Jerry Scoot Heidler v. Carl Humphrey

Filing 65

ORDER denying 59 Motion for Leave to Conduct Discovery. Signed by Chief Judge Lisa G. Wood on 2/24/2014. (csr)

n the anitleb 'tate flttrttt Court
for the boutbern 30totrut of deorgia
'tateboro Otbislon
JERRY SCOTT HEIDLER,
Petitioner,
CV 611-109

VS.

BRUCE CHATMAN, Warden, Georgia
Diagnostic and Classification
Center,
Respondent.

ORDER

Presently before the Court is Petitioner's Motion for Leave
to Conduct Discovery. See Dkt. No. 59. Upon due consideration,
Petitioner's motion is DENIED.
I. Background

After a jury trial in the Superior Court of Walton County,
Georgia, Petitioner was convicted of four counts of malice
murder, one count of kidnapping with bodily injury, three counts
of kidnapping, one count of aggravated sodomy, one count of
aggravated child molestation, one count of child molestation,
and one count of burglary. See Dkt. Nos. 12-7, Ex. 2C, at 10816; 12-8, Ex. 2D, at 1-2.

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Following the sentencing phase of trial, the jury found
that aggravating circumstances existed and recommended a
sentence of death for each of the four counts of malice murder.
Dkt. No. 12-8, Ex. 2D, at 13-16. Accordingly, in September
1999, the trial court sentenced Petitioner to death for each
count. Id. at 18-25. The trial court also sentenced Petitioner
to consecutive terms of life imprisonment for the kidnapping
with bodily injury and aggravated sodomy counts; 30 years
(consecutive) for the aggravated child molestation count; and 20
years (consecutive) for each of the remaining counts. Id. at
26.
Petitioner filed a motion for new trial and later amended
that motion. See id. at 41-42, 55-56. Following a hearing,
Petitioner's amended motion for a new trial was denied. See id.
at 44-48; Dkt. No. 12-9, Ex. 2E, at 1-14. The Supreme Court of
Georgia affirmed Petitioner's sentences of death. Heidler v.
State, 273 Ga. 54 (2000); Dkt. No. 15-18, Ex. 50., The Supreme
Court of Georgia reversed Petitioner's sentence for aggravated
child molestation, which the court found merged into the
aggravated sodomy count. Id. The court affirmed all of
Petitioner's other sentences. Id. Thereafter, the Supreme
Court of the United States denied Heidler's petition for writ of
certiorari. Heidler v. Georgia, 532 U.S. 1029 (2001), reh'g

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denied, 533 U.S. 965 (2001); Dkt. Nos. 15-23, Ex. 55; 16-2, Ex.
57.
In November 2001, Petitioner filed a habeas corpus petition
in the Superior Court of Butts County, Georgia ("state habeas
court"). See Dkt. No. 16-3, Ex. 58. In April 2004, Petitioner
amended that petition. See Dkt. No. 18-4, Ex. 89. Petitioner's
amended state habeas petition stated 16 grounds for relief. See
id. In January 2006 and May 2006, the state habeas court
conducted evidentiary hearings. See Dkt. No. 31-12, Ex. 173A,
at 9. In August 2009, the state habeas court denied relief from
Petitioner's convictions and sentences. See Dkt. Nos. 31-12,
Ex. 173A; 31-13, Ex. 173B. The Supreme Court of Georgia denied
Petitioner's petition for a certificate of probable cause. See
Dkt. No. 31-18, Ex. 177.
In October 2011, Petitioner filed a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254. Dkt. No. 1. In
April 2012, Petitioner amended his petition. Dkt. No. 45.
Presently before the Court is Petitioner's Motion for Leave
to Conduct Discovery. Dkt. No. 59. The motion is fully
briefed. Dkt. Nos. 59; 60; 63.

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II. Petitioner's Motion for Discovery

Petitioner's motion relates to various claims arising from
(A) evidence regarding the kidnapping victims and possible abuse
not related to Petitioner and (B) information regarding the poor
security conditions of the detention center from which
Petitioner escaped. Dkt. Nos. 59, at 1; 63, at 3, 14-15. For
the reasons discussed below, Petitioner's discovery requests are
DENIED.

A. Victim Evidence
1. Background and Arguments of Evidence at Issue
A jury convicted Petitioner of killing four members of a
family who had housed one of his sisters as a foster child for a
short period of time, kidnapping three of the surviving
children, and sexually abusing one of them ("the victim"). See
Dkt. No. 59, at 7-8. As to the assault of the victim, the
primary evidence consisted of: Petitioner's videotaped
inculpatory statements; the videotaped statements of two
surviving children regarding their kidnapping and the sexual
abuse of one of them; DNA evidence linking Petitioner to a
cigarette butt found at the murders' location and semen located
on the victim's panties; and testimony from a pediatrician that
the victim had a "very small" tear on her anus. Id. at 8.
Petitioner seeks discovery of information, an opportunity
that the state habeas court denied, to develop his claim that
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the state suppressed material exculpatory evidence. See id. at
11-18. The asserted evidence concerns whether the victim and
another kidnapped child had previously been sexually abused by a
different individual. Id. at 11. According to Petitioner, this
evidence—which might have provided an alternative explanation
for what caused the victim's anal tear—would have undermined the
credibility of the girls' videotaped statements, which included
"somewhat contradictory" accounts of how the victim was sexually
assaulted. Id. at 11, 15. Petitioner believes that the girls'
testimony exhibited some familiarity with human sexuality, which
Petitioner argues is "unusual (given their young ages) ." Id. at
13. Petitioner contends that this "premature familiarity with
sexuality must have been particularly troubling to jurors." Id.
at 14.
Purportedly, the girls' evidence constituted a "highly
aggravating circumstance that likely resulted in the jury's
imposition of the death sentences." Id. at 11-12. Petitioner
contends that this testimony was the "critical evidence" of
sexual assault because other evidence, such as Petitioner's
confession, lacked reliability. Id. at 12-13.
2. DFCS Records Under Direct Review
On direct review, the Supreme Court of Georgia found no
Brady violation "based upon the purported failure of the State
to turn over his Department of Family & Children Services (DFCS)
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records that were in its possession." Heidler, 273 Ga. at
55(2). These records were from various counties and all in
regard to Petitioner and his family—not the victims. Dkt. Nos.
14-11, Ex. 32, at 44; 15-13, Ex. 45B, at 121; 15-14, Ex. 46, at
2. The Court found no error because (A) the prosecution had
disclosed DFCS records in its possession and (B) Petitioner
could obtain the records from DFCS by means of his own separate
subpoena. Heidler, 273 Ga. at 55(2).
3. The Relevant Claims in State and Federal Petitions
a. The Brady Claim
Petitioner's initial state habeas petition, filed in 2001,
asserted that the prosecution team failed to disclose "evidence
in its possession which was material, and exculpatory or
favorable to Petitioner on issues of guilt and/or punishment."
Dkt. No. 16-3, Ex. 58 ¶ 19. The habeas petition was amended
twice (in April 2004 and January 2006), each time including a
more specific allegation that "[t]he State suppressed
information favorable to the defense at both phases of the
trial, including but not limited to records from . . . the
Department of Family and Children Services." Dkt. Nos. 18-4,
Ex. 89 ¶ 55; 18-25, Ex. 110, at 27. In comparison, the amended
federal habeas petition claims that "the State suppressed
information favorable to the defense at Petitioner's trial,
including the conviction phase and the sentencing phase,"
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without specifying what evidence was suppressed. Dkt. No. 45
¶ 40.
b. The Strickland Claim
Although Petitioner's state habeas petition does not
specifically assert a claim based on trial counsel's failure to
obtain and present the evidence at issue, Petitioner asserted a
broadly worded claim that could plausibly be read to encompass
it. See, e.g., Dkt. No. 18-25, Ex. 110, at 18 ("Counsel failed
to present material evidence that was reasonably available to
counsel during Petitioner's guilt/innocence and
aggravation/mitigation trials."). Likewise, in the present
action, he asserts a variety of Strickland claims, some of which
could be broadly read as asserting an error based on failure to
explore the victims' backgrounds. See Dkt. No. 45, at 15.
4. Petitioner's State Motions for Discovery
In November 2003 and March 2004, Petitioner moved to
discover DFCS records of two of the victims based on the
evidence mitigating or exculpating Petitioner's guilt for
aggravated sodomy and being "essential to Petitioner's
postconviction claims," without specifying which claims. Dkt.
Nos. 16-17, Ex. 72, at 3; 18-2, Ex. 87, at 3. On January 21,
2004, the state habeas court conducted a two-hour-and-ten-minute
hearing on these and other discovery motions. Dkt. Nos. 59, at
16; 16-29, Ex. 84. There, Petitioner clarified that the
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information would be relevant to his claim for ineffective
assistance of counsel. Dkt. No. 16-29, Ex. 84, at S. The
court, after counsels' arguments and reviewing the contents of
DFCS records in camera with the assistance of two DFCS workers,
concluded that the records contained nothing relevant—that is,
"no instances of any allegations or any complaints of child
molestation except" in regard to Petitioner. Dkt. Nos. 59, at
16; 16-29, Ex. 84, at 46-47.
Petitioner challenges how this proceeding was conducted, as
he believes that the court could not have spent much time
reviewing a "box" of documents and erroneously conducted its
review with "the input and assistance of the two ladies from
[DFCS]," the agency that had moved to quash Petitioner's
subpoena. Dkt. Nos. 59, at 16-17; 16-29, Ex. 84, at 16-17.
From a concluding exchange between the court and DFCS official
about how the court was ruling on pending motions, Petitioner
speculates that the court engaged in an ex parte .discussion with
the DFCS official.' Dkt. No. 59, at 17-18.

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The relevant portion of the exchange in full was:
[DFCS OFFICIAL]: Judge, I need, to know how to draft my
order. And what I have heard you say is that you are
finding the entire contents of the record that you have
reviewed as irrelevant or not otherwise admissible—
THE COURT: Correct.
[DFCS OFFICIAL]: --and are therefore granting--with regard
to Jeff Davis [DFCS] motion to quash you are granting the
motion after in camera inspection.

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In June 2004, Petitioner again moved for discovery of the
victims' records. Dkt. No. 18-2, Ex. 87. In January 2006, the
state habeas court officially denied Petitioner's discovery
requests. Dkt. Nos. 59, at 18; 18-23, Ex. 108. Thereafter, in
August 2009, the state habeas court found barred that portion of
the state petition "wherein Petitioner alleges that the
prosecutor suppressed records from [DFCS], (see Heidler v.
State, 273 Ga. at 55(2))." Dkt. No. 31-12, Ex. 173A, at 4.
5. Exhaustion and Merits of the Two Claims
The Court denies Petitioner's request for discovery of DFCS
records related to two of the victims. The Brady claim is
unexhausted, and even if it was exhausted, Petitioner would
still be denied an opportunity to conduct discovery on the
claim. Although the Strickland claim is exhausted, it does not
justify discovery.
a. No Exhaustion of Petitioner's Brady Claim
Petitioner has failed to exhaust a Brady claim based on the
underlying evidence. In general, a federal court may not grant
habeas relief to a state prisoner who has not exhausted his

THE COURT: correct.
[DFCS OFFICIAL]: And with regard to the Toombs [DFCS]
objection to the request for production, you are denying
the request in toto and ruling in favor of me and the
department on my objection. Is that correct?
THE COURT: That's correct.
Dkt. No. 16-29, Ex. 84, at 56.
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available state remedies. 28 U.S.C. § 2254 (b) (1) (A)
Exhaustion of state remedies requires that the state prisoner
"fairly present federal claims to the state courts in order to
give the State the opportunity to pass upon and correct alleged
violations of its prisoners' federal rights." Duncan v. Henry,
513 U.S. 364, 365 (1995) (quoting Picard v. Connor, 404 U.S.
270, 275 (1971)) (alterations and internal quotation marks
omitted) . Fairly presenting such federal claims to state courts
gives the state "the first opportunity to hear the claim sought
to be vindicated in the federal habeas proceeding." Ogle v.
Johnson, 488 F.3d 1364, 1368 (11th Cir. 2007) (quoting Picard,
404 U.S. at 275-76).
Fair presentation requires presenting federal claims "to
the state courts in a manner to alert them that the ruling under
review violated a federal constitutional right." Pearson v.
Sec'y, Dep't of Corr., 273 F. App'x 847, 849-50 (11th Cir. 2008)
(per curiam) (citing Duncan, 513 U.S. at 365-66) . The claim
presented to the state courts "must include reference to a
specific federal constitutional guarantee, as well as a
statement of the facts that entitle the petitioner to relief."
Reedinan v. Thomas, 305 F. App'x 544, 545-46 (11th Cir. 2008)
(per curiam) (citing Gray v. Netherland, 518 U.S. 152, 162-163
(1996)); see also McNair v. Campbell, 416 F.3d 1291, 1302 (11th
Cir. 2005) (requiring "that a petitioner present[] his claims to
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the state court 'such that a reasonable reader would understand
each claim's particular legal basis and specific factual
foundation'" (quoting Kelley v. Sec'y for Dep't of Corr., 377
F.3d 1317, 1344-45 (11th Cir. 2004))).
In the case at bar, no exhaustion is shown for Petitioner's
claim that, in regard to DFCS records about the victims, "the
State withheld material exculpatory and impeachment evidence
having direct bearing on both his convictions and death
sentences." Dkt. No. 59, at 1. Indisputably, the DFCS records
pertaining only to Petitioner and his family are fully
exhausted: the Supreme Court of Georgia was provided an
opportunity to find no Brady violation on direct review of
Petitioner's trial, and the state habeas proceeding found the
same claim barred for being litigated adversely to Petitioner on
direct appeal. See Heidler, 273 Ga. at 55(2); Dkt. Nos. 31-12,
Ex. 173A, at 4; 46, at 23 (admitting that Petitioner's Brady
violation is properly before the court "[t] theextent th[e]
claim refers to the State's alleged failure to turn over [DFCS]
records," which was rejected on the merits by the Supreme Court
of Georgia, while opining that other suppression claims are
unexhausted). As to the victims' records, the Court cannot come
to the same conclusion.
Indeed, the amended state habeas petition stated a claim
for failure to disclose DFCS records, but an ambiguity exists
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for whether this claim was for only the Petitioner and his
family's records, or also for those of the victims. Although
Petitioner moved for disclosure of the victims' records in the
state habeas case, the motions only say that the evidence is
"essential to Petitioner's postconviction claims." Dkt. Nos.
16-17, Ex. 72, at 3; 18-2, Ex. 87, at 3. However, at the state
evidentiary hearing, Petitioner's counsel clarified that the
evidence was relevant to his claim for ineffective assistance of
counsel. The Court has found nothing in the record where
Petitioner asserts a Brady violation based on these records.
Ultimately, when addressing Petitioner's specific Brady claim
related to DFCS records, the state habeas court implicitly
treated the claim as one in relation to the DFCS records at
issue under direct review. See Dkt. No. 31-12, Ex. 173A, at 4
(citing "Heidler v. State, 273 Ga. at 55(2)"). Therefore, the
Court cannot find that a Brady claim premised upon the victims'
records was present in the state court "such that the reasonable
reader would understand [the] claim's particular legal basis and
specific factual foundation." Kelley, 377 F.3d at 1344-45.
Even assuming the claim was exhausted, the Court would
nevertheless deny Petitioner's request 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,
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the court may authorize a party to conduct discovery upon a
showing of "good cause." 28 U.S.C. § 2254, Rule 6; see also
Bracy, 520 U.S. at 904. 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)) (ellipsis omitted).

"[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 452 F.3d 1234 (11th Cir. 2006)
The Court would be unable to find good cause because there
is no reason to believe that a full development of the facts
would demonstrate that Petitioner is entitled to relief.
Petitioner asserts a Brady claim, in which "the suppression by
the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to
guilt or to punishment, irrespective of the good faith or bad
faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 87
(1963). To establish a Brady violation, "(1) the evidence must
be favorable to the accused, because it is either exculpatory or
impeaching; (2) the evidence must have been suppressed by the
State, either willfully or inadvertently; and (3) the evidence
must be material so as to establish prejudice." United States
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v. Naranjo, 634 F.3d 1198, 1212 (11th Cir. 2011) (quoting
Stephens v. Hall, 407 F.3d 1195, 1203 (11th Cir. 2005)).
The Court cannot find that a full development of the facts
would enable Petitioner to meet his Brady burden. The evidence
speculated to exist would not be material to establish
prejudice. There must be "a reasonable probability that, had
the evidence been disclosed to the defense, the result of the
proceeding would have been different." United States v. Bagley,
473 U.S. 667, 682 (1985) . Beyond the victims' testimony and
positive identification of Heidler, to which Petitioner claims
the records would be relevant, Petitioner's convictions related
to the victim's assault were supported by other compelling
pieces of evidence:
• DNA from seminal fluid found on the victim's panties and
nightgown matched that of Petitioner, Dkt. No. 13-17, Ex.
26, at 445-46, 449-55;
• hours after the assault, an examination of the victim
revealed a "clean new cut" on the anus with no evidence of
healing, id. at 438-42; and
• Petitioner confessed to the crimes shortly after being
detained, Dkt. No. 59, at 6-7.
Facing this evidence, the Court finds that Petitioner has not
shown that DFCS records, even if they have what they are alleged
to contain, would give reason to believe that he may be entitled
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to relief under Brady. As to the testimony's relevance during
sentencing, the death penalty was imposed in relation to
different offenses and aggravating circumstances—that is, that
there were multiple murders that were committed while Petitioner
was involved in the commission of a burglary. See Dkt. No.
12-8, Ex. 2D, at 692-95. Further, the Court countenances the
state habeas court's in camera inspection of the records at
issue and determination that they contained nothing relevant to
Petitioner's case. Although Petitioner speculates that the
inspection was cursory and tainted by the presence of DFCS
officials, this unsupported postulation is insufficient to
establish good cause that the facts would be any different from
those found by the state habeas court. See Williams v.
Humphrey, No. CV412-106, 2013 WL 3877750, at *5 (S.D. Ga. July
26, 2013) (citing Arthur, 459 F.3d at 1311).
b. No Merit to Petitioner's Strickland Claim
In contrast to the Brady claim, the Court finds that
Petitioner fairly presented a Strickland claim in the state
action that was premised upon the underlying evidence sought to
be discovered. At the motions hearing, Petitioner argued that
the victims' records were being pursued for an ineffectiveassistance-of-counsel claim. Dkt. No. 18-25, Ex. 110, at 5.
The court heard argument about the records. Id. at 5-24. Then,
it concluded that the DFCS records were either irrelevant to
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such a claim or otherwise inadmissible. Id. at 47, 56. By
presenting his claim and the specific facts underlying it, the
state court was given an opportunity to address the claim, but
ultimately concluded that there was no evidence to support it.
Although Petitioner did not further raise a Strickland claim on
these specific facts at issue, the state habeas court ultimately
concluded that Petitioner's trial counsel generally conducted a
reasonable investigation, which included gathering voluminous
documents from various sources. Dkt. No. 31-12, Ex. 173A, at
59-60. Therefore, the Court finds that Petitioner's Strickland
claim is exhausted.
Nevertheless, the Court declines to permit discovery of the
information sought. Petitioner's claim is governed by
Strickland v. Washington, 466 U.S. 668 (1984) . To obtain relief
under Strickland, a petitioner must show (1) counsel's
performance was deficient and (2) that deficiency prejudiced
him. Id. at 687. Counsel's performance is deficient when it
falls "below an objective standard of reasonableness," Chandler
v. United States, 218 F.3d 1305, 1312 (11th Cir. 2000), which
means that it is "outside the wide range of professionally
competent assistance." Strickland, 466 U.S. at 690. Further,
"the issue is not what is possible or what is prudent or
appropriate, but only what is constitutionally compelled."

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Chandler, 218 F.3d at 1313 (quoting Burger v. Kemp, 483 U.S.
776, 794 (1987)) (internal quotation marks omitted).
Courts conduct a highly deferential review of counsel's
performance and "'indulge the strong presumption' that counsel's
performance was reasonable and that counsel 'made all
significant decisions in the exercise of reasonable professional
judgment.'" Id. at 1314 (brackets omitted) (quoting Strickland,
466 U.S. at 689-90)). To establish prejudice, there must be "a
reasonable probability that, but for counsel's [deficient
performance], the result of the proceeding would have been
different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome." Strickland, 466 U.S.
at 694. "A petitioner's burden of establishing that his
lawyer's deficient performance prejudiced his case is also
high." Van Poyck v. Fla. Dep't of Corr., 290 F.3d 1318, 1322
(11th Cir. 2002) (per curiam). A petitioner must "affirmatively
prove prejudice." Strickland, 466 U.S. at 693.
As with Petitioner's Brady claim, the shear amount of
evidence blunts any claim that, had trial counsel used any
information of abuse of the victims by others, there would have
a reasonable probability that the proceedings would have been
different. In addition to the victims' statements, Petitioner
confessed on video to his crimes, and DNA evidence connected
Petitioner directly to the victim's assault.
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Because a review of the record reveals no exhausted claim
for which there is good cause to conduct discovery, Petitioner's
request for discovery of DFCS files related to the victims is
DENIED.

B. Jailer Testimony in Regard to Petitioner's Escape
Petitioner asks the Court to allow inspection of the Toombs
County jail and access to its records about improvements since
Petitioner's escape from jail. See Dkt. No. 59, at 23. The
prosecutor's "highly aggravating" closing argument referenced a
jail administrator's testimony, which Petitioner alleges
contained misrepresentations about how Petitioner escaped and
the number of weapons Petitioner possessed during pretrial
detention. See id. at 19-21. Petitioner contends that the
Court's consideration of his motion is proper because he had
moved for access to the premises and records of the Toombs
County jail in the state habeas action, although the motion was
denied. Id. at 22-23. Presently, Petitioner claims that the
evidence is relevant to (A) combat the prosecution's future
dangerousness argument during sentencing, (B) Petitioner's claim
for ineffective assistance of counsel, in that his trial
attorney failed to adequately investigate the circumstances
around Petitioner's escape, and (C) his Brady claim, in that the
prosecution suppressed the information sought. Dkt. No. 63, at
14-16.
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1. Claim Already Determined to be Unexhausted
Petitioner's present motion is premised in part on
testimony about the number of weapons possessed and the skill
needed to dismantle jail doors, cages, and glass. Dkt. No. 59,
at 20. The Court addressed these factual predicates to
Petitioner's argument in the Court's Order on August 23, 2013.
See Dkt. No. 56, at 34-37. There, the Court held that
Petitioner has suffered from a procedural default on paragraph
42 of Claim II, for which Petitioner failed to show cause and
prejudice sufficient to overcome the default. Id. at 33-37.
More specifically, the Court found no inference that the
prosecution withheld evidence or that Petitioner suffered from
actual prejudice given the other evidence of his dangerousness.
Id. at 35-37. Therefore, to the extent that Petitioner's motion
reiterates these factual predicates as creating grounds for
relief, the Court's August 2013 Order controls.
2. Unexhausted Claim Related to the Jail's Construction
The only distinct point concerns information about the
strength of the jail's metal bars and how their poor quality may
have mitigated the potential threat inferred from Petitioner's
escape. See Dkt. No. 59, at 19-20. The Court now finds two
bases to seek the information as unexhausted: (A) the jail
information presented as being misleading and (B) the
information as suppressed evidence underlying a Brady violation.
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a. Misleading Information
After a thorough review of the state habeas record, the
Court cannot find a transparent claim that the State presented
false or misleading testimony regarding his escape, or
challenging the propriety of the of prosecutor's future
dangerousness argument. The crux of Petitioner's argument
focuses on the prosecution's reliance on the jail
administrator's testimony. Id. at 23. Although Petitioner
moved for discovery of the same information in the state habeas
case, Petitioner did not specify for what claim the motion would
further. Instead, Petitioner merely said that the information
is essential to "fully raise postconviction claims arising from
his convictions and death sentence," and that there may be
unique circumstances surrounding the escape in regard to
structural deficiencies. Dkt. No. 16-18, Ex. 73, at 1-2.
Only two paragraphs in the state habeas petition are
arguably related to this argument: paragraphs 52 and 553• Dkt.

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Paragraph 52 asserted:
The State's knowing presentation of false and/or misleading
testimony violated Petitioner's right under Mooney v.
Holohan, 294 U.S. 103, 55 S. Ct. 340 (1935) . The State
allowed its witnesses to convey a false impression to the
jury, and there is a reasonable likelihood that the false
impression could have affected the jury. Giglio v. United
States, 405 U.S. 150 (1972) . The State knowingly or
negligently presented false testimony in pretrial and trial
proceedings, and there is a reasonable likelihood that the
false testimony could have affected the judgment of the
trial court and/or the jury at both phases of the trial.
United States v. Agurs, 427 U.S. 97, 103 (1976)

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No. 18-4, Ex. 89 191 52, 55. Petitioner resurrected paragraph 52
in the state habeas action as paragraph 42 in the present
federal action, which the Court has already ruled to be
procedurally defaulted. Dkt. Nos. 45 ¶ 42; 56, at 33-37. As to
Paragraph 55, it specifically referenced the records from the
Toombs County Detention Center, but it did not reflect
Petitioner's present focus on the veracity of what the jail
administrator said. Compare Dkt. No. 18-4, Ex. 89 ¶ 55
(focusing on the suppression of favorable information) with Dkt.
No. 59, at 23 (focusing on the propriety of the prosecutor's
future dangerousness argument). Indeed, although Petitioner
moved to discover the information in the state habeas action,

Dkt. No. 18-4, Ex. 89 ¶ 52.
Paragraph 55 asserted:
The State suppressed information favorable to the defense
at both phases of the trial, including but not limited to
records from the Georgia Bureau of Investigation, the
Toombs County Detention Center, and the Department of
Family and Children Services. The materiality of the
suppressed evidence undermines the confidence in the
outcome of the guilt/innocence and penalty phases of
Petitioner's trial, and Petitioner's direct appeal, in
violation of Brady v. Maryland, 373 U.S. 667 (1965), and
Kyles v. Whitley, 115 S. Ct. 1555 (1995) . The State has a
continuing obligation to disclose favorable evidence, which
extends through postconviction proceedings, and the State
may be continuing to withhold favorable evidence from
Petitioner. High v. Head, 209 F.3d 1257, 1265 (11th Cir..
April 19, 2000); Thomas v. Goldsmith, 979 F.2d 746, 749-50
(9th Cir. 1992). The State took advantage of Petitioner's
ignorance of the undisclosed favorable information by
arguing to the jury that which it knew or should have known
to be false and/or misleading. United States v.
Sanfilippo, 564 F.2d 176, 179 (5th Cir. 1977)
Dkt. No. 18-4, Ex. 89 ¶ 55.

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Petitioner's past motion focused on the information as
mitigating the "aggravation evidence" during the sentencing
phase—not a Brady violation as asserted in paragraph 55 of the
state habeas action. Dkt. Nos. 16-18, Ex. 73, at 2; 18-5, Ex.
90, at 1-12. Thus, paragraph 55 is inapposite to this specific
claim underlying the discovery request. Therefore, based on a
review of the state habeas petition and its proceedings, the
Court finds that Petitioner's claim for misleading testimony
related to his escape is unexhausted.
Even assuming that the claim was exhausted, the Court would
still deny Petitioner's motion for discovery. There must be
"specific allegations before the court [that] 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 (ellipsis omitted) (quoting
Harris, 394 U.S. at 300) . Even if the facilities were poorly
constructed and eased the difficulty of Petitioner's escape—or
there were any misrepresentations related to construction—the
Court finds no reason to believe that Petitioner would have been
entitled to relief. Assuming evidence revealed defects in the
detention center's design and construction that enabled
Petitioner to escape, this would not substantially mitigate
Petitioner's actions. Cf. Johnson v. State, 246 Ga. 126, 128
(1980) ("[N]egligence of the keeper of the jail is no defense to
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a charge of escape." (internal quotation marks omitted)).
Further, as noted in the Court's August 2013 Order, there was
ample testimony from which the jury could have concluded that
Petitioner was a future danger to society, including:
. Petitioner's statement, while showing the word "Sandman"
tattooed on his knuckles, that the "Sandman was a character
in a series of movies . . . whose soul belonged to the
devil and [who] . . . went around killing families while
they slept."
• Petitioner's making a ten-inch long glass shank, pulling
the shank on a jailer, and threatening to cut the jailer's
head off.
Petitioner's making a shank from his toothbrush with a
lighter.
• Petitioner's involvement in fights with other inmates.
• Petitioner's threatening of multiple guards.
The frequency with which Petitioner was found possessing a
weapon and the jailers' need to "shake down [Petitioner's]
cell . . . on a regular basis" and "account for every
pencil, every piece of paper."
Dkt. Nos. 31-13, Ex. 173B, at 22-23; 56, at 35-36. Given this
abundance of evidence, the Court declines to find that the
sought information could entitle him to relief.

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b. Suppression of Information for Brady Claim
As to the jail information underlying a Brady violation,
Petitioner's claim is unexhausted. Indeed, Petitioner has
asserted a Brady violation in both his state and federal habeas
actions. See Dkt. Nos. 18-25, Ex. 110, Claim V ¶ 55, at 27
(asserting that the State suppressed favorable records from the
Toombs County Detention Center); 45, Claim II ¶ 40, at 25-26
(stating a Brady claim in regard to evidence during the
conviction and sentencing phases). However, in addressing
Petitioner's claim, the state habeas court's inquiry focused on
"records from the Toombs County Detention Center, which show
Petitioner was caught with a weapon eight times." Dkt. No.
31-12, Ex. 173A, at 13. Ultimately, the Court found that this
claim—somewhat distinct from the claim asserted presently about
the general conditions of the facility—suffered from "a
procedural default. Id. at 14. After a thorough review of the
record, the Court finds no transparent assertion of a Brady
violation based upon nondisclosure of jail information related
to Petitioner's escape. Therefore, a Brady claim premised upon
this information is unexhausted.
Even assuming that the Brady claim is exhausted, the Court
would still deny Petitioner's motion for discovery on that
basis. As already discussed, a Brady claim requires that the
prosecution suppressed material information, disclosure of which
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would have created a reasonable probability of a different
result. For reasons already discussed, the sought-after
evidence would not have mitigated the escape, nor could it have
counteracted the other facts from which the jury could have
inferred future dangerousness. Therefore, no good cause for
discovery under a Brady claim would be shown.
3. Exhausted Claim Related to the Jail's Construction
a. Exhaustion Inquiry
As opposed to the other claims, Petitioner's claim based
upon ineffective assistance of counsel has been exhausted, as
admitted in Respondent's Answer. Dkt. No. 46, at 16-17.
Petitioner asserted a Strickland claim in the state and federal
habeas actions based upon trial counsel's failure "to conduct an
adequate investigation into the circumstances surrounding
Petitioner's escape from Toombs County Detention Center, which
would have uncovered readily available and compelling evidence
which would have mitigated the escape." Dkt. Nos. 18-25, Ex.
110, Claim III ¶ 39, at 15; 45, Claim I ¶ 25,. at 10. Indeed, in
the motions hearing, the parties disputed whether the
information was relevant to Petitioner's Strickland claim, and
the court ultimately concluded that the evidence would be
irrelevant to Petitioner's action. Dkt. No. 16-29, Ex. 84, at
39, 42-45. Then, in deciding each of Petitioner's claims, the
state habeas court conducted a thorough review of all his bases
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for ineffective assistance of counsel. Dkt. Nos. 31-12, Ex.
173A, at 15, 21-83; 31-13, 173B, at 84-110. This necessitated a
discussion of counsel's investigation of Petitioner's behavior
in the Toombs County Detention Center. Dkt. Nos. 31-12, Ex.
173A, at 36-38, 49-50, 55; 31-13, Ex. 173B, at 103-04.
Ultimately, the court denied Petitioner's Strickland claim based
upon the detention center and other background records. Dkt.
No. 31-12, Ex. 173A, at 55, 60. Therefore, the Court finds that
the Strickland claim, in regard to the jail information, was
fairly presented and decided by the state habeas court.
b. Good Cause for a Strickland Claim
Despite Petitioner's exhaustion of this claim for
ineffective assistance of counsel, the Court cannot conclude
that discovery would demonstrate that Petitioner is entitled to
relief under Strickland's burdensome standard. For reasons
previously discussed, trial counsel's inquiry into the
facility's condition and other circumstances surrounding
Petitioner's escape would not have, with reasonable probability,
produced a different result. A jailer's negligence is not a
defense to escape, and there were several bases to infer future
dangerousness and reach Petitioner's sentences. Therefore,
based on the foregoing review of the asserted claims and
conclusion that they are unexhausted or without merit,

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Petitioner's request for inspection of the Toombs County Jail
and its records is without merit.
III. Conclusion

For the aforementioned reasons, Petitioner's Motion for
Leave to Conduct Discovery is DENIED.

Dkt. No. 59.

SO ORDERED, this 24TH day of February, 2014.

2VL--.

LISA GODBEY OOOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

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