Lynch v. Hall, Jr. et al
REPORT AND RECOMMENDATIONS denying 1 Petition for Writ of Habeas Corpus filed by Reginald Lynch. Objections to R&R due by 6/22/2017. Signed by Magistrate Judge G. R. Smith on 6/8/17. (jlm)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
HILTON HALL, Warden,
and GREGORY C. DOZIER,
Department of Corrections,
REPORT AND RECOMMENDATION
Reginald Lynch, currently incarcerated at Coffee Correctional
Facility in Nicholls, Georgia, seeks habeas relief from his Chatham
County conviction for murder and possession of a firearm during a crime.
Doc. 1 at 1-2; see also Lynch v. State, 291 S.E.2d 672 (Ga. 2012)
(affirming criminal conviction).
He has exhausted his state court
remedies, having challenged the effectiveness of his appellate counsel
through a state habeas petition. Doc. 1 at 3 (after a hearing, the state
habeas court denied his petition on the merits); id. at 5 & 7 (the Georgia
Supreme Court denied his application for a certificate of probable cause
to appeal). He now seeks habeas relief from this Court, id. at 5, 7, and
the State opposes. 1 Doc. 7.
“‘Reggie Lynch, shot me.’” That’s what victim Marcus Givens told
Detective Dantzler when Givens was discovered lying mortally wounded
in an alley. Lynch, 731 S.E.2d at 674. A second officer, Star Corporal
Angel Grant, also heard Givens identify his shooter.
witness, Tiffany Davis (a relative of both Lynch and Givens), explained
that on the day before, the two men had argued and “Lynch [had] told
her that he was going to kill the victim.” Id. Finally, Givens’ cousin
Leisha Givens testified that Givens had told her at the scene that Lynch
had shot him, and that she had seen Lynch leaving the scene of the
The Georgia Department of Corrections, through the Attorney General, seeks to
intervene in this case as a respondent. Doc. 4. Lynch is incarcerated in Coffee
Correctional Facility -- a “private prison” operated under a contract with the Georgia
Department of Corrections. Id. at 2. Rule 2(a) of the Rules Governing § 2254 Cases
in the United District Courts provides that applicants in “present custody” seeking
habeas relief should name “the state officer having custody of the applicant as
respondent.” There “is generally only one proper respondent to a given prisoner’s
habeas petition,” and this is “‘the person’ with the ability to produce the prisoner’
body before the habeas court.” Rumsfeld v. Padilla, 542 U.S. 426, 434, 124 S.Ct.
2711, 159 L.Ed.2d 513 (2004). When a petitioner is incarcerated and challenges his
present physical confinement “the default rule is that the proper respondent is the
warden of the facility where the prisoner is being held, not the Attorney General or
some other remote supervisory official.” Id. at 435 (cites omitted). However, because
the warden of CCF is not a state officer, the chief officer in charge of the state penal
institution (the Commissioner of the Department of Corrections) is the proper named
respondent. Rule 2(a); Sanders v. Bennett, 148 F.2d 19 (D.C. Cir. 1945). Accordingly,
the Commissioner’s motion to intervene (doc. 4) is GRANTED.
shooting in a white truck.
Based on that evidence, the Georgia
Supreme Court affirmed Lynch’s conviction. Id.
Lynch argued to the state habeas court that his appellate counsel
was deficient for failing to raise on appeal several defects in his trial
Doc. 1 at 3.
In particular, appellate counsel
should have argued that trial counsel erred in failing to object, on
Confrontation Clause grounds, to the testimony that Givens identified
Lynch as his shooter. Also, appellate counsel should have challenged
trail counsel’s failure to object to a detective’s testimony that invaded the
province of the jury. Doc. 1 at 3. The state habeas court denied relief,
and the Georgia Supreme Court denied him a certificate of probable
cause. Id. (habeas denied); doc. 11-8 (denial of certificate of probable
Lynch retreads those state-habeas grounds in support of his
current petition. Doc. 1 at 5, 7. The State opposes, contending that the
judgment of the state habeas court 2 is entitled to deference under
Currently pending before the United States Supreme Court is the issue of whether
the Court must examine the state habeas court’s decision or the Georgia Supreme
Court’s decision denying the certificate of probable cause, for deference purposes.
See Wilson v. Warden, 834 F.3d 1227 (11th Cir. 2016) (holding the Georgia Supreme
Court’s denial was a decision on the merits for deference purposes), cert. granted sub
nom. Winston v. Sellers, 137 S.Ct. 1203 (2017). Regardless of the outcome of Wilson,
28 U.S.C. § 2254(d). Doc. 7-1 at 4.
The Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) bars federal courts from granting habeas relief to a state
petitioner on a claim that was adjudicated on the merits in state court
unless the state court’s adjudication:
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d).
“AEDPA’s standard is intentionally difficult to meet.” Woods v.
Donald, 135 S. Ct. 1372, 1376 (2015) (internal quotes and cites omitted).
“[A] state prisoner must show that the state court’s ruling on the claim
being presented in federal court was so lacking in justification that there
was an error well understood and comprehended in existing law beyond
the Court may look to the state habeas court’s decision for the purpose of § 2254
deference: “[b]ecause it does not matter to the result, and to avoid any further
complications if the United States Supreme Court disagrees with [the] Wilson
decision,” the case will rely on “the more state-trial-court focused approach in
applying § 2254(d).” Butts v. Warden, 850 F.3d 1201, 1204 (11th Cir. 2017).
any possibility for fairminded disagreement.” Harrington v. Richter, 562
U.S. 86, 103 (2011); id. at 102-03 (federal habeas review exists as “a
guard against extreme malfunctions in the state criminal justice systems,
not a substitute for ordinary error correction through appeal.”); see also
White v. Woodall, 572 U.S. __, 134 S. Ct. 1697, 1702 (2014) (the
“unreasonable application” of clearly established federal law under
§ 2254(d)(1) “must be objectively unreasonable, not merely wrong; even
clear error will not suffice.”); Lockyer v. Andrade, 538 U.S. 63, 75-76
As to the “facts” prong, the inquiry focuses not on whether “the
determination was unreasonable -- a substantially higher threshold.”
Shiriro v. Landrigan, 550 U.S. 465, 473 (2007); see Miller-El v. Cockrell,
537 U.S. 322, 340 (2003) (it is not sufficient that “the federal habeas
court would have reached a different conclusion in the first instance.”
Rather, the state court’s decision must be “objectively unreasonable”).
§ 2254(d)(2) when the direction of the evidence, viewed cumulatively,
was “too powerful to conclude anything but [the petitioner's factual
claim],” Miller-El v. Dretke, 545 U.S. 231, 265 (2005), and when a state
court’s finding was “clearly erroneous,” Wiggins v. Smith, 539 U.S. 510,
528-29 (2003); see Landers v. Warden, 776 F.3d 1288, 1294 (11th
AEDPA’s requirements reflect a “presumption that state courts
know and follow the law.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002)
(per curiam). “When reviewing state criminal convictions on collateral
review, federal judges are required to afford state courts due respect by
overturning their decisions only when there could be no reasonable
dispute that they were wrong.”
Woods, 135 S. Ct. at 1376.
especially true for claims of ineffective assistance of counsel, 3 where
AEDPA review must be “doubly deferential” in order to afford “both the
To prevail on a claim of ineffective assistance of appellate counsel, a habeas
petitioner must establish that his counsel’s performance was deficient and that
the deficient performance prejudiced his defense.
See Strickland v.
Washington, 466 U.S. 668, 687 (1984); Brooks v. Comm’r, Ala. Dep’t of Corr.,
719 F.3d 1292, 1300 (11th Cir. 2013) (“Claims of ineffective assistance of
appellate counsel are governed by the same standards applied to trial counsel
under Strickland.”) (quot[es] omitted). Under the deficient performance
prong, the petitioner “must show that counsel’s representation fell below an
objective standard of reasonableness.” Strickland, 466 U.S. at 688.
Rambaran v. Sec’y, Dep’t of Corr., 821 F.3d 1325, 1331 (11th Cir. 2016). Prejudice is
shown if “‘but for counsel’s unprofessional errors, the result of the proceeding would
have been different.’” Rivers v. United States, 2016 WL 2646647 at * 1 (S.D. Ga. May
9, 2016) (quoting Strickland, 466 U.S. at 687). That requires a “substantial,” not
just “conceivable,” likelihood of a different result. Harrington, 131 S. Ct., at 791.
state court and the defense attorney the benefit of the doubt.” Burt v.
Titlow, 571 U.S. __, 134 S. Ct. 10, 13 (2013) (quoting Cullen v.
Pinholster, 563 U.S. 170, 190 (2011)).
Finally, sandbagging is prohibited. Petitioners must submit their
claims to the state courts first. New claims advanced to a federal habeas
court but not to the proper state court face dismissal on exhaustion, if
not procedural default, grounds.
Appellate Counsel Was Not Ineffective
Lynch contends appellate counsel was ineffective for failing to raise
on appeal his claim that (1) trial counsel deficiently failed to object to
Confrontation Clause-violating testimony from the lead detective; and
(2) trial counsel failed to object when the detective testified that the
evidence pointed to Lynch. Doc. 1. These arguments were raised before,
and addressed on the merits by, the state habeas court. See Doc. 8-2
(petitioner’s brief to the state habeas court), 11-7 (state court decision
denying habeas corpus relief), & 11-8 (Georgia Supreme Court’s denial of
application for certificate of probable cause).
The police found Marcus Givens lying in an alley suffering from
multiple gunshot wounds. He “appeared to be in serious pain, and his
voice sounded gurgled,” apparently due to blood in his lungs and throat.
Lynch, 731 S.E.2d at 674. One of the responding officers asked for his
name, and Givens responded “Reggie Lynch.” Id. He clarified “Reggie
Lynch, shot me” and repeated this statement at least three times before
succumbing to his injuries.
Id., see also id. (one responding officer
initially thought he said “Reggie Leck” because his voice was so garbled
by his injuries).
Lynch argued in his state petition that Givens’
identification was “made while two police officers were responding to
[his] shooting. There was no evidence presented at trial that there were
any steps taken that indicate the police believed there was an ongoing
emergency . . . [Givens’] statements to the police were therefore
testimonial and should not have been admitted.” Doc. 11-4 at 6-7; see
also doc. 1 at 5 (“This statement was testimonial” and thus did not fall
under a hearsay exception). That argument fails.
The state habeas court held that:
[Appellate counsel] did not raise an issue about trial counsel’s
failure to object to the admission of the victim’s dying declaration
at the crime scene to two police officers. “At the scene, Detective
Dantzler asked the victim for his name. The victim responded,
‘Reggie Lynch.’ Detective Dantzler initially thought that ‘Reggie
Lynch’ was the victim’s name, but the victim corrected, ‘Reggie
Lynch, shot me.’” Lynch, supra, Division 1. A dying declaration
such as the one given by the victim was admissible as an exception
to the hearsay rule under the res gestae exception under former
O.C.G.A. § 24-3-3. Morgan v. State, [564 S.E.2d 192, 224-25 (Ga.
2002) (a gunshot victim’s deathbed identification of his shooter to a
questioning officer, when he believes that he is about to die, falls
under either the O.C.G.A. § 24-3-6 dying declaration hearsay
exception or the former O.C.G.A. § 24-3-3 res gestae (spontaneous,
contemporaneous statement) hearsay exception)]. Lynch contends,
citing Crawford v. Washington, 125 S. Ct. 1354 (2004), that trial
counsel should have objected on the ground that the dying
declaration violated the Confrontation Clause. However, this court
agrees with the warden, citing Sanford v. State, [695 S.E.2d 579,
583 (Ga. 2010) (inculpatory statements made several hours before
death in response to police questioning admissible under both dying
declaration and res gestae hearsay exceptions, where victim
recognized the “dire nature of her injuries” and responded to
queries “shortly after the shooting, in the midst of the chaos of the
crime scene, and while awaiting emergency treatment.”)], that the
dying declaration was nontestimonial because the circumstances
objectively indicate that the primary purpose of the interrogation
by Detective Dantzler was to enable police assistance to meet an
ongoing emergency. Glover v. State, [678 S.E.2d 476 (Ga. 2009)].
Accordingly, this trial court concludes that trial counsel did not
perform deficiently by failing to make a Confrontation Clause
objection and that appellate counsel did not perform deficiently by
“winnowing out” an argument that there was a violation of the
Doc. 11-7 at 2-3.
The state habeas court’s rejection of Lynch’s Confrontation Clause
claim is perfectly consistent with, not an unreasonable application of,
clearly established federal law as determined by the Supreme Court. In
Michigan v. Bryant, 562 U.S. 344 (2011), the Court applied its
Confrontation Clause precedents to a set of facts almost identical to
those presented by this case. There, as here, officers encountered a gunshot victim in a public setting (there a gas station parking lot, here an
alley) who appeared to be in great pain and who spoke only with
difficulty. Id. at 348-49. The victim in Bryant, as in this case, identified
the man who had shot him in response to the informal, on-scene
questioning by the responding officers. In both Bryant and in this case
the whereabouts of the armed perpetrator was unknown to the police.
The Bryant Court concluded that because the circumstances surrounding
the police-victim interaction “objectively indicate that the ‘primary
purpose of the interrogation’ was ‘to enable police assistance to meet an
ongoing emergency,’” id. at 349, 377-78, not to gather evidence for trial,
id. at 358, the victim’s statements did not constitute “testimonial
hearsay” that implicates the Sixth Amendment Confrontation Clause.
See id. at 353-54 (the Sixth Amendment right to confront “the
statements” -- solemn declarations made for the purpose of establishing
some fact for later use at trial -- not to “nontestimonial” statements
made in response to police questioning whose chief purpose is to discover
“what is happening” during an emergency situation rather than “what
happened” on a past occasion) (citations and internal quotations
omitted). 4 The concept of “ongoing emergency,” the Court held, is not
confined to the crime victim but also extends “to a potential threat to the
responding police and the public at large.”
Id. at 359, 363-64.
question asked of the victim in Bryant, like those asked by the officers in
this case, were designed not to elicit “testimony” for later use at trail but
to enable the police to assess the situation and discern whether there was
a continuing, ongoing danger to the community at large. 5
But even if this Court were to find the victim’s statements to be
In Bryant, the police asked the victim “‘what had happened, who had shot him,
and where the shooting had occurred.’” 562 U.S. at 349. This questioning, the
Michigan Supreme Court concluded, focused on establishing “the facts of an event
that had already occurred . . . not to enable police assistance to meet an ongoing
emergency.” Id. at 351 (citation omitted). The United States Supreme Court
disagreed, finding that the questions asked of the victim “were the exact type of
questions necessary to allow the police to assess the situation, the threat to their own
safety, and possible danger to the potential victim and to the public.” 562 U.S. at 376
(cite and quote omitted). In the present case, the police did not have to ask the
victim what had happened or who had shot him, for he blurted out his assailant’s
name when first asked to identify himself. Therefore, this is an even stronger case
for finding that the “primary purpose” of the interrogation was to address an ongoing
emergency than Bryant itself.
The Bryant court recognized that both the police and the declarant may have
“mixed motives,” for the purpose of the interrogation may be “both to respond to the
emergency situation and to gather evidence” for later use at trial. Id. at 368
(emphasis in original). But where the primary purpose is to meet an ongoing
emergency, the out-of-court statements are deemed to be nontestimonial and
therefore beyond the scope of the Confrontation Clause.
testimonial in nature, the state habeas court’s decision was nevertheless
neither contrary to nor an unreasonable application of clearly established
federal law. The Supreme Court has never held that dying declarations
-- even if testimonial -- are subject to the Confrontation Clause. In fact,
the Court has on more than one occasion suggested that dying
declarations fall within one of two historical exceptions to the Sixth
Amendment’s bar against testimonial hearsay. Bryant, 562 U.S. at 351
n. 1 (noting that while it had not had the opportunity to rule definitively
on the matter, its prior opinions “suggested that dying declarations, even
if testimonial, might be admissible as a historical exception to the
Confrontation Clause.”); Giles v. California, 554 U.S. 353, 358-59 (2008)
(recognizing as a historical exception to the Confrontation Clause the
common law principle allowing the introduction of out-of-court
testimonial statements from a witness whose absence the defendant
wrongfully procured, and suggesting that the common law’s allowance of
unconfronted dying declarations constitutes a second such exception);
Crawford v. Washington, 541 U.S. 36, 56 n. 6 (2004) (referencing the
common law practice of allowing the admission of dying declarations as
an exception to a defendant’s confrontation right, but declining to decide
in that case whether the Sixth Amendment incorporated that historical
exception). Many lower courts have also recognized that the Supreme
Court has “hinted that dying declarations may fall within an exception to
the constitutional bar against testimonial hearsay.” Walker v. Harry,
462 F. App’x 543, 545-46 (6th Cir. Feb. 13, 2012); see also Haynes v.
Bergh, 2014 WL 6871263 at * 22 (E.D. Mich. Dec. 5, 2014).
Clearly, the state habeas court was correct in finding that the
failure of Lynch’s counsel to raise a Confrontation Clause challenge to
the victim’s dying declaration was not offensive to any “clearly
established” law as determined by the Supreme Court.
therefore not entitled to federal habeas relief on this claim. 28 U.S.C.
§ 2254(d)(1). Hence, trial counsel had no legal basis for imposing an
objection to its admission, see Jones v. Barnes, 463 U.S. 745, 751 (1983)
(there is no “constitutional right to compel appointed counsel to press
nonfrivolous points”), and appellate counsel was not deficient for failing
to raise a meritless argument that trial counsel was ineffective.
Strickland, 466 U.S. at 687.
Detective Tobar’s Testimony
On direct examination, the prosecutor asked Detective Tobar:
Q And based on your investigation -- based on your investigation,
when you looked at the case and talked to the witnesses in regards
to this case, it led -- who did your -- what did everything lead to, or
who did everything lead to?
A Reggie Lynch.
Q And do you see Mr. Lynch here today?
A He’s right there, sitting with the blue shirt.
Doc. 11-3 at 91 (Trial Transcript Vol. II at 343). Trial counsel did not
object to the question, but during his cross-examination of Tobar he
elicited testimony about the two other suspects the State had
investigated as potential perpetrators of the shooting.
Id. at 92-101
(Trial Transcript Vol. II at 344-354).
In his state petition, Lynch argued that this exchange was
“tantamount to testifying that [Lynch] is guilty,” had “the effect of
bolstering the state’s witnesses because Tobar testified that the evidence
and the witness only implicate Lynch,” despite the fact that there was no
physical evidence against Lynch and “Tobar had no knowledge of the
case other than what he is repeating from other witnesses.” Doc. 11-4 at
At the state habeas evidentiary hearing, appellate counsel
conceded that such testimony was a conclusion that should have been left
to the jury, and that he had missed the issue. Doc. 8-3 at 21 (State
Habeas Evid. H’g Vol. I at 19). Petitioner seized upon this admission as
proof appellate counsel was defective, doc. 11-4 at 13 (“Appellate counsel
was deficient for not raising this issue. He did not have [a] strategy
because it was an issue he did not consider.”), see also doc. 1 at 7,
contending that the fact that his first trial ended in a hung jury
demonstrates the evidence was not overwhelming and Tobar’s improper
testimony, as the final witness in the State’s case-in-chief, was the
figurative straw that broke the camel’s back. Doc. 11-4 at 13-14. Hence,
appellate counsel’s failure to harp on Tobar’s testimony cost him his
appeal, meeting Strickland’s prejudice prong. Id. at 14.
This argument is without merit. As discussed by the state habeas
Lynch alleges that appellate counsel was ineffective for failing to
raise the issue that trial counsel failed to object to Detective
Tobar’s testimony that all of the evidence in the case led to Lynch
being the shooter. Trial counsel did not object to the prosecutor’s
question or Detective Tobar’s response; rather counsel made a
strategic decision to deal with the issue on cross examination. On
cross, trial counsel pointed out that the police investigated at least
two other suspects in the course of their investigation, as well as
inconsistencies in witness accounts of the shooting. Without
deciding whether counsel performed deficiently by failing to raise
an issue about trial counsel’s failure to object, this court does not
believe that there is a reasonable probability that the outcome of
the appeal would have been different had the issue been raised. In
other words, this court does not believe that the conviction would
have been reversed on appeal.
Doc. 11-7 at 3 (internal cites omitted).
performance -- even if deficient for failing to raise trial counsel’s strategic
decision to forgo objecting in lieu of addressing Tobar’s testimony on
cross-examination -- did not materially alter the outcome of the appeal.
That conclusion was not an unreasonable application of the law or an
unreasonable determination of the facts in light of the evidence available
at trial. 28 U.S.C. §§ 2254(d)(1) & (2); see also Strickland, 466 U.S. at
694 (a defendant must show “that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding
would have been different.”); Matire v. Wainwright, 811 F.2d 1430, 1434
(11th Cir. 1987) (same).
Indeed, even if appellate counsel should have raised the issue,
petitioner cannot demonstrate that the outcome of the appeal would
have been any different. Detective Tobar’s testimony that the evidence
pointed to Lynch -- particularly after trial counsel’s attempt on crossexamination to muster the slightest doubt that another shooter could
have done the deed -- did not alone tip the scales, given the State’s
overwhelming evidence of Lynch’s guilt. See Lynch, 731 S.E.2d at 674
(statements by the victim that Lynch shot him and by a witness that
Lynch told her he planned to kill the victim, the victim told her Lynch
shot him, and that she saw Lynch drive away from the scene “was
sufficient to enable the jury to find [him] guilty of the crimes for which
he was convicted beyond a reasonable doubt.”).
Because Lynch has shown no prejudice -- much less “clear and
convincing evidence” of it, see 28 U.S.C. § 2254(e)(1); Jones, 834 F.3d at
1311 -- resulting from appellate counsel’s oversight (of an argument that
would have changed nothing about the outcome of his appeal), he has not
demonstrated counsel was ineffective. Strickland, 466 U.S. at 687-88,
694; see also Butcher v. United States, 368 F.3d 1290, 1293 (11th Cir.
2004) (“[A]ttorney errors come in an infinite variety and are as likely to
be utterly harmless in a particular case as they are to be prejudicial.
That the errors had some conceivable effect on the outcome of the
proceeding is insufficient to show prejudice.”).
Reginald Lynch has failed to show that the state habeas court’s
denial of his ineffectiveness claims was contrary to, or unreasonably
applied, controlling United States Supreme Court precedent.
28 U.S.C. § 2254(d).
His claim of ineffective assistance of appellate
counsel (doc. 1) is without merit and, accordingly, his § 2254 petition
(doc. 1) should be DENIED. Applying the Certificate of Appealability
(“COA”) standards, which are set forth in Brown v. United States, 2009
WL 307872 at * 1-2 (S.D. Ga. Feb. 9, 2009), the Court discerns no COAworthy issues at this stage of the litigation, so no COA should issue. 28
U.S.C. § 2253(c)(1); Rule 11(a) of the Rules Governing Section 2555
Proceedings of the United States District Courts; see Alexander v.
Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (approving sua sponte denial
of COA before movant filed a notice of appeal). And, as there are no nonfrivolous issues to raise on appeal, an appeal would not be taken in good
Thus, in forma pauperis status on appeal should likewise be
DENIED. 28 U.S.C. § 1915(a)(3).
This Report and Recommendation (R&R) is submitted to the
judge assigned to this action,
§ 636(b)(1)(B) and this Court’s Local Rule 72.3.
Within 14 days of
service, any party may file written objections to this R&R with the Court
and serve a copy on all parties.
The document should be captioned
“Objections to Magistrate Judge’s Report and Recommendations.” Any
request for additional time to file objections should be filed with the
Clerk for consideration by the assigned district judge.
After the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district judge. The
recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are
advised that failure to timely file objections will result in the waiver of
rights on appeal. 11th Cir. R. 3-1; see Symonett v. V.A. Leasing Corp.,
648 F. App’x 787, 790 (11th Cir. 2016); Mitchell v. U.S., 612 F. App’x
542, 545 (11th Cir. 2015).
SO REPORTED AND RECOMMENDED, this
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