Lee v. Upton
Filing
53
ORDER granting in part and denying in part 48 Petitioner's Motion for Leave to Conduct Discovery. Petitioner's request for discovery related to his Brady claim is GRANTED as outlined in Part III.A.2. Petitioner's request for necessary expert and investigative services is DENIED. Signed by Chief Judge Lisa G. Wood on 8/20/2013. (csr)
u the Stfteb Otatto lafarfa Court
for the £'outhtrn Marta ot atorafa
apero DibIion
JAMES ALLYSON LEE,
Petitioner,
vs.
CARL HUMPHREY, Warden,
Georgia Diagnostic Prison,
Respondent.
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CV 510-017
ORDER
Presently before the Court is Petitioner's Motion for Leave
to Conduct Discovery. See Dkt. No. 48. Upon due consideration,
Petitioner's motion is GRANTED IN PART and DENIED IN PART.
I. BACKGROUND
After a jury trial in the Superior Court of Charlton
County, Georgia, Petitioner was convicted of malice murder,
felony murder, armed robbery, and possession of a firearm during
the commission of a crime in connection with the May 1994
homicide of Sharon Chancey ("Chancey murder"). Dkt. No. 10-6,
at 3.
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Following the sentencing phase of trial, the jury found
that several aggravating circumstances existed and recommended a
sentence of death. Id. at 4-5. Accordingly, in June 1997, the
trial court sentenced Petitioner to death for the murder; life
imprisonment for the armed robbery; and five (5) years for
possession of a firearm during the commission of a felony. Id.
at 6-9.
Petitioner filed a motion for new trial and later amended
that motion. Id. at 10, 20-24. Following a hearing,
Petitioner's amended motion for a new trial was denied. Id.
at 33. The Georgia Supreme Court affirmed Petitioner's
convictions and his sentence of death. Lee v. State, 514
S.E.2d 1 (Ga. 1999); Dkt. No. 12-16. Thereafter, the United
States Supreme Court denied Petitioner's petition for writ of
certiorari. Lee v. Georgia, 528 U.S. 1006 (1999), rehearing
denied, 528 U.S. 1125 (2000); Dkt. Nos. 13-2; 13-4.
In August 2000, Petitioner filed a state habeas corpus
petition in the Superior Court of Butts County, Georgia ("state
habeas court"). Dkt. No. 13-5. In April 2001, Petitioner
amended that petition. Dkt. No. 13-11. In total, Petitioner's
state habeas petition had twelve (12) grounds for relief,
including the two (2) grounds for which Petitioner now seeks
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discovery. See Dkt. No. 20-16, at 3. In August 2001, the state
habeas court conducted an evidentiary hearing. See Dkt. Nos.
14-2 through 20-5. That "hearing focused on [Petitioner's]
claims of ineffective assistance of counsel with respect to
trial counsel's penalty phase preparation and presentation."
Dkt. No. 20-16, at 2. In March 2009, the state habeas court
granted relief regarding Petitioner's sentence of death,
concluding that trial counsel had provided ineffective
assistance during the sentencing phase of Petitioner's death
penalty trial. See Dkt. No. 20-16.
The Supreme Court of Georgia reversed the state habeas
court's grant of relief and reinstated Petitioner's death
sentence. Hall v. Lee, 684 S.E.2d 868 (Ga. 2009); Dkt. No. 20-
In February 2010, Petitioner filed a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254. See Dkt. No. 1. In
September 2010, Petitioner amended his petition. See Dkt.
No. 29. In December 2012, this Court held a hearing regarding
Respondent's assertion that several of Petitioner's claims were
procedurally defaulted. Petitioner withdrew many of his claims.
Of the claims that were not withdrawn, the parties agreed that
all claims other than paragraph 21 of Claim 2 and paragraph 29
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of Claim 5 were ripe for resolution on the merits. The parties
further agreed to brief their arguments regarding the procedural
default of these claims in their merits briefs, after resolution
of any motions for discovery or an evidentiary hearing. See
Dkt. No. 44.
Presently before the Court is Petitioner's motion for leave
to conduct discovery on two (2) issues in his federal habeas
petition. See Dkt. No. 48. The motion is fully briefed. See
Dkt. Nos. 51, 52.
II. LEGAL STAIMAPL)
A. Requests for Discovery
"A habeas petitioner[] . . . is not entitled to discovery
as a matter of ordinary course." Bracy v. Gramley, 520 U.S.
899, 904 (1997). However, pursuant to Rule 6 of the Rules
Governing § 2254 Cases ("Rule 6"), the court may authorize a
party to conduct discovery upon a showing of "good cause."
Respondent cites Arthur v. Allen, 452 F.3d 1234, 1247 (11th Cir. 2006), for
the proposition that Petitioner must show "good cause" and "diligence in
pursuing the claim for which discovery is sought." See Dkt. No. 51, at 5.
However, the rule articulated by the court in Arthur was modified upon
rehearing. See Arthur v. Allen, 459 F.3d 1310 (11th Cir. 2006) (per curiam).
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28 U.S.C. Section 2254 Rule 6; see also Bracy, 520 U.S. at 904.
In so doing, the court "may limit the extent of discovery." 28
U.S.C. § 2254 Rule 6.
Good cause is demonstrated "where specific allegations
before the court show reason to believe that the petitioner may,
if the facts are fully developed, be able to demonstrate that he
is . . . entitled to relief." Bracy, 520 U.S. at 908-09
(quoting Harris v. Nelson, 394 U.S. 286, 300 (1969)) (ellipses
in original).
"[G]ood cause for discovery cannot arise from
mere speculation" or "pure hypothesis." Arthur v. Allen, 459
F.3d 1310, 1311 (11th Cir. 2006) (per curiam), modifying Arthur
v. Allen, 452 F.3d 1234, 1247-48.
In addition to showing "good cause" for discovery, a
petitioner must show that he exercised reasonable diligence in
attempting to obtain the sought-after discovery in state court.
See Isaacs v. Head, 300 F.3d 1232, 1248-49 (11th Cir. 2002)
(interpreting the language of 28 U.S.C. § 2254(e) (2) to create a
due diligence requirement for discovery and evidentiary
hearings); Id. at 1249-50 (upholding the district court's denial
Consequently, Respondent's reliance on that portion of the Arthur opinion is
misplaced.
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of the petitioner's request for discovery for "lack of diligence
during the state court proceedings"); Crawford v. Head, 311 F.3d
1288, 1329 (11th Cir. 2002) (upholding district court's denial
of the petitioner's request for discovery for "fail[ing] to
exercise sufficient diligence in seeking [the requested items]
while in state court").
B. Requests for Financial Assistance
Requests for financial assistance for investigators or
experts are governed by 18 U.S.C. § 3599(f). Section 3599(f)
provides
Upon a finding that investigative, expert, or other
services are reasonably necessary for the
representation of the defendant, whether in connection
with issues relating to guilt or the sentence, the
court may authorize the defendant's attorneys to
obtain such services on behalf of the defendant and,
if so authorized, shall order the payment of fees and
expenses therefor under subsection (g).
The Eleventh Circuit interpreted the phrase "reasonably
necessary" to mean "the same as showing a 'substantial need' for
the requested assistance." Gary v. Warden, Ga. Diagnostic
Prison, 686 F.3d 1261, 1268 (11th Cir. 2012) (citation omitted).
If a petitioner has not shown good cause for the discovery
that he requests, he is not entitled to an investigator to
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conduct the discovery or any experts to interpret the results of
the discovery.
III. DISCUSSION
Petitioner requests discovery for two (2) claims previously
presented to the state courts. First, Petitioner seeks
discovery related to his claim that the State suppressed
material exculpatory and impeachment evidence. See Dkt. No. 48,
at 1. Second, Petitioner seeks discovery related to his claim
that his death sentence is disproportionate in light of
aggravating and mitigating evidence. See id. For the reasons
stated below, Petitioner's requests for discovery are GRANTED IN
PART and DENIED IN PART.
A. Suppressed Evidence
Petitioner seeks discovery related to his claim that the
State suppressed specific impeachment evidence. See Dkt.
No. 48, at 1. For the reasons stated below, Petitioner's
discovery request with respect to this claim is GRANTED.
1. Background
Two people spent significant time with Petitioner on the
night that he committed the offenses underlying his convictions.
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These people were positioned to observe Petitioner's behavior
before and after the armed robbery and murder. In particular,
Leaundry Carter spent many hours with Petitioner before the
murder. See Dkt. No. 14-5, at 82-85. During this time, Carter
and Petitioner ingested an assortment of unknown, and
unprescribed, prescription pills. See id. They also consumed a
large quantity of alcohol. See id. As a result of their drug
and alcohol consumption, both Carter and Petitioner felt "real
weird . . . more than just [] high or drunk." Id.
Later that night, Petitioner's co-defendant, Shannon
Yeoman, rode around with Petitioner and was with him when he
committed the armed robbery and murder. See Dkt. No. 14-6, at
40-45. She observed that Petitioner was "hyper and stressed
out," "hyper and nervous," in a "frenzy," impulsive, and not in
"control of himself." See id. at 42-43. She also noted that
she had never observed Petitioner "act or look like he did that
night." See id. at 43.
Both Carter and Yeoman asserted that they provided law
enforcement officers details of Petitioner's drug and alcohol
use and his mental and physical demeanor before and during the
crimes' commission. See Dkt. Nos. 14-5, at 82-85; 14-6, at 4045. Carter asserted that he relayed his observations to Georgia
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Bureau of Investigation ("GBI") agents some time after the night
in question. See Dkt. No. 14-5, at 84. Carter also asserted
that he spoke with Toombs County police officers. Id. Yeoman
asserted that she relayed her observations to GBI agents and
Florida officers. See Dkt. No. 14-6, at 44.
According to Petitioner's trial counsel, the district
attorney represented that he maintained an "open file" policy.
See Dkt. No. 14-7, at 71. Even after reviewing the district
attorney's file, Petitioner's trial counsel were unaware that
Carter had spoken with law enforcement regarding the case. In
fact, they remained unaware of Carter's purported discussions
with law enforcement until nearly three (3) years after
Petitioner's sentencing. See id. at 68-81.
In January 2001, Petitioner moved the state habeas court to
order the State to disclose all Brad Y2 material. See Dkt. No.
52-1. In early May 2001, Carter and Yeoman signed affidavits
attesting to (1) their observations on the night of Petitioner's
crimes and (2) their relay of those observations to various law
enforcement officials shortly after Petitioner committed the
crimes. See Dkt. Nos. 14-5, at 82-85; 14-6, at 40-45. In late
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See Brady v. Maryland, 373 U.S. 83 (1963).
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May 2001, Petitioner's trial counsel signed affidavits attesting
to (1) the district attorney's representation that he maintained
an open file policy and (2) the fact that a review of that file
left them unaware that Carter and Yeoman had provided statements
to law enforcement officials. See Dkt. No. 14-7, at 68-81.
After the above-mentioned affidavits were signed,
Petitioner again moved the state habeas court to order the
district attorney "to disclose all withheld documents not
protected by the work product privilege, produce a privilege log
to counsel for [Petitioner,] and produce any withheld portions
of the files to the [state habeas court] for an in camera
inspection so that the [state habeas court] could . . . review
such documents for Brady material. "3 See Dkt. No. 52-3, at 5-6.
In early July 2001, the GBI special agent in charge of the
GBI's investigation into the Chancey murder signed an affidavit
attesting that "no one from the GBI ever interviewed [] Carter
in reference to the Chancey murder, the [robbery], or any other
matter." Dkt. No. 19-1, at 2-3.
Petitioner made his motion after requesting materials pursuant to Georgia's
Open Records Act, O.C.G.A. § 50-18-70 et seq., and after attempting to
subpoena such files from the district attorney. See Dkt. No. 52-3.
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In late July 2001, following the evidentiary hearing, the
state habeas court ordered the district attorney to produce "for
an in camera inspection, all documents, notes and other matters
in his possession which were previously not produced to
Petitioner or his agents pursuant to prior [] subpoena or open
records actions and which relate in any manner to the
prosecution of Petitioner for the offense of murder out of which
this action arises." Dkt. No. 13-19.
After the state habeas court's order compelling production,
the district attorney responded to Petitioner's motion to
compel. See Dkt. No. 52-4. In his response, the district
attorney attached documents to which he waived work product
privilege. See id. ¶ 2. The district attorney agreed to make
all remaining documents available to the state habeas court for
in camera inspection. See id. ¶ 4. The district attorney did
not produce a privilege log of those files to which the district
attorney asserted a work product privilege. See id.
The record does not clarify precisely what occurred after
the district attorney filed his opposition brief. However, the
reasonable inference from the record is that the state habeas
court conducted an in camera inspection of all files to which
the district attorney claimed work product privilege. See Dkt.
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No. 13-20 (noting that the state habeas court reviewed files
"pursuant to an Order for an in camera review"). It appears
that the only document produced for in camera inspection was the
district attorney's trial book. See id. After the state habeas
court's review, that court ordered that certain portions of the
district attorney's trial book be disclosed. See Dkt. No. 14-1.
After an evidentiary hearing and post-hearing briefing, the
state habeas court found, without written analysis, that
Petitioner's claim that the prosecution failed to disclose
relevant Brady material was procedurally defaulted for failure
to establish cause and prejudice. See Dkt. No. 20-16, at 4,
overturned on other grounds by Hall v. Lee, 684 S.E.2d 868 (Ga.
2009); Dkt. No. 20-28.
2. Application
Petitioner has provided—through the affidavits of Carter,
Yeoman, and his trial counsel—specific allegations that the
district attorney failed to disclose information related to law
enforcement encounters with the best witnesses to Petitioner's
intoxication and mental state before and during his crimes.
These affidavits provide more than mere speculation as to the
existence of such evidence. Moreover, should discovery prove
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the veracity of these affidavits, there is "reason to believe
that [Petitioner] may, if the facts are fully developed, be able
to demonstrate that he is . . . entitled to relief." Bracy, 520
U.S. at 908-09 (quoting Harris, 394 U.S. at 300) (ellipses in
original). Specifically, should evidence consistent with these
affidavits be disclosed, Petitioner "may" be able to show that
the penalty phase of his trial would have resulted in a
different outcome given the mitigating power of Petitioner's
allegedly compromised mental state prior to and during his
crimes.
Because there is "reason to believe" that, upon full
development of the alleged facts, Petitioner "may" be able to
show that he is entitled to relief from his death sentence,
there is good cause for granting Petitioner's discovery request.
Moreover, because Petitioner sought information related to law
enforcement encounters with Carter and Yeoman in the state
habeas court, Petitioner exercised due diligence in seeking the
currently-requested discovery. Consequently, Petitioner's
motion to compel discovery on this claim is GRANTED.
Accordingly, it is ORDERED that all documents, notes, and
other matters in the prosecutor's possession which were not
previously produced to Petitioner or his agents pursuant to
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prior subpoena, open records actions, or court orders and which
relate in any manner to interviews, interrogations, or
conversations between Leaundry Carter and/or Shannon Yeoman and
the prosecutor, his agents, and/or any law enforcement officers
or agencies and that took place after the commission of the
crimes at issue in this case but before Petitioner's sentencing
be produced within thirty (30) days of this Order. If
requested, the Court will conduct an in camera review of any
disclosed materials to determine whether further disclosure is
warranted.
B. Proportionality of Death Sentence
Petitioner seeks discovery related to his claim that his
death sentence is disproportionate in light of aggravating and
mitigating evidence. See Dkt. No. 48, at 1. For the reasons
stated below, Petitioner's motion to conduct discovery on this
claim is DENIED.
1. Legal Standard
Georgia law requires the Supreme Court of Georgia to review
a death sentence to determine whether the sentence is "excessive
or disproportionate to the penalty imposed in similar cases,
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considering both the crime and the defendant." O.C.G.A. § 1710-35(c) (3)
The United States Supreme Court has held that the U.S.
Constitution does not require a proportionality review. See
Pulley v. Harris, 465 U.S. 37 (1984); see also id. at 46, 50
(noting that, while the court in Gregg v. Georgia, 428 U.S. 153
(1976), "emphasiz[ed] the importance of mandatory appellate
review under the Georgia statute, [it] did not hold that without
comparative proportionality review the statute would be
unconstitutional" (citing Zant v. Stephens, 462 U.S. 862,
(1983))); McClesky v. Kemp, 481 U.S. 279, 306-307 (1987)
(holding that "absent a showing that the Georgia capital
punishment system operates in an arbitrary and capricious
manner, [the petitioner] could not prove a constitutional
violation by demonstrating that other defendants who may be
similarly situated did not receive the death penalty")
The Eleventh Circuit has also addressed the role of state
requirements of proportionality in federal habeas proceedings.
Importantly, the Eleventh Circuit has "instructed district
courts to refuse [1 requests [for proportionality review] when
deciding habeas corpus petitions." Mills v. Singletary, 161
F.3d 1273, 1282 (11th Cir. 1998) (per curiam); see also Moore v.
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Balkcom, 716 F.2d 1511, 1518 (11th Cir. 1983) ("A federal habeas
court should not undertake a review of the state supreme court's
proportionality review . •
•"). In so doing, the Eleventh
Circuit stated
The Constitution does not require a proportionality
review. And [the Eleventh Circuit] refuse[s] to
mandate as a matter of federal constitutional law that
where, as here, state law requires such review, courts
must make an explicit, detailed account of their
comparisons. Based on their own past experience in
reviewing capital punishment cases, state appellate
courts "can rationally distinguish between those
individuals for whom the death penalty is an
appropriate sanction and those for whom it is not,"
without listing in their opinions the facts that did
or did not justify the imposition of the death penalty
in the prior cases.
Lindsey v. Smith, 820 F.2d 1137, 1154 (11th Cir. 1987) (internal
citations omitted).
2. Application
Proportionality review is not required by the U.S.
Constitution or any other federal law. Moreover, Eleventh
Circuit precedent forbids a case-by-case comparison of the
review undertaken by the Supreme Court of Georgia.
Consequently, Petitioner's request for discovery on this issue
is DENIED.
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IV. CONCLUSION
For the reasons stated above, Petitioner's Motion for Leave
to Conduct Discovery is GRANTED IN PART and DENIED IN PART.
Dkt. No. 48. Petitioner's request for discovery on his claim
that his death sentence is disproportionate is DENIED.
Petitioner's request for discovery related to his Brady claim is
GRANTED as outlined in Part III.A.2.
Petitioner's request for necessary expert and investigative
services is DENIED.
If material produced as a result of this
Order renders such services necessary, Petitioner should refile
his motion.
SO ORDERED, this 20th day of August, 2013.
LISA GODBEY OOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
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