGROUND
On September 9, 2008, Petitioner was found guilty by a jury in the Superior Court of

Richmond County of burglary, armed robbery, aggravated assault, and possession of a firearm
during a felony. (See generally doc. no. 15); Richmond County Clerk of Court Web Docket,
available at https://cocaugustaga.gov/mainpage.aspx (follow “Criminal Search” hyperlink;
then search for “Tanksley, Jordash,” open 2007RCCR01404, last visited May 10, 2024)

(“hereinafter Richmond County Docket”). 1 He was sentenced to life in prison without parole
plus forty-five years. (Doc. no. 15, p. 1.)
On October 12, 2008, October 5, 2009, and May 18, 2012, Petitioner filed motions for
a new trial, which were collectively denied on May 24, 2012. See Richmond County Docket.
On September 14, 2012, Petitioner appealed the collective ruling to the Georgia Court of
Appeals, arguing that the trial court: (1) improperly instructed a state witness; (2) erred in
charging the jury; and (3) improperly sentenced him as a recidivist without proper evidence of
his prior convictions. (See generally doc. no. 15); Tanksley v. State, 743 S.E.2d 585, 587 (Ga.
Ct. App. May 29, 2013), cert denied (Nov. 18, 2013). On May 29, 2013, the Georgia Court of
Appeals denied Petitioner’s appeal as to grounds one and two and affirmed his conviction, but
vacated his sentence and remanded the case to the trial court for resentencing based on ground
three. Tanksley, 743 S.E.2d at 591.
The court provided four reasons why ground one failed, as follows:
First, the import of the trial court’s instruction was that McNair not “lie today
in [his] testimony” and not that he was required to repeat his previous testimony.
Second, the transcript does not show that the trial court abused McNair or treated
him in an improper manner. Although McNair had been granted immunity for
his testimony, he could “nevertheless be prosecuted or subjected to penalty or
forfeiture for any perjury, false swearing, or contempt committed in testifying
or failing to testify.” OCGA § 24-9-28 (2008). Thus, the trial court warned
McNair against lying in the context of properly informing McNair that the grant
of immunity did not extend to giving false testimony. The trial court's statement
that McNair would be in “trouble for last time” if he had given false testimony
in the first trial may have gone a little too far in that it implied, perhaps, that
McNair’s truthful testimony in Tanksley’s trial could be used against him
notwithstanding the grant of immunity, but the trial court's statement fell short
of the threatening remarks to a witness which were found to violate the
defendant’s right to due process in [Webb v. Texas, 409 U.S. 95 (1972) (per
curiam)]. . . .

United States v. Jones, 29 F.3d 1549, 1553 (11th Cir. 1994) (noting court may take judicial notice
of another court’s records to establish existence of ongoing litigation and related filings).
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Third, under Webb, “judicial or prosecutorial intimidation that dissuades a
potential defense witness from testifying for the defense can, under certain
circumstances, violate the defendant's right to present a defense.” (Citation and
footnote omitted.) Terry, 308 Ga. App. at 426. Here, however, the alleged
intimidation did not dissuade a defense witness from testifying. Accordingly,
Tanksley was not denied “the right to present his own witnesses to establish a
defense.” Webb, 409 U.S. at 98
Lastly, to the extent Tanksley infers that his right to due process of law was
denied by the trial court’s admonishment of McNair, we disagree. Due process
guarantees that a criminal defendant will be treated with that fundamental
fairness essential to the very concept of justice. In order to declare a denial of
it a court must find that the absence of that fairness fatally infected the trial; the
acts complained of must be of such quality as necessarily prevents a fair trial.
(Citation and punctuation omitted.) Terry, 308 Ga. App. at 427. See Frei v.
State, 252 Ga. App. 535, 535-536 (1) (557 SE2d 49) (2001) (notwithstanding
allegation that trial court intimidated witnesses and bullied trial counsel,
appellant did not receive an unfair trial). Tanksley was free to explore on crossexamination the possibility that McNair interpreted the trial court’s statements
as directing him not to change his previous testimony, and he did so. We
conclude that the trial court’s instructions to McNair did not deprive Tanksley
of a fair trial, nor did the trial court err in admonishing McNair not to lie in
giving his testimony.
Tanksley, 743 S.E.2d at 588-89. The Georgia Supreme Court denied certiorari on November
18, 2013. Id. at 585.
Upon resentencing in the trial court on December 30, 2014, the state provided certified
copies of Petitioner’s previous felony convictions in accordance with the appellate court’s
decision, thus, perfecting the record. (Doc. no. 15, p. 6); see also Richmond County Docket.
The trial court reinstated Petitioner’s previous sentence. (See id.) Petitioner filed another
motion for new trial on January 23, 2015, the trial court held a hearing on March 6, 2018, and
Petitioner amended the motion on December 12, 2018. See Richmond County Docket. The
trial court denied the motion on April 23, 2020. Id.
On May 25, 2021, Petitioner appealed the denial of his motion on four grounds: (1) the
state failed to perfect the record; (2) the resentencing violated the rule of lenity due to
ambiguity in Georgia sentencing statutes O.C.G.A. §§ 17-10-7(a)-(c); (3) the resentencing
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violated the Double Jeopardy Clause and was void as a matter of law; and (4) the resentencing
violated his right to due process because the State failed to provide certified copies of his prior
convictions before the resentencing hearing. (Doc. no. 15, p. 3); Tanksley v. State, 870 S.E.2d
92, 93-96 (Ga. Ct. App. Feb. 24, 2022). On February 24, 2022, the Georgia Court of Appeals
affirmed denial of Petitioner’s motion for a new trial. Tanksley, 870 S.E.2d at 92. Petitioner
did not appeal this ruling to the Georgia Supreme Court or United States Supreme Court. (See
generally doc. no. 15.) Petitioner has not filed a state habeas corpus petition. (See generally
id.; doc. no. 18, p. 6); see also Richmond County Docket.
On September 29, 2023, Petitioner filed the instant § 2254 habeas petition. (Doc. no.
15.) Petitioner asserts three grounds:
(1) the trial court improperly instructed the state’s witness to repeat
testimony or risk perjury;
(2) violation of the Sixth Amendment right to a speedy trial; and
(3) violation of the Double Jeopardy clause when Petitioner was
resentenced based on his two prior felony convictions due to the Rule of
Lenity.
(Id. at 5-11.) Petitioner admits Ground Two was not presented in any of his state court appeals
and claims it was because trial counsel “didn’t raise [the] argument before trial to place on
record.” (Id. at 9, 14.)
October 25, 2023, Respondent filed an answer and a motion to dismiss for exhaustion.
(Doc. nos. 17-18.) On December 29, 2023, the Court entered a Report and Recommendation
(“R&R”) granting Respondent’s motion to dismiss Grounds Two and Three for failure to
exhaust, and ordering Petitioner to: (1) dismiss the petition in its entirety so that he may present
to the state habeas court his unexhausted claims; or (2) notify the Court of his preference to
proceed in this Court only with respect to his exhausted claim in Ground One. (Doc. no. 21.)
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On January 2, 2024, Petitioner attempted to choose both options, (doc. no. 23), and on January
25, 2024, United States District Judge J. Randal Hall adopted the R&R and again directed
Petitioner to make a singular election as to his decision to proceed, (doc. no. 27). On February
5, 2024, Petitioner elected to proceed in this Court with respect to Ground One, (doc. no. 28),
and the Court directed Respondent to respond to the allegations of Ground One, (doc. no. 29).
On April 2, 2024, Petitioner filed his brief as to Ground One. (Doc. no. 30.) Petitioner
reiterates his prior arguments, contending the trial court erred when instructing McNair, the
state’s witness, to “repeat his previous testimony or be charged with perjury.” (Id. at 1.)
Moreover, Petitioner asserts McNair should not have been allowed to use a prior transcript to
refresh his testimony, and the threat of perjury should be considered a threat in light of Webb
v. Texas, 409 U.S. 95 (1972). (Id. at 2, 5-7.) Based upon the trial court’s improper intimidation
of McNair, Petitioner argues he is entitled to a new trial. (Id. at 7.) In his brief, Petitioner
never once mentions the trial record, nor does he discuss the Georgia Court of Appeals’
decision as to Ground One. (See generally id.)
On April 12, 2024, Respondent filed his brief and accompanying exhibits. (Doc. nos.
33-35.) Respondent contends the state appellate court’s decision as to Ground One merits
deference, as the court found Petitioner’s claim lacked merit after a thorough discussion of
Georgia law and application of the facts under Webb. (Doc. no. 33, pp. 7-8.) Respondent
further argues Petitioner has not shown the court’s decision is contrary to or an unreasonable
application of the law as set forth in Webb, nor is it based on an unreasonable determination
of the facts; thus, Petitioner has not met his burden. (Id. at 9-10.)
II.

STANDARD OF REVIEW
Under § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”):
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An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted with
respect to any claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
The United States Supreme Court has characterized § 2254(d) as “part of the basic structure
of federal habeas jurisdiction, designed to confirm that state courts are the principal forum for
asserting constitutional challenges to state convictions.” Harrington v. Richter, 562 U.S. 86,
103 (2011). Accordingly, § 2254(d) creates a “difficult to meet and highly deferential standard
for evaluating state-court rulings, which demands that state-court decisions be given the benefit
of the doubt.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (citations omitted).
In Brown v. Payton, 544 U.S. 133, 141 (2005), the Supreme Court explained the
difference between the “contrary to” and “unreasonable application” clauses in § 2254(d)(1)
as follows:
A state-court decision is contrary to this Court’s clearly established precedents
if it applies a rule that contradicts the governing law set forth in our cases, or if
it confronts a set of facts that is materially indistinguishable from a decision of
this Court but reaches a different result. A state-court decision involves an
unreasonable application of this Court’s clearly established precedents if the
state court applies this Court’s precedents to the facts in an objectively
unreasonable manner.
Id. (internal citations omitted). Thus, under § 2254(d)(1), it is not enough to demonstrate that
a state court’s decision is wrong; “even clear error will not suffice.” White v. Woodall, 572
U.S. 415, 134 S. Ct. 1697, 1702 (2014). Rather, the habeas petition must show the state court
decision was “objectively unreasonable.” Wiggins v. Smith, 539 U.S. 510, 520-21 (2003); see
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also Woods v. Donald, 575 U.S.-, 135 S. Ct. 1372, 1376 (2015) (a petitioner must show the
state court’s ruling “was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fair-minded disagreement.”). A
showing that the state court’s determination was unreasonable is a substantially higher
threshold than whether it was correct. Reed v. Sec’y, Fla. Dep’t of Corr., 767 F.3d 1252, 126061 (11th Cir. 2014); Evans v. Sec’y, Dep’t of Corr., 703 F.3d 1316, 1325 (11th Cir. 2013). In
addition, “review under § 2254(d)(1) is limited to the record that was before the state court
that adjudicated the claim on the merits.” Cullen, 563 U.S. at 181.
Moreover, under AEDPA’s highly deferential standard of review for state court factual
determinations, a federal habeas court may only grant relief if a state court’s adjudication of a
claim “resulted in a decision that was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2).
Additionally, § 2254(e)(1) requires the Court “to presume the correctness of state courts’
factual findings” unless the habeas petitioner rebuts that presumption “with clear and
convincing evidence.” Nejad v. Att’y Gen., State of Ga., 830 F.3d 1280, 1289 (11th Cir. 2016)
(citing Schriro v. Landrigan, 550 U.S. 465, 473-74 (2007)); see also Reese v. Sec’y, Fla. Dep’t
of Corr., 675 F.3d 1277, 1287 (11th Cir. 2012) (“In a habeas proceeding, our review of findings
of fact by the state court is even more deferential than under a clearly erroneous standard of
review.”). “The Supreme Court has not yet defined § 2254(d)(2)’s precise relationship to §
2254(e)(1). . . . Whatever that precise relationship may be, a state-court factual determination
is not unreasonable merely because the federal habeas court would have reached a different
conclusion in the first instance.” Tharpe v. Warden, 834 F.3d 1323, 1336 (11th Cir. 2016)
(citing Wood v. Allen, 558 U.S. 290, 301 (2010)).

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III.

DISCUSSION
Petitioner contends the trial court erred by improperly instructing McNair to testify

based on immunity and ordering McNair to repeat his prior testimony or face perjury. (See
doc. nos. 15, 30.) The state appellate court proffered four detailed reasons why this ground
failed, as quoted in the factual background supra. Tanksley, 743 S.E.2d at 588-89. These four
reasons are factually correct, consistent with the trial record, and legally consistent with the
understanding and application of Webb and its progeny. 2 In sum, the state appelate court’s
decision was neither: (1) contrary to, or involved an unreasonable application of, clearly
established Federal law; nor was it (2) based on an unreasonable determination of the facts in
light of the record. Accordingly, Petitioner is not entitled to federal habeas relief as to Ground
One.

See, e.g., Hester v. State, 465 S.E.2d 288, 289-90 (Ga. 1995) (affirming no violation of due
process because court in Webb “went far beyond the judge in this case” even though the “court here may
have gone a little too far in ‘assuring’ [the witness] he would be prosecuted for perjury if he gave conflicting
testimony” because the court was “obligated to advise [the witness] of his right to not testify and warn him
about the possibility of perjury charges”); Terry v. State, 707 S.E.2d 623, 626-27 (Ga. Ct. App. 2011)
(affirming no violation of due process when applying Webb because prosecutor’s warning of consequences
of testifying did not dissuade defense witness, court did not deliver lengthy and unnecessary colloquy to
drive witness off stand, witness had counsel, and witness did not invoke Fifth Amendment or refuse to
answer questions); Murray v. State, 278 S.E.2d 2, 4 (Ga. Ct. App. 1981) (affirming court did not improperly
instruct witness in light of Webb because instructions conveyed “the meaning and application of the
privilege against self-incrimination,” counsel did not state any objections, and informed court if witness
intended to invoke Fifth Amendment privilege, counsel did not wish to call her); Simmons v. State, 272
S.E.2d 506, 507-08 (Ga. Ct. App. 1980) (affirming nothing in court’s “colloquy suggests the overt
prosecutorial attempt to intimidate a witness which was the basis of the rulings in Webb” after court and
state indicated both did not want witness testimony changed or influenced since he had yet to be sentenced);
see also McGlynn v. State, 803 S.E.2d 97, 101 (Ga. Ct. App. 2017) (“Although McGlynn’s defense may
have been hampered by the witness’s eve-of-trial decision not to testify” defendant’s due process rights
were not violated by “witness’s decision to assert his Fifth Amendment privilege following his conversation
with the ADA and his own counsel”); Eschena v. State, 417 S.E.2d 214, 216 (Ga. Ct. App. 1992) (rejecting
defendant’s argument court violated due process and fair trial rights when prosecutor reminded witness he
was “subject to prosecution for perjury for inconsistent sworn statements made to the court”).
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IV.

CONCLUSION
For the reasons set forth above, the Court REPORTS and RECOMMENDS

Petitioner’s § 2254 petition be DENIED, this civil action be CLOSED, and a final judgment
be ENTERED in favor of Respondent.
SO REPORTED AND RECOMMENDED this 10th day of May, 2024, at Augusta,
Georgia.

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