MARC T. TREADWELL, District Judge.
United States Magistrate Judge Charles H. Weigle recommends denying the Petitioner's petition for a writ of habeas corpus (Doc. 1), as well as the Petitioner's request for judicial notice (Doc. 14). (Doc. 21). The Petitioner has objected to the Recommendation. (Doc. 22). Pursuant to 28 U.S.C. § 636(b)(1), the Court has considered the Petitioner's objection and has made a de novo determination of the portions of the Recommendation to which the Petitioner objects. For the reasons stated hereinafter, the Recommendation is
In 2012, the Petitioner was convicted in the Superior Court of Peach County, Georgia for armed robbery. (Doc. 17-5, at 1-2). The Petitioner's conviction was affirmed on appeal in March of 2014. Id. at 3. In April of 2014, the Petitioner filed a habeas corpus petition in the Superior Court of Calhoun County, Georgia. Id. at 1, 3. The Petitioner raised four grounds in the state habeas proceeding—ineffective assistance of counsel due to his lawyer's: (1) failure to move to suppress all evidence resulting from his allegedly defective arrest warrant; (2) failure to appeal on the basis of improper comments made by the judge to the jury; (3) failure to investigate co-indictee, Shane Bedford, regarding statements he allegedly wrote to another co-indictee— Christopher Graddick (the statement allegedly would have corroborated the Petitioner's testimony and would have undermined Mr. Graddick's adverse testimony at the Petitioner's trial); and (4) failure to raise the "strongest issues" on appeal, namely, the impropriety of allowing Mr. Graddick to testify in light of his mental condition and his status as a co-indictee. Id. at 4-5. The state habeas court denied the Petitioner's petition for habeas corpus in April of 2015. Id. at 14. On September 8, 2015, the Georgia Supreme Court denied the Petitioner's application for a certificate of probable cause to appeal the trial court's denial of a writ of habeas corpus. (Doc. 17-6, at 1).
The Petitioner filed this action seeking a writ of habeas corpus on October 1, 2015. (Doc. 1). Piecing together the Petitioner's numerous filings,
(Doc. 21, at 6). For ease of reference, the Court addresses the Petitioner's claims according to the number assigned by the Magistrate Judge in the above list.
The Magistrate Judge concluded that claim 6 (failure to raise actual innocence on appeal), claim 7 (Brady), and claim 8 (misstatements by counsel) were not raised in the state habeas action and thus are procedurally barred.
The Magistrate Judge recommends that claim 5 (ineffective assistance, failure to raise strongest issues on appeal/sufficiency of evidence);
Construing the Petitioner's Objection liberally, it appears that he objects to the Magistrate Recommendation as to claim 3 (ineffective assistance, investigation/Bedford-Graddick note), claim 7 (Brady violation as to Bedford-Graddick note); claim 1 (ineffective assistance, arrest warrant), as well as part of claim 6—that trial counsel remained counsel on appeal. (Doc. 22). Due to the ambiguity of the Petitioner's Objection, the Court has conducted a de novo review of all of the Magistrate Judge's Recommendation. As to the above-listed objections, the Court notes the following:
The substance of the Petitioner's objection as to claim 3 (Petitioner's ineffectiveness-of-counsel claim regarding investigation of Mr. Bedford and the alleged Bedford-Graddick note) was fully addressed by the Magistrate Judge. (Doc. 21, at 20-22).
Any Brady claim related to the alleged Bedford-Graddick note is clearly procedurally defaulted because the Petitioner did not raise it in his state proceedings.
The substance of the Petitioner's objection as to claim 1 (the contentions regarding his arrest warrant) was fully addressed by the Magistrate Judge. (Doc. 21, at 16-18).
In his Objection, the Petitioner reasserts part of claim 6, arguing that he had a Sixth Amendment right to the appointment of new counsel, "to raise a claim of ineffective assistance of trial counsel because trial counsel could not reasonably be expected to assert or argue his own ineffectiveness" on appeal.
Construing the Petitioners' right-to-counsel objection liberally, it appears that he argues that: (1) he had an absolute constitutional right to have different appellate counsel than trial counsel in his criminal case, or (2) he has a constitutional right to counsel in his habeas actions as to any ineffective-assistance claims arising from his criminal trial and direct appeal. The Petitioner never raised these issues before the state courts. Therefore, they are unexhausted and procedurally defaulted.
The Petitioner's concern evidences an uneasiness that his trial counsel—Mr. Bearden—may have, through his inability to see his own faults, overlooked his own ineffectiveness as a ground for appeal. The Petitioner's concern has not been overlooked by the Supreme Court. See, e.g., Halbert v. Michigan, 545 U.S. 605, 620 n.5 (2005) ("A lawyer may not, however, perceive his own errors . . . ."). However, the Supreme Court has not recognized a constitutional right to have different counsel on direct appeal; rather, the question is whether counsel on appeal provided effective assistance under the two-part test set forth in Strickland v. Washington, 466 U.S. 668 (1984).
The Petitioner was able to raise his concerns in the state habeas court, albeit for the first time and without counsel. "Because an attorney cannot reasonably be expected to assert or argue his or her own ineffectiveness, claims of ineffective assistance of counsel are often properly raised for the first time in a habeas corpus petition." White v. Kelso, 261 Ga. 32, 32, 401 S.E.2d 733, 734 (1991). The Supreme Court has not yet recognized any constitutional right to counsel in a collateral proceeding, such as the Petitioner's habeas action. See Coleman v. Thompson, 501 U.S. 722, 752, 755 (1991) (holding that there is no right to counsel on habeas appeal, but leaving open whether there might be a right to habeas counsel in the state habeas trial court on first-opportunity claims). The Eleventh Circuit has expressly ruled that the Constitution does not grant such a right. Hill v. Jones, 81 F.3d 1015, 1024-26 (11th Cir. 1996).
In his Objection, the Petitioner attempts to raise several claims not raised before the Magistrate Judge. Over half a year before entering his Recommendation, the Magistrate Judge ordered the Petitioner to "amend his petition to include every unalleged possible constitutional error or deprivation entitling him to federal habeas corpus relief." (Doc. 13, at 1). The Petitioner never complied, yet he now seeks to raise new bases of relief in his Objection.
The Court construes the Objection as a motion to amend the petition to include these new bases of relief. Newsome v. Chatham Cty. Det. Ctr., 256 F. App'x 342, 344 (11th Cir. 2007). The Court has discretion to grant or deny such a motion. Williams v. McNeil, 557 F.3d 1287, 1292 (11th Cir. 2009) ("[A] district court has discretion to decline to consider a party's argument when that argument was not first presented to the magistrate judge."); Stephens v. Tolbert, 471 F.3d 1173, 1176 (11th Cir. 2006) (holding district court does not abuse "its discretion when it accepts an argument that had not been presented to the magistrate judge"). The Court
The Petitioner contends that his armed robbery conviction is void because "the judge constructively amended the indictment by charging the jury on a party to a crime not charged in the indictment" (and makes an accompanying Strickland claim as to his counsel's failure to object). (Doc. 22, at 6). The Petitioner cites Stirone v. United States, which stands for the proposition that the crimes charged to the jury cannot be broader than the indictment, as doing so would constructively amend the indictment in violation of the "substantial right to be tried only on charges presented in an indictment returned by a grand jury." 361 U.S. 212, at 217 (1960). The Petitioner argues that Stirone is implicated because the trial judge charged the jury that a person can be guilty of a crime by either directly committing the crime, by intentionally helping in the commission of the crime, or by intentionally directing someone else to commit the crime. (Doc. 22, at 2-3). The Eleventh Circuit has expressly rejected this argument, stating that "an individual indicted as a principal may be convicted on evidence showing that he aided and abetted the commission of the offense, regardless of whether the indictment included an aiding-and-abetting charge." United States v. Tucker, 402 F. App'x 499, 502 (11th Cir. 2010). A review of the record indicates that the criminal charge within the meaning of Stirone—the armed-robbery charge read to the jury—was clearly within the scope of the armed-robbery indictment. (Docs. 17-11, at 107, 116-17; 17-12, at 5-6, 27). This claim is without merit;
The Petitioner makes a bare assertion that trial counsel testified falsely at the state habeas hearing, but he gives no indication how he was prejudiced or how the state habeas court erred. (Doc. 9-1, at 3). A review of the habeas court trial transcript shows that the Petitioner does not demonstrate, nor clearly argues, that trial counsel's testimony at that hearing was false. (Doc. 17-7). Bare, unsupported factual assertions are not sufficient to state a claim; accordingly, any amendment allowing such a "claim" to proceed would be futile.
Accordingly, the Recommendation is
The Magistrate Judge also recommends that the Court deny a certificate of appealability because it does not appear that Petitioner has made a substantial showing of the denial of a constitutional right. (Doc. 21, at 23).
A prisoner seeking to appeal a district court's final order denying his petition for writ of habeas corpus has no absolute entitlement to appeal but must obtain a certificate of appealability ("COA"). 28 U.S.C. § 2253(c)(1)(A). As amended effective December 1, 2009, Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts provides that "[t]he district court must issue or deny a [COA] when it enters a final order adverse to the applicant," and if a COA is issued "the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2)."
Pursuant to 28 U.S.C. 2253(c)(2), a COA may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." This requires a demonstration that "jurists of reason could disagree with the district court's resolution of [a petitioner's] constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). When the Court denies a habeas petition on procedural grounds without reaching the underlying constitutional claims, as in relation to procedurally barred claims, the petitioner must show that "jurists of reason would find it debatable whether the district court was correct in its procedural ruling;" and (2) "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right." Slack v. McDaniel, 529 U.S. 473, 484 (2000). As to claims determined on the merits, the "petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Id. The Petitioner has not made these showings. Therefore, the Petitioner is
Even assuming that such claims are not procedurally barred, they do not entitle the Petitioner to relief. Counsel's misstatement of one date in direct examination is clearly not enough to satisfy the doubly deferential Strickland standard applicable in this action, particularly in light of the substantial evidence against the Petitioner. See Harrington v. Richter, 562 U.S. 86, 89 (2011) ("The question under § 2254(d) is not whether counsel's actions were reasonable, but whether there is any reasonable argument that counsel satisfied Strickland's deferential standard."). The Petitioner's three-word reference in his Amended Petition to his counsel's failure to raise an "actual innocence" claim on appeal (Doc. 9, at 17) is insufficient to state any cognizable claim. If the Petitioner means by this that trial counsel failed to raise a "sufficiency of the evidence" claim, that claim is addressed in note 3 supra. If the Petitioner refers to counsel's failure to present evidence proving his innocence, the Petitioner, beyond failing to show that such a claim could be brought on direct appeal, does not demonstrate evidence that would have been sufficient to support such a claim. Finally, to any extent that the Petitioner seeks to raise an actual innocence claim here, federal habeas relief is not available for freestanding actual innocence claims. Herrera v. Collins, 506 U.S. 390, 400-01 (1993).
