O'Kelley v. Warden

Filing 86

ORDER Denying re 82 Motion for Evidentiary Hearing; Dismissing as Moot re 85 Motion for Ruling on Petitioner's Motion for Evidentiary Hearing. Signed by Judge William T. Moore, Jr on 3/7/18. (loh)

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FitIu
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t]tsiRtcT
c0uRl
sAv.\$HAH
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THE ITNTTED ST+TES DTSTRTCT COURT FOR
*tR
THE SOUTHERN
]DISTRICT OF GEORGIA ?Bt8 -T Ail rrI
l0:
SAVA}INAH DIVISION

nenffi__
.,--..---.-.-..

DORIAN FRANK O'KELLEY,
D6fifi^.Ar

CASENO. CV415_104
G
WARDEN, eorgia
Pri son,

ni

rnnnc]-

i r

Respondent

ORDER

Lo dearh

senrenced

r
Lhe nLr ders

of

2-5.)

h.l-i6:a

- ^ v u -r t
L r1

corpus

in

After
L

by

nraneod

i rr-r
t n r Y r ,q

V!v!!Lu

pursuant

1.)

Pelicioner

has now fiLed

Ceorgia

ChaLham County

for

oI

daughter'

his

necessa

5 at

Petirioner

and death

i q

Court

Lhe complet ion of

conviction

hLc q r i rn 9o
r s:
L L r

and

r-he Superi or

his

In

was convicted

(Doc. 33, Attach.

th.j s court.

(Doc. 82.)

Frank O'Keffey

Susan PitLman and her thj rLeen-year-old

Pittman.

Kimberly
19 at

Dorian

2005, Petitioner

In

sentence

motion,
py

-n

Supreme Courl's

to

15-16;

Doc. 16' Attach.

his

direcc

appeal

fi

a

28 U.S.C.

PetiLloner

for

'o-

no'i.r'o"l

S 2254,

on a number of

a Motion

ricrrel nn

lcd

and sLare
h2haFq

cnal lenging

grounds.

(Doc.

Hearing.

Evidenciary

asserLS thaL an ev:denciary

esscn-.i al

propo.rLionali Ly

facts

Lo

rev iew

show

of

thal

his

uhe

death

(rd. )

unconstitutional.

sent ence

T
m o t i o n i s DENIED .

/ PeLitioner's

consideration

careful

BECKGROI'ND
EACTUAL H] STORY
The facts
of

of

this

Supreme Court

by the

forth

case were set

Georgia:
10, 2AA2, O'KeIley
before midnight on April
fSlhortly
were observed at
Darryl Stinski'
and his co-defendant,
by two Chatham County police
store
a convenience
The officers
noticed the defendants because
officers.
a
they carried
they were dressed in black clothing/
had
appeared empty, and Stlnski
bag that
black duffle
after
piercings '
Shortfy
ear
facial
and
severaf
the
officers
the
store,
left
O'KeIIey
and Stinski
a residence within
alarm at
responded to a burglar
walking d.istance of the store and discovered a broken
who was
The occupant of the residence,
window rhere.
she
at trial,
that
testified
not home at the time.
to
returned to find that someone had apparentl-y tried
window and bent
kick in her back door and had broken a
rod inside the home. O'Kelley admitted in
the curtaln
went
statement to polj-ce that he and Stinski
his first
therein
on
to a residence in order to commit a theft
the alarm went
in question but fled after
the night
of f .
at approximately 5:30 a.m' on
A few hours later,
police
the
officers
were leaving
Apr-l
1I, the same
in
the
a fire
when they
spotted
convenience store
^ L r
. l i s f a n c e - R u s h i n r : +U F- t l-l j^ ^ r^ ^r ^ ^ I - -Ll ^y" f o u n d r h e P i t E m a n
| t s
D er s
L
residence engulfed in ffames. This home was in cl-ose
proxirnity
to the resldence which had been burglarized
car, one of
of the police
fn the headlights
earlier.
rha

time

nFf

ir-orq

standinq

tha

hrrrni
,u!r--r.Y

the

tlne

na

the

aa:ir.

in
hnrr<a

^t-\<^r\,6-.1

n t K ra L l !c! v
l j
\ r
v

>nd

a wooded area across
H-I^roltFr-

officers

,

exited

ruh rcurJr
r

the

hr a s l
r ur

ql-i^cLi

the

street

_li qaFnoarp'l
v+ve|/yv

vehicfe.

once

-hi<

from
h1/

the

1 Accordingly,
RuIing on Petitioner:'
Respondent's Motion for
H e a r i n g ( D o c . 85) is DISMTSSEDAS MOOT.
Motion for Evidentiary

extinguished,
was
fire
remains of the v.ictims.

officials

discovered

the

a
brought
and Stinski
O'Kelley
evening,
That
was
home where Stinski
the
mobile
bag to
duffle
O'Kelley told the group of people present
and
staying,
had stolen items from automobiles
that he and Stinski
in the neighborhood. He afso confided in one member of
to the
and set fire
the group that he had burglarized
Ms.
and he c.Iaimed to have slit
residence,
Pittnan
and to have raped KimberLy. O'KeJ-ley
throat
Pittman's
then removed from his wall,et a tooLh in a ziplock bag
out of lhe f ittl,e
and stated that he had "busted it
left
the
qirJ-'s
O'KelLey and Stinski
mouth. " After
bag and
group opened the dufffe
mobil-e home, the
compact discs
including
items,
several
discovered
pill
and prescription
initials
marked with Kimberly's
name
oxycodone with Ms. Pittman's
bottl-es containing
A group member phoned the
and address on the fabels.
contents
and
the bag's
police
and advised them of
of the bag
the contents
After
com,nents.
O'Kelley's
by a family member as belonging to che
were idencified
and a
were arrested,
O'KelLey and Stinski
victims,
evidence to
later
determined through DNA
human tooth
wallet.
belong to Kimberfy was found inside O'Kelley's
police,
O'Kelley
to
second statement
his
In
Ms. Pj crman by repeatedly beating
confessed to killing
and stabbjng her, to beaLing and stabbing KimberIy, Lo
while Kimjcerly
the Pittman residence on fire
setting
and to taking numerous items from the
alive,
was stil}
residence. O'Kelley toJ-d police that items stofen from
the home and from automobiles in the neighborhood were
he had
of his house and that
located
in the attic
dj scarded the cfoching and shoes that he was wearing
the murders in a garbage bag on top of an
during
abandoned rnobi-le home near his house, Po.Lice located
on the
Blood
described.
as O'KeIIey
these
items
and bfood on
Ms' Pittman's,
as
was identified
clothing
as that of both viclims '
the shoes was identified
early on the day
that,
Four witnesses testified
soneone
that
they discovered
the murders,
following
removed personal beJongrngs from
had broken into and
neighborhood.
their
automobiles parked in O'KeIIey's
one of these
was found inside
fingerprint
O'Ketley's
stofen
lheir
identified
and the witnesses
vehicles,

nrona

f -om

rl- \/

ranarra

i tems

r or'l

l^'tr

nr'lir-a

fhF

from

O'KeILey' s attic.
v.

O'Kefley

284 Ga.758,

Georgia,

670 S.E.2d 388, 392-93

759-60,

(2008).
HISTORY
PROCEDURAI,

II

was chargted with

Petitioner

each of

two counrs
count

of

controlled

guilty
the

exceotion

of

to

Iater,

oossession

Petitioner

was

Susan and

Kimberly

trial,

jury

sLdLuLUJy

(1)

2005,

The murders
in

-^

of

entering
at

lhe

indictment

with

substance

with

Attach.
to

5 at

death
76,

for

Attach.

Five

15-16')

19

committed
>D,LL./ll

WL

while
4

days

murders

the

at

2-5.)

existence

rdLL!-./.rD.

n n-m.m.i. - - -

758.

and he was found

t-^F^'^.

were

J-hc

a

control.Led

a

Id.

found beyond a reasonabLe doubt the
-Fl

of

controf l-ed

a

(Doc.

Pittman.

d99LdvdL.lrr9

annzaaA

sentenced

of

theft.

one

degree,

counts

charges in

of

(Doc. 33,

distribute.

the

21,

murder'

possession

of

and five

began on October

malice

first

possession

commit

to

aLl

the

count

distribur:e,

on November 3, 2005 of

intent

s-Lx

count

intent

with

trial-

Petitioner's

of

to

intenr

automobi.le

one

one

substance,

subscance wlth
an

children,

to

cruelty

in

and arson

burgLary

of

counts

two

Petitioner

was

uLrL9LoLI,

was
first

(2)

The murders were committed whil-e Petitioner
of arson in the
engaged in the connission
degree;

(3)

or ltantonl-y vife,
The murders were outrageously
involved
they
that
inhuman in
or
horribte,
to the victims before death;
torture

of
At
of

(4)

or wantonly viIe,
The murders were outrageously
involved
in
that
they
inhuman
or
horribfe,
depravity of the mind of Petitioner;

(5)

or
The murders were outrageously
that
inhuman in
or
horrible,
to the victims
aggravated battery
and

(6)

The murder of
whil-e Petitioner
capital
another
Pittman.

wanLonly vile,
involved
they
before death;

was committed
Pittman
Kimberly
was engaged in the commission of
murder
of
Susan
the
felony,

(rd. )
On December 5,

2008,
21,

trlal

the

srnreme

corrrt

qanfan.es,
nf

ai rsl-

mc-narl .

court

2 at

Attach.

denied

affirmed

.Jeoree

o ' K F - I :a :_L. .
I ev
" :::1

death

it

?84

Ga.

qfFtFs

a!

also

sencence in

sentence

his
Id.

at

110-7I.

s'rrreme Cor:rc denieC

certiorarl.

O'KelIey

ss8 u.s. 1064 (2009)

light

v.

HaII,

for

and
two

of

other

to

have

been

Georgia

1aw,

capiLaf

not

On October

558 U.S.

counts

the proportionaliry

was

Petit.roner's

the

death

should

Pursuant

considered

(Doc'

The Georgia

1-8.)

counts

760-61.

Doc.

amended motion.

sentences

5,

2009, the

840'

for

rehearing

of

cases and

excess.Lve

petition

new

On January 8,

convi-ctions

those

because

a

1L-12;

at

1.)

3 at

Attach.

the

rever$ed

arson

that

disproportionate.

23 at

Petitioner's

che Georgia Supreme Court

concluded

(Id.

Petitioner's

Doc. 2I ,

5-15;

altholroh

PeEitjoner's

2 A 0 1.

for

a motion

5-1,5; Doc. 16, Attach.

22 at

16, Attach.

fifed

Petitioner

he amended on March 6,

whlch

triaI,

2005'

or

UniLed
writ

of

denied'

peLition
2010.

Superior

the

in

(Doc. 35,

(Doc. 36, Attach.

an amended petition.

(Doc.

(Doc.

re.Lief .
'i

lar]

filing
filed

a

t3.)

2,

o \ ? i-.ul u ,5 L - lr - J i a r r z
/ r -n
r-ha

qrrnromo
-.,.-

rn
Lv

hearircr

L

ao^rdi

^

rev.iew of

Iighr-

his
of

death
his

denied

the

Court

v.

appeaf

to

attempts

rTq

Chatman,

this

Court

dse vt ayl ^ n
u vl v

ya^flr6cl-c

-ha

motion.

(Doc.

i-l-lness

^ / 1 n u lu - ^ fL u F ^
vurr r r' L

appeal.
-\/

^nn.r-t.ni

and

requesti ng
Ltq

srrnn.)rl- i _o

sentence was constitutionally
mental

that

motion

a

- . \)//

rhe

Court,

this

(Doc.

denied

f.a-_ q

i
rr.,PrLPE"

in

Conduct Discovery.

Leave to

filed

has

1u ^ .. r I - ! ' ! rr

S 2254 petition

death sentence on direct

paFij-i^For

m^-i-r-

that

his

tor

2 0 1 1,

PeLitioner

Now,

to
2')

Further

See O'Ke]1ey

U.S.C.

28

a Motion

On February

31.)

6. )

Attach'

cause

408 (201s).

, 136 S. cr.

Peti:ioner

53,

Petitloner

2AI4,

(Doc. 53, Attach.

Supreme

Georgia

unavailing,

similarly

After

the

20L3.

9,

denying habeas

probable

of

habeas corpus re.Iief .

of

(Doc.

application.

27,

On January

certificate

fOr

20L5,

30,

March

were

ion

denial

B. )

Attach.

ann''r:at

appeal the
On

52,

conducted

On September

9.)

an order

entered

habeas court

state

2A13, the

21,

That court

Attach'

filed

Petitioner

201'2 and January

50,

Doc.

1 through

Attach.

38,

2AI1 ,

19')

on Auqu$t 27-29,

hearings

evidentiary

26,

On April-

9.)

Attach.

corpus

habeas

County on September 7,

Butts

of

Court

state

a

f1led

Petitionex

Accordingly/

t.\

.:

Atn

that

j
i . - \ - - r f rL" y
P!vI,v!-rr.-af

a

(Doc. 82.)
nraear-

In his

crri6161166

disproportionate

counry

an

jn

which

he

in
was

(Id.

sentenced.
hearing

with

Ultimately,

Petitioner

che

senLence was arbitrarily
his

evidence

(Id. )

shown during
death

Pecicioner's

Ehat

imposed due

disproportionally

and

charging

cases.

the

prove

woufd

who wilf

prosecutors

capi-tal

that

asserts

hearing

evidentj ary

of

in

illnesses

mental

defendants

witnesses

the practices

to

refated

testimony

offer

two

presenting

of

the

requests

Petitioner

Specifically,

purpose

the

for

4-6.)

at

to

(Id.)

severe mentaf illness.

AI{AJ.YSI S

STANDARDS GOVERNING E V I D E N T I A R Y
HABEASCORPUSCASES
The
I

federal

limirs

- - v. a ri
-

lh^

o

r-!.

La!!rr

Death

Effective

and

Antiterrorism

1 i r ,L.y

^€

FEDERAL

HEARI NGS

e'r irjenf

Penalty

ia-v

svfvutrLLu!y

hea-inos

that

habeas cases. AEDPAstates

to develop the factuaf
has failed
the appficant
Ii]f
basis of a clajm jn State court p.roceedings, the court
hearing
on the claj-m
shal1 not hold an evidentiary
un]ess the appl.icanL shohts that-(A)

relies

Lhe claim
(i)

6,^'

j- hF

h j\ r
v

nrerri nrrqlv
d

raLLucl!

lree-

tRl

rl-a

cr|rrarna

r - a r r Ar l a b l e ;
tJ!Eur

rcaLe

{ac-r q

sufficient
convrncfng
constitutional

of
r nde-l

to

LhaL could

-he

establish

noL

t-1-6r1q\

have
the

and

cl a ir

bV

^.-t,.1^^^^

error,

WaS

or

due diliqence,'
rzino

-h:r

an rr-r

rli qr:orrarad

nrevirrre-rz

exercise

law, made
collateral

of constitutional
to
cases
on

a new ruLe
retroactive
ra"i

\ -L-r/

on--

no

wot:l d

be

cLear
and
but
for
reasonable

Act
in

28

pursuing

1n

diligence

petitioner

S 2254(e) (2),

U.S.C.

I29L

(quoting

(alteration
465,

if

that,

evidence

in

hca-ino.
coufd

a

f e c l e r aI
an

enable

allegations,
federal

to

'conclusory

AlIison,

-on.-i

!EYsf!Es

.a-.1 -^

a

As

result,

hearing

by

1305 (11ch C-r.

1274,

a

a

such

1999)

hearing
factual
to

applicant

the

t'pet itioner
cfaims

speci fics.'

2010)

at

an evidenLiary

petition's

when his

unsupporLed

allegations

are
"

is

not

merely
Boyd

v.

(quoLing Bfackledge

431 U.S. 63, 14 11911)).

lla,rarrar
61.:.]ahr- : . r'

").

the
entitle

would

true,

evidentiary

an

ALLen, 592 F.3d
v.

if

prove

to

28

550 U.S.

Landrigan'

whether

consider

must

applicant

relief.

habeas

entitled

court

Id.

(11th Cir.

grant

to

"

relief.'

922

v.

oI

'profferledl

has

him to

whether

deciding

which,

the petitioner

a

may grant

sr-ri ctures

Lhe

eqserq Schriro

" [O]nce

court

federal

from

DepL. of

for

Sec'y
2012) .

to

shown

precluded

not

L75 E.3d 915'

Moore,

("In

-^^--n

rs9a!q

if

only

original));

(2007)

4 14

v.

a

have

who

Cir.

would entltle

true,

Hiff

are

diligence'

wrLlluuL

b-t

petitioners

(rrth

I29I

applicant

the

fcnqe

See Pope v.

'r!L'^"+

h- - - -1
- - e a. r ' ! l- 9

of

claims

hearing'

has escabLished

crri.lent iAr\/

rri nrr

However,

1211,

F. 3d

680

r rr nvd o4r -l r
u r v!

their

an evidenLiary

receiving

:n

1-ha

S 2 2 5 4( e ) ( 2 ) .

U.S.C.

Corr. ,

^f

found

have

would

factfinder
^] " r i rI Lfy r ,
t u

arren
hAari

h.\

.l

d - Lirn 9 cn r L
Jil I o rr
-^

an

in

r ' l o t i l - L ! ivo L s Lros
rne

dr

PsLf

aII

6\,,i'le-f

cases.
in-rz

ncari

c

Firsr.,
-o

when

entitfed

not
the
r

Court

nal-i1-innar

to
1s

an
not

epalrc

a procedurally

of

review

(findinq

no

to

result

in

Sec'y,

Dep't

\e+!+rrY

in^

a

cfaims

a

of

court."

sLdLd

a

petitioner

can

cause for

'failure

to

of

miscarriage
609 F.3d

1170,

Spencer v.

"
(11th

554

or

c]"aims wiff

iustice./
1179-80

faifure

the

the

consider

is

overcome

prejudice'

appeaL and actual

rr

-+ -f ^

-LaLs

Lt/(-ra !

.

has

'Fdera I

haheas

S 2254(d) (1)
Cullen

^^,r,{/ ^
J

been

a cLaim

v.

Petitioner's

if

result,

1. -y- . ,d
r r

Corr.,

"tilf

^^,rrl-

fimitation
state

fundamentaf
of

hearing

showing "both

20L4)

Cir'

when claim

evidentiary

Generally,
by

(flth

1232

2010)

Cir.

949,

951

nerits

by

overcome

Lhe

E.3d

2009)).

Second,
5 Lcr Ls

a

1226,

F.3d

on direct

that

Mrrhrmm:,,'l

(11th cir.

ct

only

default

. l p m - n s 1 - r a rI i n o i

/^if

.

defaufted)

the

raise

to

entj-tlement

procedurally
procedural

750

Prison,

Diagnostic

Ga.

Warden'

See Henry v.

claim'

defaulted

-..1.l
f urf

+hen

on

oeLil.ioner

the

Pinholster,
claims
Petj-tioner

on the

adjudicated

record

that

563 U.S.
were
must

musL

was before

170, 185 (2011) . As

adjudicated
be

that

abf e to

on

the

merits

show lhat

-^
r19

(1)

resufted
jnvolved

(2)

that
was based on an
in
a decision
resulted
of the facts in ligtht
unreasonabfe determination
court
in
i:he State
evidence presented
the
of
oroceeding.

that was contrary
in a decision
of,
an unreasonabl e appl ication
Federal
1aw, as determined
established
Supreme Court of the United States; or

to, or
cl early
by the

the

(11th

1295

a

to

entitled

based

n !reo { - ^ n l ar
P
J

nrnnnrf

-

i ^n^

arri dcnr-c

evnl
c^y

In

agrees with

Court

a

Srln-e"re

an

!o

hearing

evidentiary

fol Iowing

Eor the

that

contends

Government

offer

to

reasons'

is

Governmenl and Petit.ioner

the

CourL's

was

the

Court.

thLs

new evi dence before

Cao.oi

the

his

response,

entitled

not

is

rhar

of

review

I i f1,

unconstitutionaf.
Petitioner

ai ni no

Lurrrrr.Y

hearing

an evidentjary

requesLs

PetiLioner

.ln hj.s mocion,
Lw

court,

state

the

of

unreasonable

an

or

a

demonstrate

F
P E T I T I O N E R ' S R E Q U E S T O R E V I D E N T I A R YH E A R I N G

II.

'|-^

part

the

must

has

that

claim

record.").

court

on the state

solely

on

he

error

federaf-l-aw

fact

of

determination

on a

hearing

may be

petitioner

habeas

court,

state

the

by

estabfished

clearly

a

evidentiary

federal

adjudicated

been

(" IB]efore

2015)

Cir.

Wa.rden, 176 tr' 3d 1288'

Landers v'

see also

S 2254(d) ;

2B U.S.C.

not

Lhe

entitled

to an ev rdenr ia ry hearing,
First,

a

claims

to
-r,,

^ In ^ r 'L\ - t 1 L u rir f
rh
u JPv

n r i s oJ-ve-rvs t
f
yr

/rooc.1
\)

rJJl

tLa
!

ry

r r

n JJ
y qa q

e

recle-al

/ ^ 1 , ^ r - in ^
\YqvuJrrY

(aILe.rat j ons

courts

state

the

-i.fhl

s

Dicard

internal

nlaime

mrrqr- hF nresented

a lerL

chem that

Lhe

n-n.:-

17

"to

the

r u J "i . n g u n d e r

10

,1

.f

c

2AA,

275

omi tred) ) .

courts

review

Il

210/

U.S.

marks

State

r;i61,ari'rn<

E1?

u^nF',

4A4

quoLation

tcn.

federaf

State

the

in

vjolated

is

properl-y

to

present

give

to
a1

Connor,

v.

:-'

and

-

order

..rre-f

order

'tfairly

must

in

:r s
q nr r l

lun ,n rr r
} v

Tn

defaulted.

peciLioner

a

cla im,

cLaim

Petitioner's

that

finds

procedurally

and

unexhausteo
exhausc

Court

the

the
iLS

365

(1-97t)

Federal

a manner to
a

federal

right.

constitutionaf
App'x

presents

petitioner

necessary

to

state-Iaw

claim

for

t j-me before

his

that

di sproport i onat e

his

arqued that

the

At

More

on

unreasonably
other

of

importanrl y,

review

his

did

proceeding

was

actuaL method used by the
proporcionaJ icy

point

no

senLences

the

to

compared

ics

conduct

ro

supporL

sentence

defendants '

situated

sjmilarly

Court

that
when

to

habeas

state

that

time

fac!s

develop

his

first

the

for
first

disproportional.

through

or

argue

Petitioner

never

ro

2004))'

the

is

this

Sec'y

Georgia Supreme

raised

fact,

was

sentence

appeal

direct

is

Ls even attempting

Peritioner
cfaim

In

Court.

this

1344 (11th Cir'

being

facts

the

K e l - fe y v '

to the

review

proportionaLity

Court's

850 (quoting

a

challenge

Petjtioner's

case,

if

'somewhat sirnifar

even if

3 1 1 E . 3 d 1 3 1 7|

the Dep/t of Corr. ,

\alf

with

court

at

Id.

"

at

'rnerely'

satisfied

or

cfaim'

was made.'

not

"is

2'13 F.

Corr.,

Duncan, 513 U'S'

lciting

state

the

the

support

In this

2008)

Cir.

requirement

this

365-66) . Notably,
the

(11th

849-50

847,

of

Dep't

Pearson v.

"

Peticioner
Supreme

Georgia
hi s

of

death

sentence was improPer.
In

facts

develop

a

and the

death

Petitioner

to

supporL

mandated

is

defenoanl
of

claim,

crime

sentence.
maintains

his

under

Petitioner
co raise

he was under no duty

appeal

Court

his

defense of

claim

Georgia

contends that

a proportionali
because the
faw

to

on direct

uy cJain

Georgia

consider

Supreme

both

when conducL-Lnga proporLionality
See 0.C.G.A.
he

that

r

was

11

S

17-10-35 (c) (3) .

barred

f rorn

or

the

review
Further,

raising

any

n F / - \ n , . - Fn n F I i ' v
i

J

:
L-d .

hi q

Tn

q r . n r pur, rLau
'

f.aa-ai:

Juy'

After

. .v r yLl
v u!

r-hal lenoino
inn:

I

conducted

court

to

used

,.1 snrnnnrrinnAre
i

situated
rJ rrrn,r
nIh a !i r
L o

hic
t'r

LrrY!

the

rev j ew or
Court's
Ceorgia
n r-v.v. r)v' L/ j . r o
P

correct-

review.
Supreme
l-ha

mt -hnrl

staLe

qj-^fF

is,.d

courts
any

'lrys

nrnreerji

fiahcas

hv

I he

p o t - e n ti a l

Because Petitioner
Court
rdil- h

.ii d

-'\nn..r-r'n

t2

i -'/

e

proceedi ng
was

i nnFl:

waS

Of

At

no

review

point

raise
.l-

a^

his
AS

opporLuni ty

challenging

'O

SimiIarIy

Lhe Georgia

rev Lew/

was

senLence

c ,nrarre

an

the

fundar0ental.Ly

Petitioner

n

co:rduct-ed its
l-ha

is

crimes '

qiven

e rro ri
is

Whil

method that

SentenCeS

Geo -/ri:

i^rere never

by

sentence

hi s

simj-1ar

who committed

nt -

pc''

the

sentence

f 1^a

vvrlryq+

Lhe

habeas
hjs

to

l-h^i.

^ ^ n ^ r r a , - sl
v

whe.

' l^o

I anna

his

which the Ceorgia Supreme

way in

death

St

support

n^i

r-:scc

A challenge

his

f if

Sencence.

rha

that

cifuate.i

ih.

res

unpersuaded

state

his

r.r'ino

the

nh r'l

sfalc

in

similarlrr

review,

is

n"i sspc

lv

of

and Lhat

death

his

Court

whol

barred

review

defendants

-onra

resLrIL,

its

the

.ra"a's

than

dlfferent

g u L t L I l , j

.\j-har

ro

1acLs

17 porri -wed

wh ir:h

f roro chal lenginq

noL barred
Court

i,,r

'S

ne-'Tron

habeec

i^'a djsproportionate
s

review/

been

I

because any

doclrjne

under the

Lo devel op

able

irn-^,nor-

rha

!r'9!LtY

Lrrurr

Federa

+,'r|/l

oc- i- 1.\nAr m^\/ have

n r n n n r l -L

is

he

. a -r . r r l- L . ue nrf L m L
u
v u

r

PIUPU

h is

carefu-l

Dal i f i

ir.)m

sEate habeas proceeding

his

deaLh sentence

LhaL his

sEvtYrq

l/ipr^r

thar

opporruniLy
claim

in

wouLd have been precluded

such claim
i r u\-] . ri i n :ar
,,. L

-laim

but
the

the

a

to

S u pr e m e
way the

fa L-ed
method

co
USeO

to

cLaim

Petitioner's

review.

proportionality

that

conduct

remains unexhausted.
Not
is

is

only

state

court

state

faw

procedurally

as

claims

unexhausted

to

determination

futiIe."

Turner

v.

Crosby,

(quoting

Bailey

v.

Nagle,

prrrqrranj-

l .v. )
L

d

L a-rLs-c^ D ^
lr
J
r

5LctLs

procedurally

used

method

by

^F.'\.,,\- i nn:r i-rr
procedura

I

are

-oview.
by

his

l-':rrerl
qf'.wi ro
rrrvw!"Y

federal

'r r! ovr, ! ,

in

corl

mak ing

Ls
: i Inl

ol-

As a resuft.

carrse

For

Petitioner

^n r-''nnr.lrtrni\/ lrl raise
f

he
:-rJ

the

v
y

1999)).
-aiSed

to

In

this

state

court

in

co

< h o r ^ r ! i: nYn
l

case'

in stat-e court

r:l a ir

s:me
ar:rrral

for

the

13

in

f ederal

nretr rcJice

first

claim

f rom

is

the
its

r.tr r-p

See Baifey,
Lo

proceduraJ ly

court
the

be

overcome
n.a-i

r:f

JIlvw

this

to

conducting

possible

in

case'

habeas corpus petil-j oner who fail"s

has waived his
it

t

be

2003)

Cir'

considered

9-14-51.

S

i L

cLaims properly

ns r r r s r !rr iY l o
us
y !

n-one-l

Plvyur

Supreme Court

WhiIe

L'l2 F.3d aL 1302 ("A state

rn-

rLvL

and

waived

has made no such argument in

Petitioner

raise

--A

any challenqe

Georqia

the

f l^--

O.C'G.A.

raise

defau LL

1281 (1lth

L-LaJ-lLlD

^tt t i - t i o n
P

not

would

exhaustion

3 3 9 F . 3 d 1 2 4 1,

a

from

c1ear

at

attempt

^r -i*^

ldw,

defaulted.
did

Petitioner

is

it

treat

absent

I-12 E.3d 1299, 1306 (11th Cir.

r -,,

r : c !.yr! .u . . r i :
Je-

if

effect/

that

future

any

that

even

defaulted,

cfalm

'tmay

courts

Federaf

defaulted.

proceduralty

also

his

but

unexhausted,

claim

Petitioner's

absent
default.

a
") .

and cannot be given

time before

thls

Court,

show that

he is

in

admit new evidence
meriLs

the

r . . e ra ^ . i
the

fLtr

Lv

in

resulted

a
of

the

state

r'la:-t',

was

of

state

the

an

invofved

or

federal

an

on

based

Iaw,

Or

unreasonable

the evidence

presented

ln

Pinholsler,

563 U.S.

at

S 2254(d) ;

28 U.S.C.

court.

Lhat

."-abIiShed

light

in

facts

to

contrary

that

decision

determination
the

af

annl icer-i^h

uI/yrrvuL

prove

to

able

this

circumvent

may be abfe to

is

he

either

was

deci-sion

rrrreaqnnahle

if

however,

requirement,
court

A petitioner

Id.

185.

d e v e Jo p e d a t

record

the

to

Iinited

is

at

U. S.

563

to

decided on

a claim

refute

to

permitted

not

typica-l1y

Pinholster,

court.

ner iti oner

court.

state

is
court

federal

state

a

by

petitioner

a

Under 28

hearlng'

an evidentiary

to

unable

be

stiII

would

of

merits

the

consider

Petitioner

however,
entitled

S 2254 (d) ,

U.S.C.

to

were

Court

claims,

Petitioner's
to

the

if

Even

185-86.
In
the

this

presented

of

the

whether

consjder

result,

determination

violated

is

the
clearly

not entitl-ed

the

court.

state

Georgja

facts
As

a

in

light

of
this

result,

federa.l

an evidentiary

1A

argument
based

Supreme CourL's

established

to

was

decision

Court's

in

make any

does not

Petitioner

Suprene

Georgia

unreasonabfe

review

case,

the

on

an

evidence

Court

must

proporlionaliLy

-Law. After

hearing.

that

carefu.l

In

his

Court's

detailed

in

Georgia,

428 U.S.

the

Furman v.

of

application

1?q-An

Tn

e

n o r ^ r l rr r

r o r . : a \ . / :r -

n r r - r ^ c c dj r n q .
a^,,
rrs q u r ,

r a r n A rr ll L
LsrL's

^ r a c J U - t, an
s

P!

Harris,
rp:snri

was not
st ^fa'

lal

465
n,"

<urv,va nLa e l - a r ' l
J
vJ Us

lmportant

o'
r rh u L
L - :r

'ni

FFd

.ne

t- h. c
r v

( 1 9 8 4)

ln

addirion,

^rnh^r-

y!vvv!

the

ia:l-

s

i'rn:l

I vrru+tel

death

l-97. Based on the holding

Lhe CeorgLa Supreme Courl

Lr

i-rr

penalLy

i-'r

the

leasc
ntli

agaIIISL

|

be

en-oe-"

SiX

PulIey

v'

hofdi no
just

Lhree
rerf

Georgj a.

clearly

the

crimes,

r-r rnrrncl

Gregg, Petitioner

violated

"bifurcaLed

procedures.

rorriow

the

r - ' r r -r t r s - a n r -e

inn

at

in

tl^a1.

196-98. After

at

(discussing

- a ^,ro .
s - f r^s g , . -L ]u

in

Ya

U.S.

revieWed

orqrrrin,r

ld.

that

"o

Co]r-l

capital

penalty

45

-^r]
r ir^ ^ r r d r
.r -t
dOO,L

implemenEation of

+if

ur-sV9,

created

ol

L'Lt rr

death

Ceorgia's

credo) ,

..,r

F.ratr:\r:l

rf

l;u'

response

a nrq r r! r : rr o r Y
r
ur rs

r eu J
q

Sl|nrame

fbat

number

-F:cl-

3 1,

dPPrr

appi ied.

nror.a''lrr -cc

e

----t^'

)v

Sl-^l- es

ly

6.6naiA^r--ra-

U. S.

n nr-ed
y !r v v ! u q t

n !rvo !cve !d J r r e S
r
P
u
q !

limited

l-ha

rr
! ! s r rrriJ

arbitrarj

^l-

upheld

lusi-ices

f

imnlemenl-ed

rh:t

^n.l

-,

a !r! lrl i f
u

+r"PtsrrLsIrrsv

hc

!svtswt,L9

nrrr
l-hc

credrr

deach penalty

at

r ^ r ,q

nrrni qhmani-

Te:vo \a r u i : r
a
u
- Jf

:n^l
r r t r y r s^r n t s r r L s a r ]
r^rf
v

In

310.

at

408 U.S.

arb-itrary

Ehe

Iimir-

co

of

capital

altowing

states

that

penafty.

--^F
q
- -rd L s 5

F.,rrm.h

an

death

the

as

law

Supreme Court

Furman, the

In

proced;res

impl ement

punishmenc

-.hir-:l

( L 9 16 ) .

required

States

United

Georgia

408 U.S. 238 lI9'12) t and Gregg v.

Georgia,

l-53

the

estabfished

c.learly

violated

review

Supreme

that

contends

Petitioner

briefing',

annea

| l-.^
Lne

and
ices

l.

WaS

r !U:t
d - l - - 1I a ] . y

Gceggt 428 U.S'
maintains

established

that

lederal

Iaw when jr-

tailed

death sentence.

of his

Court

U.S.C.

2254 (d)

S

demands that

^ * u^o . r i ^ . c
q,, - i L

the

courl

state
has

on

362,
).

When

,

L .

!262

(quoting

hcrrnnri

"

(quotlng

Td.

consider

:n17

v.

Harrington

v.
and

whether

Lacking

nr-ssibiI

of
the

than

Taylor'

e

the

Ln justi

i'v

a{

Richter,

529

afterations

Supreme

Georgia

was "so

review

concLusion

on a question

Wllliams

quotations

the
must

a

at

this

indistinguishabl

macerially

(internal

Court

and

r csrLtcrr

of

the
and

'neel

nnlv

a case differently

set

a

proport Lonality

Courr's

arrives

of

citatjons

nen

inner

Supreme Court

the

reviewing

this

determination,

court

decides

(2000)

4L2-13

PEUtL

which

benefit

(internal

i-

a

state

'1
52 E.3d at

Pope,

onitted)

5d9

the

reached by

that

to
if

or

facts."

ur

'if

standard

Supreme Court.

U.S.

r .IrL+ r Li l*d-L c -1 y r
r^ L
U
f

the

28

t rrvl-1., ,
r i^
f)

rulings,

state-court

181

at

U.S.

563

^-.t

be given

decisions

point,

As a starting
meet

to

evafuating

state-court

^ m i L i- aE l \/ .
r - .u

opposite

a
for

Pinholster,

doubt."

hiqh

"difficult

standard

deferentiaf

agree.

does not

is

However, this

Ia,i

review

conduct- a propon-Lonalicy

properly

to

Court's
Georgia
ficatjon

{ai r--n inded

562 U'S.

86,

103 (2011)) .
T.ta

Lrls

cro^..r

n L v^r - cu. !l u o r r c q
y cv
l]

rhe arbitrary
98.

+ hF

sln-eme

llan-rri
ULU!Y!e

a

imposltion

However, the

court

Corr-r

h:d
rrsv

oI

'^

!-+qv!

the

never

rhe

n'prF

i-

+,1

of

United
n-^te.l-

death penaILy.

decided

that

StateS

considered

.lFFpnda-f

A2B U.S.

Georgia

s

ffOm

aL 196-

was required

to

a proporcionaliLy

conducr

and

45

Stevens

lin

Arrrlarc' l-h.f

starrt-e

In

n-nr'.'-t in-:l

q,rr'\rona (-.'rr'

nr lL sc r:j r l r r
u
L

court

i l-rr rtr\/iew

clcf i ner-l

46\

aL

U.S.

Unired

sneci fi r-

has

States
- eri a

eri

a

jt

a

however'

required.

constitut-ionalfy

Ehe

to

Even

44.

never

certainly
l artar

that

has

States

right

constitulional

p r 4 lt v ) l' e \ / '
r e
t

1t

constj ruLional

United

the

was

of

an\/

of

not

rorri

arri

n.r

must consloer,
In

Light

federal

i n

:-hr--arr'v

heinous

the

nature

did

r.r

not

Georgia
of

cnqrrrF

ri6:+h

tl^o

r.an:

cases resufted

\/iolafe

anv clearlv

is

viofate
only
rhar

any
that

in

a death

established

L'7

and

sentence.

federal

408

law.

U.S,

aC

not

310.

that

review

In

the

considered

found
That

certain
are

defendanLs

careful Ly

crimes

have

states

Georgj-a

established

clearly

c-,rrman,

Supreme Court

the

that

cLear

r ":1a o i t a l
-

t17

Petitioner's

simiLar

it

and Greqg,

.law mandates

ol ace

o,ven

case,

review

The

law.

n fr ovrL-Ee u l L J r c q
v drr
t,

Pulfey

of

Suprene Court/ s

Lhis

no

is

there
rev icr^r
.

n r ov hvo r t i o n a l i t v
P L

rJr

rha

Supreme Court

did

t.hat without

passeo

have

m e a n in g f u l

of

Justices

those

was so critical
not

would

the

fact,
that

clear

been

.

required

is

PoweII

Stewart,

some form

that

PuIley,

see also

Justi-ces

of

opinion

.c,rnnarative review

Ganroi a

muster.").

the

G _ 1 e g g 1s u g g e s t e d

review

appellate

r-ho

("Whi]e

at

465 U.S.

See id.,'

review.

other
dld

not

Because Petitioner

overcome the

cannot

created

hurdfe

is

Petltioner

claim.2

on this

hearing

to an evjdenLiary

not enLit.leo

S 2254 (d) ,

by

coNcr,usroN

hearino

erri.lerf iarv
caarai

of

qU P r u - 'aLm a
rl -rr .
J

>

rsu!9-q

death

his

CL.Jr! r r r l L
i
v

mnroner'l

Motion

Evidentiarv

Hearins

As

( D o c'

Hearing

Respondent's

rr

rrLtyrvyq!tJ

sentence.3

Evidentiary

for

consi

Ruling

-t{'
/-

f he

nrnnnrl-

DENIED.

i ora

Motion

an
the

l il- rz

for

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AL,T!TI|--lUTI,

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Petitioner's

on

to

thar

claim

Petitioner's

is

82J

entitled

not

any

cJored

uvrLJ!

resuft,

a

(Doc. 85) is

h
S O O R D E R EtD j s

devefop

further

to

is

Petitioner

reasons.

foregoing

For the

Motion

for

'
D I S M I S S E DA s M o O T

daV of March 2018

WILLIAM

MOCRE. JI.

T,

U N I T E D S T A T E SD I S T R I C T C O U R T
D
SOUTHERN ISTRICT OE GEORGIA

' Because this Court has found that Petitioner
does not meet the
requirements of 2254 (d) (1), the Court does not need to consider
Lhe requ irements deLai-Led in 28
could sarisfy
whether PetiLioner
pf rspn '
U.S.C. S 2254 (e) (2). See French v. Warden, Wlfcoxjltate
190 E.3d 1259, 1265 n.3 (11th Cir. 2015).
I In his brieting,
t-hat he ls not requesting
PetiLioner
clains
review of his
this
CourL conduct a new proportionality
thar
suggesrs
Lhe langJage in his brieting
sentence. However, some of
this
Petitioner
is hoping that
that
To the extent
otherwise,
rev iew
Courr wil I essenLia I ity conducl a second proportionaliLy
is
deni ed.
Federal
request
this
sentence,
PeL-tj oner's
of
to
conduct
appropriate
forum
not
courts
are
the
district
1 6 L F . 3 d 1 2 13 ,
MiILs v.
SLnglecary,
reviews.
proporti ona ity
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