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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rN FitIu u.$. t]tsiRtcT c0uRl sAv.\$HAH 0l!,. 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 -tt.t r - . 1^ ^ AL,T!TI|--lUTI, -LII 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 1)R2 /11f h air :r^r^-ri:,ar\/ :rv nrrv n v ' L t v ,fr.u { L L .n r a nor P P } refused 'lggR) . / vrv-r n! l-urv -r l \ r /Jv1 -pyr a., to entertain" r r e li n . r lhar characterized -ho rhr nh ). 18 nai l-i/-\na-'< -l^i'rq a requesr ".liStriCt COUrL as hiele for a COfrecLly

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