Jones v. Head

Filing 195

ORDER granting 179 Motion for Leave to File Overlength Motion; denying 180 Petitioner's Renewed Motion for Discovery and Evidentiary Hearing; denying 190 Petitioner's Motion to Perpetuate the Testimony of Charles and Darquitta Riley. The Court DISMISSES Petitioner's Section 2254 Motion, and DIRECTS the Clerk of Court to enter the appropriate judgment and CLOSE this case. Signed by District Judge R. Stan Baker on 3/25/2024. (gmh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
WAYCROSS DIVISION
ASHLEY LYNDOL JONES,
Petitioner,

CIVIL ACTION NO.: 5:02-cv-116

v.
WARDEN, Georgia Diagnostic and
Classification Center,
Respondent.
ORDER
Before the Court is Petitioner Ashley Lyndol Jones’s Renewed Motion for Discovery and
an Evidentiary Hearing, 1 (doc. 180), and Motion to Perpetuate the Testimony of Charles and
Darquitta Riley, (doc. 190). In the former, Petitioner argues that he is entitled to additional
discovery about his claim of juror misconduct following the resurfacing of previously
unconsidered evidence. (See generally doc. 180.) Respondent Warden of Georgia Diagnostic
and Classification Center filed a Response, (doc. 183), and Petitioner filed a Reply, (doc. 188).
Additionally, Petitioner moves to depose a former juror and his wife, arguing that their older age
gives rise to concerns about their ability to testify in the future. (See generally doc. 190.) To the
latter Motion, Respondent has filed a Response, (doc. 191), and Petitioner has filed a Reply,
(doc. 192.) For the reasons below, the Court DENIES Petitioner’s Motions. (Docs. 180, 190.)

Alongside Petitioner’s Renewed Motion for Discovery and an Evidentiary Hearing, Petitioner also
submits a Motion for Leave to File Overlength Motion, (doc. 179), as his Renewed Motion for Discovery
exceeds the page limit set by Local Rule 7.1(a). Given that the Motion is unopposed, the Court
GRANTS Petitioner’s Motion for Leave to File Overlength Motion and will accordingly consider
Petitioner’s Renewed Motion for Discovery in its entirety.
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BACKGROUND
I.

Factual History
The facts of Petitioner’s criminal case were set forth by the Supreme Court of Georgia as

follows:
[Petitioner] and his co-defendant, Allen Bunner, began the crime spree
which led to the death of Keith Holland on the night before the murder, when they
stole four cases of beer from a convenience store in Ware County. The codefendants fled in an automobile with three other companions, who were waiting
for them outside the store. The group spent the remainder of the night driving
around aimlessly and drinking the stolen beer, until their car broke down, and
[Petitioner] and Bunner left the others, stating they were going to find a truck.
The co-defendants stole a Ford truck, belonging to Rudolph Melton, which
was parked in front of Melton’s residence. After driving around for several more
hours in the stolen truck, they arrived at the home of the victim, Keith Holland.
Bunner knocked on Holland’s front door at approximately 5 a.m. and asked
Holland’s wife Mamie for assistance, on the pretext that the truck’s battery was
dead. Mamie Holland woke her husband, and he went outside to assist Bunner.
As Holland was leaning over to look in the engine compartment of the truck,
[Petitioner] struck him in the head from behind with a sledge hammer.
Mamie Holland witnessed the first blow from her dining room window
and reacted by screaming for [Petitioner] to stop and by banging on the window.
[Petitioner] turned and looked at her but continued to pound the victim, inflicting
at least six blows to the head and face, all of which were potentially fatal. Prior to
leaving in the victim’s truck, [Petitioner] got out of the vehicle and hit the victim
again, while he was lying on the ground. EMS workers arrived within minutes
after the co-defendants’ departure. Because of the injuries to the victim’s face,
EMS workers were unable to perform CPR or intubate the victim, and he died
before reaching the hospital.
[Petitioner] and Bunner drove to Florida in the victim’s truck. They
tossed Holland’s personal belongings out of the truck along the way, and pawned
two chain saws belonging to Melton. Police learned of their whereabouts through
telephone calls made by the co-defendants to a friend in Georgia, and they were
arrested at a welcome station south of the Georgia-Florida line. The victim’s
truck, which [Petitioner] and Bunner had burned, was found in the woods a short
distance away.
Jones v. State, 481 S.E.2d 821, 823–24 (Ga. 1997).
II.

Procedural History

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Petitioner was convicted of murder and sentenced to death in 1995. (Doc. 173, p. 2.)
The Supreme Court of Georgia affirmed Petitioner’s conviction and sentence. Jones, 481 S.E.2d
at 826. Following the issuance of his execution warrant, Petitioner filed a habeas corpus petition
in state court. (Doc. 37, p. 3.) The Superior Court conducted an evidentiary hearing on March
15, 1999, and ultimately denied the petition on January 7, 2000. (Id.) After unavailing statecourt proceedings, Petitioner sought habeas relief in federal court under 28 U.S.C. § 2254 in
December 2002. (Doc. 5.) This Court denied the petition in all respects, (doc. 153), and denied
Petitioner’s motion for a certificate of appealability, (doc. 161).
In 2022, the Eleventh Circuit Court of Appeals granted a limited certificate of
appealability to determine, among other things, whether Petitioner should receive discovery or an
evidentiary hearing to develop a juror misconduct claim. (Doc. 173, p. 2.) Petitioner had
previously alleged (to this Court) that two observations of a dismissed penalty-phase juror
suggested that there had been extrinsic influence on the jury and warranted discovery or a
hearing. (Id. at p. 11; see also doc. 112.) The dismissed juror had seen one juror holding a Bible
and a few others drinking alcoholic beverages with bailiffs, but the dismissed juror declined to
testify or submit any written statement about her observations. (Doc. 173, p. 11; doc. 112, pp.
16–18.) The Court found Petitioner had failed to show the necessary “good cause” for discovery
on these facts and that he had failed to show grounds for an evidentiary hearing because the
alleged observations by the juror, even if true, did not rise to the level of juror misconduct or
extraneous influence. (Doc. 173, pp. 11–12; doc. 112, pp. 17–18.)
Following oral argument before the Eleventh Circuit on this issue, Petitioner discovered
relevant “work product generated during [his] state habeas proceedings.” (Doc. 173, p. 12.)
Specifically, Petitioner found notes taken by a paralegal regarding his legal team’s efforts to talk

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to jurors, including additional details on potential juror misconduct. (Id.) According to the
notes, which are dated August 15, 1998 (more than six months before Petitioner’s evidentiary
hearing), juror Charles Riley said he started a Bible study with the other jurors, and the jurors
prayed together before court and at night in their hotel. (Doc. 180-1, p. 29.) Riley also said that
the bailiff brought the jury a Bible in the deliberation room. (Id.) The Eleventh Circuit noted
that “it is not entirely clear why [Petitioner]’s current federal counsel didn’t find these documents
earlier,” but granted Petitioner’s motion to supplement the appellate record with the new
information. (Doc. 173, p. 13.) Because the supplemented record presents a “slightly different
case now,” the Eleventh Circuit remanded the matter so the Court may decide these “factsensitive issues on the supplemented record.” (Id. at 14.)
STANDARD OF REVIEW
Under 28 U.S.C. § 2254(e)(2), as amended by the Antiterrorism and Effective Death
Penalty Act (AEPDA), a federal court shall not hold an evidentiary hearing on a claim if the
petitioner has failed to develop the factual basis for the claim in state court unless the petitioner
shows that
(A) the claim relies on—
(i) a new rule of constitutional law, made retroactive to cases on collateral review
by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the
exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and
convincing evidence that but for constitutional error, no reasonable factfinder would
have found the applicant guilty of the underlying offense.
28 U.S.C. § 2254(e)(2). Thus, if the petitioner was not diligent in his efforts to develop his claim
in state court, he may not receive an evidentiary hearing unless he can satisfy the two limited
scenarios in § 2254(e)(2)(A) and (B). See Williams v. Taylor, 529 U.S. 420, 437 (2000).
“Finally, even if all of these requirements are satisfied, a federal habeas court still is not required

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to hold a hearing or take any evidence.” Shinn v. Ramirez, 596 U.S. 366, 381 (2022). “Like the
decision to grant habeas relief itself, the decision to permit new evidence must be informed by
principles of comity and finality that govern every federal habeas case.” Id. at 381–82 (citing
Brown v. Davenport, 596 U.S. 118, 133 (2022)).
DISCUSSION
I.

Whether the Late Discovery of the Juror Notes Affects the Due-Diligence Calculus
The Eleventh Circuit directed the Court to determine both whether “the late discovery of

the juror notes . . . affect[s] the due-diligence calculus” and whether, considering all the evidence
(including the new evidence), Petitioner is entitled to discovery and an evidentiary hearing.
(Doc. 173, p. 14.)
A. Evidentiary Hearing
The Court must begin with the new evidence’s effect on the threshold diligence analysis.
“[T]he opening clause of § 2254(e)(2) codifies [a] threshold standard of diligence,” Williams,
529 U.S. at 434, and thus, “the court must first determine ‘whether the prisoner was diligent in
his efforts’ to develop the facts in state court.” Ledford v. Warden, Ga. Diag. Prison, 975 F.3d
1145, 1163 (11th Cir. 2020) (quoting id. at 435). “If . . . the Court finds that the petitioner has
exercised due diligence at the state level, Rule 6(a) of the Rules Governing § 2254 Cases applies
and permits the district court to authorize discovery ‘for good cause.’” Jones v. Warden, Georgia
Diagnostic & Classification Prison, No. 20-12587, 2022 WL 4078631, at *4 (11th Cir. Sept. 6,
2022); see also Williams, 529 U.S. at 433–34 (holding that § 2254(e)(2)’s provisions barring
discovery apply only if the petitioner was not reasonably diligent in trying to develop the factual
record in state court). “[A] failure to develop the factual basis of a claim,” as § 2254(e)(2)
requires, is established where “there is lack of diligence, or some greater fault, attributable to the

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prisoner or the prisoner’s counsel.” Shinn, 596 U.S. at 383 (quoting Williams, 529 U.S. at 432).
Simply put, “counsel’s failure to perform as a diligent attorney triggers the opening clause of §
2254(e)(2).” Id. at 385 (alterations adopted) (quotations omitted).
Previously on this issue, the Court found Petitioner was diligent in state court
proceedings. (Doc. 37, p. 9) (“In light of [Petitioner’s] efforts, it does not appear that the
AEDPA would bar discovery for lack of diligence . . .”). Now, Petitioner contends that “the
discovery of this additional evidence has no bearing on this Court’s prior determination of
diligence.” (Doc. 180, p. 3.) It is true that, “in general, [Eleventh Circuit] precedent says that
when a petitioner requested an evidentiary hearing at every appropriate stage in state court and
was denied a hearing on the claim entirely, the petitioner has satisfied the diligence requirement
for purposes of avoiding Section 2254(e)(2).” Pope v. Sec’y for Dep’t of Corr., 680 F.3d 1271,
1289 (11th Cir. 2012) (emphasis added) (citing Valle v. Sec’y for Dep’t of Corr., 459 F.3d 1206,
1216 (11th Cir. 2006)); see also Breedlove v. Moore, 279 F.3d 952, 960 (11th Cir. 2002)
(diligence requirement satisfied where petitioner “sought an evidentiary hearing on [the relevant
claim] at every stage of his state proceedings” yet “[t]he state courts denied him the opportunity
to present evidence related to [the] claim”) (emphasis added). However,
where a petitioner was granted an evidentiary hearing or other means of
presenting evidence to the state court on the particular claim, and the petitioner
failed to take full advantage of that hearing, despite . . . having access to the
potential evidence and having sufficient time to prepare for the hearing, that
petitioner did not exercise diligence in developing the factual foundation of his
claim in state court.
Pope, 680 F.3d at 1289 (emphasis added); see, e.g., Ward v. Hall, 592 F.3d 1144, 1160 (11th Cir.
2010) (district court’s finding that petitioner failed to exercise diligence was not clear error
where petitioner “was afforded approximately three years to secure affidavits and witness
testimony prior to his state habeas evidentiary hearings” but failed to submit relevant evidence,

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even though he “managed to submit numerous exhibits and affidavits during the course of his
hearings”); Chandler v. McDonough, 471 F.3d 1360, 1362 (11th Cir. 2006) (per curiam)
(petitioner failed to exercise diligence in developing other evidence of claim, where petitioner
“was given an evidentiary hearing on the claim in state court” and “also proffered in the state
collateral proceeding a 195-page report in two parts by his expert on the issue”); Arthur v. Allen,
452 F.3d 1234, 1248 (11th Cir. 2006) (petitioner failed to exercise diligence where “[h]e failed to
pursue the testing of the requested crime-related physical evidence during his three trials or
through a state postconviction relief petition”); McNair v. Campbell, 416 F.3d 1291, 1298–1300
(11th Cir. 2005) (petitioner failed to exercise diligence where state court granted a hearing but
denied his belated requests for expert funds because those requests were untimely, he could have
developed evidence in less costly ways but did not, and he did not pursue the argument on state
collateral appeal); Hall v. Head, 310 F.3d 683, 698 (11th Cir. 2002) (district court’s finding that
petitioner failed to exercise diligence was not clear error where state habeas court conducted a
full-day evidentiary hearing, at which an expert “gave extensive testimony speculating about the
kinds of psychological problems that afflict [petitioner],” petitioner’s trial counsel “gave
extensive testimony about their representation of [petitioner],” and petitioner’s state habeas
counsel “had eight months to prepare and failed to ask the court for access for psychological
testing until four days before the hearing”); Isaacs v. Head, 300 F.3d 1232, 1249–50 (11th Cir.
2002) (district court’s finding that petitioner failed to exercise diligence was not clear error
where petitioner was aware of evidentiary issue, and could have but did not develop the factual
record on at least three occasions on which he was granted the opportunity to present evidence to
the state court).

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Here, as in the cases described above, Petitioner’s counsel possessed specific, relevant
evidence at the time of the state court evidentiary hearing and failed to develop the factual record
when given the opportunity. Though Petitioner’s evidentiary hearing was not conducted for
more than six months after the juror was apparently interviewed, “[t]he juror-interview notes
have existed since 1998 and were in [Petitioner]’s lawyers’ possession all along, yet no set of
lawyers discovered them.” (Doc. 173, p. 13.)
“Diligence for purposes of [Section 2254(e)(2)] depends upon whether the prisoner made
a reasonable attempt, in light of the information available at the time, to investigate and pursue
claims in state court.” Williams, 529 U.S. at 435 (emphasis added). While Petitioner was
previously considered diligent for purposes of Section 2254, that was what “the facts of this case
seem[ed] to indicate” at the time. (Doc. 37, p. 9.) The evidence Petitioner seeks to develop
today—the information in the interview notes—is evidence that has long been in his possession.
(See doc. 180, p. 31 n.25.) Knowing now that Petitioner’s counsel has, for decades, been in
possession of this additional evidence, it can no longer be said that Petitioner made a reasonable
attempt, in light of the information available at the time, to investigate or develop their claim of
juror misconduct.
The discovery of new information does not warrant an evidentiary hearing where
Petitioner had opportunities to present that evidence during state habeas proceedings. Isaacs,
300 F.3d at 1248–50. Rather, it is precisely these failures to present and develop evidence at
prior proceedings that amount to insufficient diligence. See id.; see also Roberts v. Dretke, 356
F.3d 632, 641 (5th Cir. 2004) (“Seeking and presenting [evidence] available at the time of the
state habeas hearing is within the exercise of due diligence.”). By Petitioner’s own admission, he
“possessed [the] additional information” and “could have proffered [it] to the state habeas court

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in support of his right to develop the claim.” (Doc. 188, p. 8.) Yet, Petitioner offers no reason
why this important information was not used to previously develop his claim, except that, in
sum, it was “a particularly chaotic time.” (Doc. 180, p. 31 n.25.) Petitioner appears to downplay
the additional evidence as a “few pages of notes” that cannot undercut the Court’s prior finding
that Petitioner was diligent, (id. at p. 6.), yet it is the very contents of these “few pages” that
Petitioner contends entitle him to an evidentiary hearing, (see id. at p. 20).
“[B]ecause [the petitioner] failed to present the evidence . . . at his state habeas
proceeding that he now seeks to introduce via an evidentiary hearing at his federal habeas
proceeding, his protestation of diligence fell short of the mark.” Ward, 592 F.3d at 1160. In
Ward, the Eleventh Circuit affirmed that a petitioner fails to exercise due diligence where “[the
petitioner] presents no evidence suggesting that the material that he now seeks to present was not
available during the period between the submission of his state habeas petition and his state
habeas evidentiary hearings.” Id. Here, not only does Petitioner fail to show the new evidence
was previously unavailable, Petitioner freely admits that this evidence has been in his counsel’s
possession for decades but was merely “inadvertently overlooked.” (Doc. 180, pp. 18, 31.)
Because “counsel’s failure to perform as a diligent attorney triggers the opening clause of §
2254(e)(2),” Petitioner can only receive an evidentiary hearing through the narrow exceptions of
§ 2254(e)(2)(A) and (B). Shinn, 596 U.S. at 385 (alterations adopted) (quotations omitted).
“To respect our system of dual sovereignty, the availability of habeas relief is narrowly
circumscribed.” Id. at 375 (internal citation omitted). Accordingly, where a petitioner was not
diligent for the purposes of § 2254(e)(2), only the narrow exceptions of § 2254(e)(2)(A) and (B)
allow for an evidentiary hearing. Petitioner’s claim does not rely on “a new rule of constitutional
law,” nor is the new information a “factual predicate that could not have previously been

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discovered,” since it has been in counsel’s possession for decades.
2254(e)(2)(A).

See 28 U.S.C. §

Likewise, Petitioner does not contend that “but for constitutional error, no

reasonable fact-finder would have found the applicant guilty of the underlying offense,” id. §
2254(e)(2)(B). That is so say, “[Petitioner] presents no alternative argument should [the Court]
find, as [it] ha[s], that he is subject to § 2254(e)(2)(A) and (B).” Ward, 592 F.3d at 1161.
Seemingly, Petitioner effectively concedes that a finding of diligence is a requirement for his
Motion to be granted. 2 (Doc. 188, p. 9.) Because Petitioner fails at the diligence threshold of §
2254(e)(2), his motion for an evidentiary hearing must be denied.
B. Discovery
Petitioner’s motion for additional discovery must likewise be denied for the same reason.
“A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to discovery as
a matter of ordinary course.” Bracy v. Gramley, 520 U.S. 899, 904 (1997). Rule 6(a) of the
Rules Governing § 2254 Cases states that “[a] judge may, for good cause, authorize a party to
conduct discovery under the Federal Rules of Civil Procedure and may limit the extent of
discovery.” Rules Governing § 2254 Cases, Rule 6, 28 U.S.C.A. foll. § 2254. However, in
“[d]etermining whether to grant or deny discovery” in the habeas context, “the [C]ourt must
apply the ‘additional barrier[] limiting a habeas petitioner’s right to discovery,’ and that is [§]
2254(e)(2)’s diligence requirement: that is, whether the petitioner made a reasonable attempt, in
light of information available at the time, to investigate and pursue claims in state court.”
Pakhomov v. Billups, No. 516CV00289ACAHNJ, 2019 WL 2489689, at *30 n.24 (N.D. Ala.

Furthermore, even if Plaintiff had argued his claim fits into the exceptions, the nature of the new
evidence relates to Petitioner’s sentencing, and “the § 2254(e)(2)(A) and (B) exceptions do not apply to
issues relating to the sentencing phase of a trial.” Ward, 592 F.3d at 1161; see also In re Jones,137 F.3d
1271, 1274 (11th Cir. 1998) (per curiam) (“As [we have] noted, and the statute itself specifies, this
exception applies only to claims going to the question of whether or not the applicant is ‘guilty of the
underlying offense’—not to claims related to sentence.”).
2

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Jan. 8, 2019), report and recommendation adopted as modified, No. 5:16-CV-00289-ACA, 2019
WL 1237085 (N.D. Ala. Mar. 18, 2019) (quoting Isaacs, 300 F.3d at 1249.) For the reasons
already discussed, Petitioner fails to overcome this “additional barrier” of diligence. Isaacs, 300
F.3d at 1249. The Court need not evaluate whether the Petitioner has shown good cause, since
he once again cannot pass the diligence threshold.
Because Petitioner has failed to show that he exercised diligence in his state court habeas
proceedings, both his request for discovery and his request for an evidentiary hearing necessarily
fail. Accordingly, Petitioner’s Renewed Motion for Discovery and an Evidentiary Hearing is
DENIED. (Doc. 180).
II.

Whether Petitioner may Depose Charles and Darquitta Riley
Petitioner also moves to depose Charles Riley, a former juror, and his wife, Darquitta

Riley, arguing, among other things, their testimony will be lost if not preserved, given that the
Rileys are both in their eighties. (See generally doc. 190.) Petitioner invokes Federal Rule of
Civil Procedure 27, which authorizes the Court to allow a party to perpetuate testimony through
a deposition before an action is filed or while the action is pending appeal. Fed. R. Civ. P. 27
(a)–(b); (see doc. 190, pp. 6–8.) Petitioner acknowledges, however, that this matter is not
governed by the Federal Rules of Civil Procedure since, “unlike the usual civil litigant in federal
court, [a habeas petitioner] is not entitled to discovery as a matter of course.” (Doc. 190, pp. 5–6
(quoting Bracy, 520 U.S. at 904).) Nevertheless, Petitioner contends that Rule 27 principles
permit the Court to allow the depositions of the Rileys. (Doc. 190, 6–8 (citing Horning v.
Broomfield, No. 2:10-cv-01932, 2022 WL 17178358 (E.D. Cal. Nov. 22, 2022); and Lenart v.
Warden, San Quentin State Prison, No. CIV S-05- 1912, 2012 U.S. Dist. LEXIS 49051 (E.D.
Cal. Apr. 6, 2012).)

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Yet even in the limited cases that Petitioner relies on, the courts still follow the basic
principle that, in exercising the court’s constrained discretion to allow a perpetuation of
testimony, Rule 6(a) and § 2254 govern habeas actions. See Horning, 2022 WL 17178358, at
*2. Accordingly, Petitioner’s Motion to Perpetuate Testimony requires the same analysis as his
Motion for Evidentiary Hearing and Discovery. For the reasons discussed in the previous
section, Petitioner’s failure to overcome the diligence threshold precludes additional discovery,
which includes deposing the Rileys.

See supra, Discussion Section I.B.

Accordingly,

Petitioner’s Motion to Perpetuate the Testimony of Charles and Darquitta Riley is DENIED.
(Doc. 190.)
CONCLUSION
For these reasons, the Court DENIES Petitioner’s Renewed Motion for Discovery and an
Evidentiary Hearing. (Doc. 180). Because Petitioner possessed the additional evidence and
neglected to present it at the appropriate time, he cannot satisfy the diligence threshold required
for an evidentiary hearing. Moreover, additional discovery is not appropriate, and Petitioner’s
Motion to Perpetuate the Testimony of Charles and Darquitta Riley must also be DENIED.
(Doc. 190). In sum, after reviewing the entire record, including the new information, neither
discovery nor an evidentiary hearing are warranted. The Court DISMISSES Petitioner’s Section
2254 Motion, and DIRECTS the Clerk of Court to enter the appropriate judgment and CLOSE
this case.
SO ORDERED, this 25th day of March, 2024.

R. STAN BAKER
UNITED STATES DISTRICT JUDGE
SOUTHERN DISTRICT OF GEORGIA
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