King v. Humphrey
ORDER re: 31 Respondent's Answer-Response to Petitioner's Amended Petition for Writ of Habeas Corpus. The Court is precluded from reviewing or will not review because of Petitioner's withdrawal of the following claims: Claim 3; Claim 4 paragraphs 52-56 and 58-59; Claim 6, and Claim 9. All other claims are properly before the Court on the merits. Signed by Chief Judge Lisa G. Wood on 4/7/2014. (csr)
3n the Uniteb 'tate 8itritt Court
for the boutbern flitrttt of georgia
BRUCE CHATMAN, Warden, Georgia
Diagnostic and Classification
Presently before the Court is Respondent's Answer-Response
to Petitioner's Amended Petition for Writ of Habeas Corpus.
Dkt. No. 31.
On October 4, 1994, the Appling County Grand Jury indicted
Petitioner Warren King for malice murder, two counts of felony
murder, armed robbery, burglary, false imprisonment, aggravated
assault, and possession of a firearm during the commission of a
felony. Dkt. No. 14-1, Lx. 1A, at 4-10. On September 24, 1998,
Petitioner was convicted of all these counts except felony
murder. Dkt. No. 14-21, Ex. 3C, at 1918-20.
On September 25, 1998, following the sentencing phase of
trial, the jury found that the following statutory aggravating
circumstances existed to impose the death penalty:
. the offense of murder was committed while Petitioner was
engaged in the commission of another capital felony, armed
• the offense of murder was committed while Petitioner was
engaged in the commission of a burglary;
• Petitioner committed the offense of murder for himself or
another, for the purpose of receiving money or other things
of monetary value; and
• Petitioner committed murder as an agent of another person,
Id. at 1921-23. The jury recommended a sentence of death, and
the trial court sentenced Petitioner to death. Id. at 1922,
1924; Dkt. No. 14-22, Ex. 3D, at 1925. Petitioner was further
sentenced to consecutive sentences of life imprisonment for
armed robbery, 20 years for burglary, 20 yearé for aggravated
assault, 10 years for false imprisonment, and 5 years for
possession of a firearm during the commission of a felony. Dkt.
No. 14-22, Ex. 3D, at 1926-30.
On October 28, 1998, Petitioner filed a motion for new
trial and an amendment thereto in November 1999. Id. at
1946-48, 1976-94. On February 7, 2000, following a hearing,
this motion was denied. Id. at 2006.
Petitioner appealed his conviction and sentence to the
Supreme Court of Georgia, which on November 30, 2000, affirmed
Petitioner's convictions and sentence of death. Dkt. 18-13, Ex.
43; King v. State, 273 Ga. 258 (2000). On December 15, 2000,
Petitioner's motion for reconsideration was denied. Dkt. No.
18-15, Ex. 45. Thereafter, Petitioner filed a petition for writ
of certiorari in the Supreme Court of the United States, which
was denied on June 28, 2002. Dkt. Nos. 18-16, Ex. 46; 18-22,
Ex. 51; 18-23, Ex. 52; 18-24, Ex. 53; 18-25, Ex. 54; 18-26, Ex.
55; 18-27, Ex. 56; 18-28, Ex. 57; King v. Georgia, 536 U.S. 957
On October 28, 2002, Petitioner filed a state habeas corpus
petition in the Superior Court of Butts County, Georgia, and an
amendment thereto on January 31, 2008. Dkt. Nos. 18-29, Ex. 58;
19-35, Ex. 103. In mid-December 2008, an evidentiary hearing
was conducted. Dkt. No. 19-37, Ex. 105A. On,April 20, 2010,
the state habeas corpus court entered an order denying relief.
Dkt. No. 25-3, Ex. 156. On July 22, 2010, Petitioner filed in
the Supreme Court of Georgia an application for a certificate of
probable cause to appeal from the denial of habeas corpus
relief. Dkt. No. 25-5, Ex. 158A. On November 7, 2011, the
Supreme Court of Georgia denied this application for a
certificate of probable cause to appeal. Dkt. No. 25-10, Ex.
160. Thereafter, Petitioner filed a petition for writ of
certiorari in the Supreme Court of the United States, which was
denied on June 11, 2012. Dkt. Nos. 25-11, Ex. 161; 25-12, Ex.
162; 25-13, Ex. 163; King v. Humphrey, 132 S. Ct. 2743 (2012).
On June 28, 2012, Petitioner filed his federal petition for
writ of habeas corpus. Dkt. No. 1. On February 1, 2013, the
Court ordered Petitioner to file an amended petition, which
Petitioner filed on May 2, 2013. Dkt. Nos. 28; 29. Respondent
filed an answer in response to the amended petition. Dkt. No.
II. Legal Standard
Because Petitioner filed his federal habeas corpus petition
in 2012, the Antiterrorism and Effective Death Penalty Act of
1996, Pub. L. No. 104-132, 110 Stat. 1214 ("AEDPA"), provides
the standard of review.
Because "federal habeas review exists only to review errors
of constitutional dimension," a habeas corpus.petition must meet
the "heightened pleading requirements [of] 28 U.S.C. § 2254 Rule
2(c)." McFarland v. Scott, 512 U.S. 849, 856, 861 (1994)
(citation omitted). "[T]he petition must 'specify all the
grounds for relief available to the petitioner' and 'state the
facts supporting each ground.'" Mayle v. Felix, 545 U.S. 644,
655 (2005) (quoting Rule 2(c) of the Rules Governing § 2254
Cases in the United States District Courts [hereinafter § 2254
Rules]). Accordingly, general references to the transcripts,
case records, and briefs on appeal fail to comply with Rule
2(c). See, e.g., Phillips v. Dormire, No. 4:04CV1483TCM, 2006
WL 744387, at *1 (E.D. Mo. Mar. 20, 2006) (citing Adams v.
Armontrout, 897 F.2d 332, 333 (8th Cir. 1990)); Grant v.
Georgia, 358 F.2d 742, 742 (5th Cir. 1966) (per curiam) ("The
application fails to allege any facts upon which the trial court
could find a deprivation of a constitutional right, or any other
basis for collateral attack. Mere conclusionary allegations
will not suffice." (citation omitted)).
The burden of proof is on the habeas petitioner "to
establish his right to habeas relief[,] and he must prove all
facts necessary to show a constitutional violation."
Blankenship v. Hall, 542 F.3d 1253, 1270 (11th Cir. 2008); see
also Stano v. Dugger, 901 F.2d 898, 899 (11th Cir. 1990) ("If
there has been no evidentiary hearing in state court on an issue
raised on habeas corpus, one is required if the petitioner
alleges facts which, if true, would entitle him to relief.");
Hill v. Linahan, 697 F.2d 1032, 1036 (11th Cir. 1983) (per
curiam) ("The burden of proof in a habeas proceeding is always
on the petitioner."). "A habeas petitioner must present a claim
in clear and simple language such that the district court may
not misunderstand it." Dupree v. Warden, 715 F.3d 1295, 1299
(11th Cir. 2013). And, he must state specific, particularized
facts that consist of sufficient detail to enable the court to
determine, from the face of the petition, whether the petition
merits further habeas corpus review, see Mayle, 545 U.S. at 655
("Notice pleading is not sufficient [in habeas proceedings], for
the petition is expected to state facts that point to a real
possibility of constitutional error." (quoting Advisory
Committee Note to Rule 4 of § 2254 Rules) (brackets and internal
quotation marks omitted)) . Therefore, the mere assertion of a
ground for relief, without more factual detail, does not satisfy
a petitioner's burden of proof or the requirements of 28 U.S.C.
§ 2254 and Rule 2(c) of § 2254 Rules. See Benjamin v. Sec'y for
Dep't of Corr., 151 F. App'x 869, 873-74 (11th Cir. 2005) (per
curiam) (noting that "the Supreme Court has required . . . that
petitioners must (1) include all grounds on which they sought
relief, and (2) allege facts in support of each ground
asserted"); Smith v. Wainwright, 777 F.2d 609, 616 (11th Cir.
1985) (stating that "a habeas corpus petitioner must allege
specific errors in his counsel's performance to support a claim
for ineffective assistance of counsel").
A. Unexhausted Claim
Respondent asserts that a portion of Claim 6 ¶ 61—wherein
Petitioner alleges misconduct on the part of the grand jurors in
that they gave improper consideration of matters extraneous to
the bill of indictment—is unexhausted. Dkt. No. 31 ¶ 6.
Petitioner concedes that this portion of Claim 6 ¶ 61 is
unexhausted and withdraws that portion from his petition. See
Dkt. No. 37, at 5-6.
B. Non-Cognizable Claim
Respondent asserts that Claim 9 is not cognizable under 28
U.S.C. § 2254. Dkt. No. 31 ¶ 7.
In support, Respondent points
to the state habeas court's finding that Claim 9 (Claim 8 of
Petitioner's amended state habeas petition) was not a cognizable
claim for relief under O.C.G.A. § 9-14-42(a).' Id. (citing Dkt.
No. 25-3, Ex. 156, at 7); see also Dkt. No. 39, at 4 (briefing
why the claim is non-cognizable).
Claim 9 asserts that Petitioner's execution by lethal
injection is cruel and unusual punishment in violation of his
rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments
of the United States Constitution. Dkt. No. 29, at 50.
Despite Petitioner's assertion that the state habeas court held that this
claim was without merit rather than finding it non-cognizable, Dkt. No. 37,
at 6, the state habeas court expressly held that Petitioner's claim "is noncognizable"—thereafter noting that the claim would be without merit if it was
cognizable. Dkt. No. 25-3, Ex. 156, at 7.
Specifically, Petitioner argues that the use of pentobarbital,
which has been used in a number of executions in Georgia since
2012, represents a significant change from past executions that
"will likely cause Petitioner to consciously suffer an
excruciatingly painful and protracted death." Id. ¶ 68.
Further, this risk is enhanced by an alleged lack of sufficient
safeguards, criteria, and standards regarding the manner in
which the execution is to be carried out. Id. ¶ 69.
Claim 9 is not cognizable. A suit under 42 U.S.C. § 1983,
"not a habeas proceeding, is the proper way to challenge lethal
injection procedures." Tompkins v. Sec'y, Dep't of Corr., 557
F.3d 1257, 1261 (11th Cir. 2009) (per curiam) (citing Hill
McDonough, 547 U.S. 573, 579-83 (2006)); McNabb v. Comm'r Ala.
Dep't of Corr., 727 F.3d 1334, 1344 (11th dr. 2013). By
challenging the state's method of execution, Petitioner is
challenging a circumstance of his confinement rather than
attacking the validity of his conviction or sentence—thereby
making his claim non-cognizable. McNabb, 727 F.3d at 1344.
C. Procedural Default
Respondent asserts that the following claims are
procedurally defaulted: Claim 3; Claim 5 ¶ 52; Claim 5 ¶ 53;
Claim 5 ¶ 54; Claim 5 ¶ 55; Claim 5 ¶ 56; Claim 5 ¶ 58; Claim 5
¶ 59; and all of Claim 6 except for the portion challenged as
unexhausted. 2 Dkt. No. 31, at 10-13 (arguing that 18 distinct
portions are procedurally defaulted) . Petitioner withdraws all
of Claim 6 and part of Claim 5, that is, paragraphs 58 and the
latter part of 59 (involving allegations of improper prosecutor
argument at either phase of trial). Dkt. No. 37, at 9-10.
1. Legal Standard
a. Procedural Default
"The doctrine of procedural default dictates that a state
court's rejection of a petitioner's constitutional claim on
state procedural grounds will generally preclude any subsequent
federal habeas review of that claim." Ward v. Hall, 592 F.3d
1144, 1156 (11th Cir. 2010) (citation, brackets, and internal
quotation marks omitted). "However, a state court's rejection
of a federal constitutional claim on procedural grounds may only
preclude federal review if the state procedural ruling rests
upon 'adequate and independent' state grounds." Id. (citation
An "adequate and independent" state court decision is one
that "rests on a state law ground that is independent of the
federal question and adequate to support the judgment." Lee v.
Kemna, 534 U.S. 362, 374-75 (2002) (citation and emphasis
omitted) . Whether a state procedural rule is "adequate and
See supra Part III.A.
independent" as to have a preclusive effect on federal review of
a claim "is itself a federal question." Id. (citation omitted).
A state procedural rule is independent of the federal
question when it "rest[s] solidly on state law grounds [that
are] not . . . 'intertwined with an interpretation of federal
law.'" Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001)
(quoting Card v. Dugger, 911 F.2d 1494, 1516 (11th Cir. 1990)).
A state procedural rule is "adequate" if it is both "firmly
established and regularly followed." Kemna, 534 U.S. at 376
(citation omitted). This does not mean that the procedural rule
must be rigidly applied in every instance, or that occasional
failure to do so eliminates its "adequacy." Rather, the
"adequacy" requirement means only that the procedural rule "must
not be applied in an arbitrary or unprecedented fashion." Judd,
250 F.3d at 1313; see also Card, 911 F.2d at 1517 ("[A] state
court's procedural rule must be faithfully and regularly applied
and must not be manifestly unfair in its treatment of a
petitioner's federal constitutional claim." (citations
The Eleventh Circuit has established a three-part test to
enable federal courts to determine when a state court's
procedural ruling constitutes an independent and adequate state
rule of decision. Ward, 592 F.3d at 1156 (citation omitted).
"First, the last state court rendering a judgment in the case
must clearly and expressly state that it is relying on state
procedural rules to resolve the federal claim without reaching
the merits of that claim." Id. (citation omitted). "Second,
the state court's decision must rest entirely on state law
grounds and not be intertwined with an interpretation of federal
law." Id. at 1156-57. "Third, the state procedural rule must
be adequate, i.e., firmly established and regularly followed and
not applied in an arbitrary or unprecedented fashion." Id. at
1157 (citation and internal quotation marks omitted). The
Eleventh Circuit qualified the first prong of the test with the
following observation from the Supreme Court:
The problem we face arises, of course, because
many formulary orders are not meant to convey
anything as to the reason for the decision.
Attributing a reason is therefore both difficult
and artificial. We think that the attribution
necessary for federal habeas purposes can be
facilitated, and sound results more often
assured, by applying the following presumption:
Where there has been one reasoned state judgment
rejecting a federal claim, later unexplained
orders upholding that judgment or rejecting the
same claim rest upon the same ground. If an
earlier opinion "fairly appears to rest primarily
upon federal law, we will presume that no
procedural default has been invoked by a
subsequent unexplained order that leaves the
judgment or its consequences in place."
Similarly[,] where . . . the last reasoned
opinion on the claim explicitly imposes a
procedural default, we will presume that a later
decision rejecting the claim did not silently
disregard that bar and consider the merits.
Id. at 1156 n.5 (quoting Ylst v. Nunnemaker, 501 U.S. 797, 803
(1991)). Thus, "[w]hen the last state court rendering judgment
affirms without explanation, [a federal court will] presume that
it rests on the reasons given in the last reasoned decision."
Mason v. Allen, 605 F.3d 1114, 1118 n.2 (11th Cir. 2010) (per
Absent reason for contrary treatment, a state court's clear
finding of procedural default under the state court's own rules
is afforded an amount of deference. This deference is so strong
[A] state court need not fear reaching the merits
of a federal claim in an alternative holding.
Through its very definition, the adequate and
independent state ground doctrine requires the
federal court to honor a state holding that is a
sufficient basis for the state court's judgment,
even when the state court also relies on federal
Bailey v. Nagle, 172 F.3d 1299, 1305 (11th Cir. 1999) (per
curiam) (alteration and emphasis in original) (quoting Harris v.
Reed, 489 U.S. 255, 264 n.10 (1989)); see also Alderman v. Zant,
22 F.3d 1541, 1549-51 (11th Cir. 1994) (stating that, as to a
state court's finding that the petitioner's claims were
procedurally barred as successive and that the claims lacked
merit based on the evidence,"[t]his ruling in the alternative
[did] not have the effect . . . of blurring the clear
determination by the [Georgia habeas corpus] court that the
allegation was procedurally barred")
b. Exceptions to Procedural Default
There are two situations in which an otherwise adequate and
independent state ground will not bar a federal habeas court
from considering a constitutional claim that was procedurally
defaulted in the state courts: (1) where the prisoner had good
cause for not following the state procedural rule and was
prejudiced by not having done so; and (2) where failure to
consider a prisoner's claims will result in a "fundamental
miscarriage of justice." see Coleman v. Thompson, 501 U.S. 722,
("[A]n adequate and independent finding of
procedural default will bar federal habeas review of the federal
claim, unless the habeas petitioner can show cause for the
default and prejudice attributable thereto, or demonstrate that
failure to consider the federal claim will result in a
fundamental miscarriage of justice." (citations and internal
quotation marks omitted)); Jones v. Campbell,436 F.3d 1285,
1304 (11th Cir. 2006) ("A petitioner may obtain federal review
of a procedurally defaulted claim if he can show both cause for
the default and actual prejudice resulting from the default.
Additionally, in extraordinary cases, a federal court may grant
a habeas petition without a showing of cause and prejudice to
correct a fundamental miscarriage of justice." (citations
i. Cause and Prejudice
The "cause and prejudice" standard is framed in the
conjunctive. Thus, a petitioner must affirmatively prove both
cause and prejudice. Cf. Ward, 592 F.3d at 1157 ("It is well
established that if the petitioner fails to show cause, [the
court] need not proceed to the issue of prejudice.").
"To show cause, the petitioner must demonstrate 'some
objective factor external to the defense' that impeded his
effort to raise the claim properly in state court." Id.
(quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)); see also
Amadeo v. Zant, 486 U.S. 214, 221-22 (1988) . Objective factors
that constitute cause include "interference by officials" that
makes compliance with the State's procedural rule impracticable
and "a showing that the factual or legal basis for a claim was
not reasonably available to counsel." Zeigler v. Crosby, 345
F.3d 1300, 1305 (11th Cir. 2003) (per curiam) (quoting Carrier,
477 U.S. at 488) . In addition, "ineffective assistance [of
counsel] adequate to establish cause for the procedural default
of some other constitutional claim is itself an independent
constitutional claim." Edwards v. Carpenter, 529 U.S. 446, 451
(2000). However, attorney error short of ineffective assistance
of counsel does not constitute cause and will not excuse a
procedural default. McCleskey v. Zant, 499 U.S. 467, 493-94
(1991) . Further, "where a constitutional claim is so novel that
its legal basis is not reasonably available to counsel, a
defendant has cause for his failure to raise the claim in
accordance with applicable state procedures." Reed v. Ross, 468
U.S. 1, 16 (1984).
If cause is established, a habeas petitioner must also
prove "actual prejudice from the alleged constitutional
violation." Ward, 592 F.3d at 1157. "To establish 'prejudice,'
a petitioner must show that there is at least a reasonable
probability that the result of the proceeding would have been
different." Spencer v. Sec'y, Dep't of Corr., 609 F.3d 1170,
1180 (11th Cir. 2010) (citation omitted) . Such a showing must
go beyond proof "that the errors at his trial created a
possibility of prejudice, but that they worked to his actual and
substantial disadvantage, infecting his entire trial with error
of constitutional dimensions." United States v. Frady, 456 U.S.
152, 170 (1982); see also Ward, 592 F.3d at 1157 ("[T]o show
prejudice, a petitioner must demonstrate that the errors at
trial actually and substantially disadvantaged his defense so
that he was denied fundamental fairness." (citation and internal
quotation marks omitted)).
ii. Fundamental Miscarriage of Justice
"[I:lf a petitioner cannot show cause and prejudice, there
remains yet another avenue for him to receive consideration on
the merits of his procedurally defaulted claim." Ward, 592 F.3d
at 1157. In a "rare," "extraordinary," 3 and "narrow class of
a federal court may consider a procedurally defaulted
claim in the absence of a showing of cause and prejudice for the
procedural default if either (1) a fundamental miscarriage of
justice "has probably resulted in the conviction of one who is
actually innocent," Smith v. Murray, 477 U.S. 527, 537-38 (1986)
(quoting Carrier, 477 U.S. at 496), or (2) the petitioner shows
"by clear and convincing evidence that but for a constitutional
error, no reasonable juror would have found the petitioner
eligible for the death penalty," Schlup v. Delo, 513 U.S. 298,
323 (1995) (quoting sawyer v. Whitley, 505 U.S. 333, 336
See Schlup v. Delo, 513 U.S. 298, 321 (1995) ("To ensure that the
fundamental miscarriage of justice exception would remain 'rare' and would
only be applied in the 'extraordinary case,' while at the same time ensuring
that the exception would extend relief to those who were truly deserving,
[the Supreme] Court explicitly tied the miscarriage of justice exception to
the petitioner's innocence." (emphasis added)).
McCleskey, 499 U.S. at 494 ("Federal courts retain the authority to issue
the writ of habeas corpus in a further, narrow class of cases despite a
petitioner's failure to show cause for a procedural default. These are
extraordinary instances when a constitutional violation probably has caused
the conviction of one innocent of the crime. We have described this class of
cases as implicating a fundamental miscarriage of justice." (emphasis
a. Claim 3
Claim 3 asserts that "Petitioner's execution would be a
miscarriage of justice in violation of the Eighth and Fourteenth
Amendments to the United States Constitution, because, at the
time of the offense, Petitioner was similar to juveniles
categorically protected from execution. ,5 Dkt. No. 29, at 23
(capitalization altered). The state habeas court found that the
claim was procedurally defaulted because "Petitioner failed to
raise [it] on direct appeal and . . . failed to establish cause
and actual prejudice, or a miscarriage of justice, sufficient to
excuse his procedural default." Dkt. No. 25-3, Ex. 156, at 5.
The state habeas court relied on state law when it clearly
and expressly found that these claims were procedurally
defaulted for failure to raise them at trial or on direct
appeal. Id. The state habeas court made its ruling without
interpreting federal law. Id. Moreover, Georgia's procedural
default rules—including the procedural default doctrine under
O.C.G.A. § 9-14-48(d) and the successive petition doctrine under
O.C.G.A. § 9-14-51—are firmly and regularly applied and have
been given deference by the Eleventh Circuit. See, e.g., Ward,
This claim is based upon Petitioner's expanded reading of Atkins v. Virginia,
536 U.S. 304 (2002), and Roper v. Simmons, 543 U.S. 551 (2005). Dkt. No. 29
592 F.3d at 1176. Therefore, Claim 3 is procedurally defaulted
unless Petitioner can show an applicable exception.
Petitioner contends that the Court may review Claim 3 based
on Roper v. Simmons, 543 U.S. 551 (2005), being collaterally
retroactive and previously unavailable during direct appeal, or
there being a miscarriage of justice if there is not review of
Claim 3 on the merits. Dkt. No. 37, at 8. Both arguments are
First, Roper does not apply because Petitioner was 18 years
old at the time of the underlying offense. The Supreme Court in
Roper addressed "whether it is permissible under the Eighth and
Fourteenth Amendments to the Constitution of the United States
to execute a juvenile offender who was older than 15 but younger
than 18 when he committed a capital crime." 543 U.S. at 555-56.
Despite Petitioner's argument based on him also being
developmentally immature, Roper expressly drew a line at 18
years old for the age in which the imposition of the death
penalty may be constitutionally permissible. See Id. at 568,
574 (holding such while admitting that there are objections to a
categorical rule, such as the qualities distinguishing juveniles
from adults not disappearing when an individual turns 18).
Therefore, Roper's retroactivity Is inapposite to Petitioner's
claim—rather, it expressly countenances Petitioner's death
sentence—and its collaterally retroactive effect has no bearing
on the case.
Second, not considering the claim's merits does not create
a miscarriage of justice. Petitioner supports this argument
with no legal or factual proffering, but only a single-sentence
conclusion that "a miscarriage of justice would ensue" if the
Court does not review Claim 3 on its merits. Dkt. No. 37. As
to Claim 3, there is no showing that a fundamental error has
probably resulted in the conviction of an actually innocent
individual or that there is clear and convincing evidence that
no reasonable juror would have found Petitioner eligible for the
death penalty (let alone that Claim 3 asserts an applicable
constitutional error). Therefore, Claim 3 is procedurally
b. Claim 5
Claim 5 asserts various forms of "misconduct by the
prosecution team and other state agents [that] deprived
Petitioner of his constitutional rights to due process and a
fair trial, in violation of the Fifth, Sixth, Eighth and
Fourteenth Amendments to the United States Constitution." Dkt.
No. 29, at 37. Respondent asserts that all of Claim 5 except
paragraph 57 (averring improper use of peremptory challenges) is
procedurally defaulted. See Dkt. No. 31, at 11-12. Indeed, the
state habeas court found that these claims were procedurally
defaulted. Dkt. No. 25-3, Ex. 156, at 6. In response,
Petitioner withdraws paragraphs 58 and a portion of 59 of Claim
5 but contends that the other portions are not procedurally
defaulted. Dkt. No. 37, at 9.
i. Paragraphs 52-54, 56
Petitioner contends that five of the challenged grievances
were encompassed by Enumeration of Error 27 in his direct appeal
brief before the Supreme Court of Georgia and thus that the
state habeas court erred in finding them procedurally defaulted.
Id. at 8-9 (citing Dkt. No. 18-9, Ex. 40C, at 269-275) . The
five claims are that:
• "[t]he State suppressed information favorable to the
defense at both phases of the trial . . . in violation of
Brady v. Maryland, 373 U.S. 
(), and Kyles v.
W hitley, 514 U.S. 419 (1995)," Dkt. No. 29 ¶ 52;
• "[t)he State took advantage of Petitioner's ignorance of
the undisclosed favorable information by aruing to the
jury that which it knew or should have known to be false
and/or misleading," id.;
• "[t]he State failed to disclose benefits or promises
extended to State witnesses in exchange for their testimony
and allowed its witnesses to convey a false impression to
the jury," id. ¶ 53;
• "[t]he State elicited false and/or misleading testimony
from State witnesses at trial," id. ¶ 54; and
• "[t]he state knowingly or negligently presented false
testimony in pretrial and trial proceedings," id. 11 54,
Indeed, the state habeas court held that these were procedurally
defaulted. Dkt. No. 25-3, Ex. 156, at 6.
On direct appeal, Petitioner argued that "[t]he trial court
erred by failing to require the state to reveal exculpatory
information in its possession by allowing the state to commit
Brady/Giglio violations." Dkt. No. 18-9, Ex. 40C, at 269.
Specifically, Petitioner argued that certain circumstances
prejudiced him and necessitated a change in his theory of
defense: being tried before his co-defendant's trial; a grant of
use-and-derivative-use immunity to his co-defendant; and the
trial court's issuance of an ex parte order, less than a month
before trial and after the prosecution assured him that there
had been no deal with his co-defendant, that his co-defendant
testify at trial. Id. at 271-74. Petitioner concluded by
claiming that the prosecution failed to meet its Brady
obligations and that "it is certain much more unproduced
material is contained in the sealed record available" to the
state court. Id. at 274-75.
Petitioner's broadly worded claims are distinct from those
raised on direct appeal. The state habeas court's finding of
procedural default is entitled to deference, see, e.g., Bailey,
172 F.3d at 1305, as the state court expressly and solely relied
on state law that is firmly established and regularly followed.
See Dkt. No. 25-3, Ex. 156, at 5-6 (citing "Black v. Hardin, 255
Ga. 239 (1985); Valenzuela v. Newsome, 253 Ga. 793 (1985);
O.C.G.A. § 9-14-48(d)"). Consequently, paragraphs 52, 53, 54
and 56 of Claim 5 are procedurally defaulted unless Petitioner
has established cause and prejudice or a fundamental miscarriage
of justice, which Petitioner has failed to argue. Therefore,
these claims are procedurally defaulted.
ii. Paragraph 55
Petitioner contends that paragraph 55 of Claim 5 was
encompassed by Enumeration of Error 22 in his direct appeal
brief before the Supreme Court of Georgia and thus that the
state habeas court erred in finding it procedurally defaulted.
Dkt. No. 37, at 9 (citing Dkt. No. 18-8, Ex. 40B, at 231-38)
This portion of Claim 5 asserts that "[t]he prosecution
improperly misled the jury as to the law of mental retardation
in terms of the significance of a finding of guilty but mentally
retarded, thus denying Petitioner a fair hearing on the issue of
his retardation which comported with due process." Dkt. No. 29
¶ 55. The enumeration of error on direct appeal stated that
"[t]he trial court committed plain error when it allowed the
prosecutor, during closing argument on the guilt—innocence
mental retardation phase of the trial, after being warned not to
do so, to commit intentional and flagrant violations of the law
by purposefully telling the jury that a finding of mental
retardation would mean the death penalty could not be imposed
against appellant." Dkt. No. 18-8, Ex. 40B, at 231
(capitalization altered). Thus, the issue on direct appeal was
not whether the law was correctly stated, but rather whether
such a statement of the law "was completely improper argument by
the State" because it was irrelevant to the "separate and
distinct . . . question of guilt." Id. at 234-35.
Despite Petitioner's attempt to mingle his present attack
on the statement of the law as misleading and former attack on
the statement of the law in front of the jury as improper
(albeit substantively correct), the state habeas court found
that the claim was procedurally defaulted. Dkt. No. 25-3, Ex.
156, at 5-6. This determination is entitled to deference, see,
e.g., Bailey, 172 F.3d at 1305, as the state court expressly and
solely relied on state law that is firmly established and
regularly followed. See Dkt. No. 25-3, Ex. 156, at 5-6 (citing
"Black v. Hardin, 255 Ga. 239 (1985); Valenzuela v. Newsome, 253
Ga. 793 (1985); O.C.G.A. § 9-14-48(d)"). Beyond a general
averment that he raised the claim on direct appeal and that the
state habeas court erred, Petitioner does not argue why one of
the exceptions to procedural default should apply. Therefore,
paragraph 55 of Claim 5 is procedurally defaulted.
iii. Paragraph 59
Although Petitioner withdraws the portion of paragraph 59
of Claim 5 dealing with improper prosecutor argument, Petitioner
contends that the part pertaining to cross-examination was
encompassed by Enumeration of Error 24 in his direct appeal
brief before the Supreme Court of Georgia. Dkt. No. 37, at 9
(citing Dkt. Nos. 18-8, Ex. 40B, at 245-51; 18-9, Ex. 40C, at
252-55) . Paragraph 59 states that "Petitioner's rights to due
process and a fair trial were violated by improper and
prejudicial remarks by the prosecution during its crossexamination of witnesses . . . at the guilt/innocence and
sentencing phases of the trial." Dkt. No. 29 ¶ 59. The
enumeration of error on direct appeal stated that "[t]he trial
court erred by failing to declare a mistrial after the
prosecutor, during cross-examination of one of [Petitioner's]
experts [on Petitioner's alleged mental retardation],
Dr. Earnest Miller, purposely engaged in illegal and
intentionally inflammatory questioning." Dkt. No. 18-8, Ex.
40B, at 245 (capitalization altered)
Despite Petitioner's argument on direct appeal regarding
improper cross-examination of a single expert witness, the state
habeas court found that the claim for "improper and prejudicial
remarks during [the State's] cross-examination of witnesses" was
procedurally defaulted. Dkt. No. 25-3, Ex. 156, at 5-6. This
determination is entitled to deference, see, e.g., Bailey, 172
F.3d at 1305, as the state court expressly and solely relied on
state law that is firmly established and regularly followed.
See Dkt. No. 25-3, Ex. 156, at 5-6. Although Petitioner
contested on direct appeal the cross-examination of one witness,
that ground is much narrower than the claim asserted in this
action for cross-examination of unidentified witnesses. Beyond
a general averment of raising the claim on direct appeal and
error by the state habeas court, Petitioner does not argue why
one of the exceptions to procedural default should apply.
Therefore, paragraph 59 of Claim 5 is procedurally defaulted.
For the aforementioned reasons, the Court is precluded from
reviewing or will not review because of Petitioner's withdrawal
the following claims:
• Claim 3;
• Claim 5 191 52-56, 58 - 59;
• Claim 6; and
• Claim 9.
All other claims are properly before the Court on the merits.
SO ORDERED, this 7TH day of April, 2014.
LISA GODBEY OOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
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