JUSTIN S. ANAND, Magistrate Judge.
Petitioner, a Georgia prisoner, challenges via a 28 U.S.C. § 2254 habeas corpus petition his April 8, 2005 convictions in the Superior Court of Fulton County. (Doc. 1).
Petitioner and his co-defendant, Scott Walker, were indicted in Fulton County, Georgia on June 20, 2003 for malice murder, felony murder, burglary, aggravated assault and possession of a firearm during a crime committed on April 4, 2003. Charleston v. State, 743 S.E.2d 1, 2 n.1 (Ga. 2013). In April 2005, Petitioner and Walker were convicted on all counts, and Petitioner received a life sentence for malice murder and a consecutive term of five years for the firearm conviction. Id.
Id. at 3-4 (citation altered).
Petitioner raised the following claims on direct appeal:
1. the State failed to put Jonathan Finney, the victim's brother, on its witness list, as required by OCGA § 17-16-3, and [] the trial court erred in not granting [Petitioner] a continuance before Jonathan testified;
2. the trial court erred in denying [Petitioner's] motion to sever his trial from Walker's trial;
3. trial counsel was ineffective in failing to object to Jonathan Finney's testimony on the ground that the State failed to put him on its witness list as required by OCGA § 17-16-3;
4. trial counsel was ineffective in failing to object when Lyman twice referred in passing to [Petitioner] being in prison, which, he alleges, improperly placed his character in issue;
5. trial counsel was ineffective in failing to move to suppress evidence found during the search of [Petitioner's] father's home;
6. [after Walker said during the sentencing hearing that Petitioner] "did not do it. I did it. He didn't know nothing were going to go down like that[,]". . . the trial court erred in failing to grant [Petitioner's] motion for new trial based on this allegedly "newly discovered evidence";
7. the evidence was insufficient to support Petitioner's convictions. Id. at 4-6; (see Doc. 13-7 at 98-99). On March 25, 2013, the Supreme Court of Georgia denied each of these claims and affirmed Petitioner's convictions and sentences. Charleston, 743 S.E.2d at 4-6.
In his original state habeas petition, filed on February 18, 2014 (Doc. 13-1 at 1), Petitioner alleged that appellate counsel provided ineffective assistance
1. when litigating his amended motion for new trial on the ground of . . . newly discovered evidence;
and that appellate counsel also provided ineffective assistance by failing to raise the following claims in Petitioner's amended motion for new trial:
2. the trial court failed to act as an impartial judicial sovereign when it prevented the Petitioner from obtaining and submitting newly discovered evidence that would negate his guilt of the offenses for which he was convicted;
3. trial counsel rendered ineffective assistance when she failed to file a pre-trial motion to suppress unreliable identification testimony of Cheryll Sewell (State's key witness) and prevent in-court identification following an impermissibly suggestive pre-trial photo line-up identification procedure conducted by police;
4. trial counsel rendered ineffective assistance when she failed to move for a mistrial based on State's violation of due process;
5. trial counsel rendered ineffective assistance when she failed to object to State's improper closing arguments that compromised the fundamental fairness of trial;
6. trial counsel rendered ineffective assistance when she failed to make a timely objection on the ground that the State improperly admitted hearsay motive evidence that compromised the fundamental fairness of trial.
(Id. at 10-14).
In state habeas ground 7, which Petitioner raised in his first amended state habeas petition, he alleged that "he is actually innocent" of his crimes of conviction.
In an order entered on November 7, 2014, the state habeas court denied all of Petitioner's grounds for relief. (Doc. 13-4). On May 11, 2015, the Supreme Court of Georgia denied Petitioner's application for a certificate of probable cause ("CPC") to appeal the denial of his state habeas petition. (Doc. 13-5).
Petitioner signed and filed his original federal habeas petition on May 28, 2015 (Doc. 1 at 9), stating that he wishes to raise grounds 1 through 7, as set forth on attached page 2, which are the claims he raised on direct appeal (id. at 5, 11). Petitioner signed and filed an amended federal habeas petition on October 26, 2015, raising six additional grounds—five alleging ineffective assistance of appellate counsel and one asserting his actual innocence. (Doc. 12). He filed a second amended habeas petition (hereinafter "supporting brief") on December 15, 2015. (Doc. 16).
A federal court may not grant habeas corpus relief for claims previously decided on the merits by a state court unless the decision (1) "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or (2) "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). A state court's determination of a factual issue is presumed correct unless the petitioner rebuts that presumption "by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
In Williams v. Taylor, 529 U.S. 362, 412 (2000), the Supreme Court explained that, in applying 28 U.S.C. § 2254(d), a federal habeas court first ascertains the "clearly established Federal law" based on "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." The federal habeas court then considers whether the state court decision is "contrary to" that clearly established federal law, i.e., whether the state court "applies a rule that contradicts the governing law set forth" in Supreme Court cases, or "confronts a set of facts that are materially indistinguishable from" those in a Supreme Court decision "and nevertheless arrives at a result different from" that decision. Id. at 405-06.
If the federal habeas court determines that the state court decision is not contrary to clearly established federal law, it then considers whether the decision is an "unreasonable application" of that law, i.e., whether "the state court identifies the correct governing legal principle" from the Supreme Court's decisions, "but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. "For purposes of § 2254(d)(1), an unreasonable application of federal law is different from an incorrect application of federal law." Harrington v. Richter, 562 U.S. 86, 101 (2011) (internal quotations omitted). "Under § 2254(d)(1)'s `unreasonable application' clause . . . a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly [but r]ather, that application must also be unreasonable." Williams, 529 U.S. at 411. "As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Richter, 562 U.S. at 103 (emphasis added).
The Supreme Court set forth the standard for evaluating claims of ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668 (1984). "An ineffectiveness claim . . . is an attack on the fundamental fairness of the proceeding whose result is challenged." Id. at 697. The analysis involves two components, but a court need not address both if the petitioner "makes an insufficient showing on one." Id. First, a federal habeas court determines "whether, in light of all the circumstances, the identified acts or omissions [of counsel] were outside the wide range of professionally competent assistance." Id. at 690. The court "must be highly deferential" in scrutinizing counsel's performance and "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. In other words, the petitioner "must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. (Internal quotations omitted). "Given the strong presumption in favor of competence, the petitioner's burden of persuasion—though the presumption is not insurmountable—is a heavy one." Chandler v. United States, 218 F.3d 1305, 1314 (11th Cir. 2000) (en banc).
Second, a federal habeas court determines whether counsel's challenged acts or omissions prejudiced the petitioner, i.e., whether "there is a reasonable probability"—one "sufficient to undermine confidence in the outcome"—that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. "The likelihood of a different result must be substantial, not just conceivable." Richter, 562 U.S. at 112 (noting that "the difference between Strickland's prejudice standard and a more-probable-than-not standard is slight and matters only in the rarest case" (internal quotations omitted)).
"Surmounting Strickland's high bar is never an easy task. . . . Even under de novo review, the standard for judging counsel's representation is a most deferential one. . . . The question is whether an attorney's representation amounted to incompetence under prevailing professional norms, not whether it deviated from best practices or most common custom." Id. at 105 (citations and internal quotations omitted).
Id. (citations and internal quotations omitted) (emphasis added).
In ground one of his federal habeas petition, Petitioner alleges: "The State acted improperly when [it] elicited the testimony of the victim's brother without properly informing the defense or giving [it] an opportunity to investigate both the witness and his testimony." (Doc. 1 at 11; see Doc. 13-7 at 103 (Petitioner's direct appeal brief)). Petitioner argued on direct appeal: "It was error to allow the State to suppress exculpatory evidence from the Defense. That is, the state acted improperly when [it] elicited the testimony of Jonathan Finney, the victim's brother, without properly informing the defense or giving [it] an opportunity to investigate both the witness and his testimony." (Doc. 13-7 at 103). The Supreme Court of Georgia construed Petitioner's claim as alleging that "the State failed to put Jonathan Finney, the victim's brother, on its witness list, as required by OCGA § 17-16-3, and [] the trial court erred in not granting him a continuance before Jonathan testified." Charleston, 743 S.E.2d at 4. The court concluded that Petitioner "failed to raise this discovery objection or move for a continuance in the trial court, and he is therefore barred from raising the issue on appeal." Id. The court also addressed the merits of the claim:
Id. (footnote and citation omitted). The court noted:
Id. at 4 n.2.
Petitioner argues here, in his supporting brief, apparently for the first time:
(Doc. 16 at 3). The conversation to which Petitioner refers allegedly occurred on April 3, 2003, one day before the shooting. In it, the victim, Edric Finney, allegedly told Jonathan Finney, his brother, that someone named Red had given Edric the pistol and had said that Edric "could keep the pistol because Edric had [done Red] a favor by keeping him and his girlfriend from going to jail." (Id. at 4).
But the evidence summarized by the Supreme Court of Georgia to support Petitioner's guilty verdicts contradicts Petitioner's argument here, showing instead that he and Walker had confronted Lyman, the victim's girlfriend, about a firearm belonging to Petitioner on more than one occasion "in the days before [the] murder." See Charleston, 743 S.E.2d at 3-4 (concluding, without mentioning Jonathan Finny or his testimony, that there was sufficient evidence to convict Petitioner, and noting: "On the day of the shooting, Walker came to Lyman's apartment again to ask her about the gun and Finney's whereabouts. Finney, who overheard the conversation from inside the apartment, emerged to talk to Walker, spoke with Walker for 15-20 minutes out of Lyman's earshot, and then returned to the apartment. Lyman also testified that Finney had been hiding a gun under the mattress in her bedroom.").
Petitioner's ground one claim thus fails because he has not "show[n] that the [Supreme Court of Georgia's] ruling on . . . [the merits of the claim] was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." See Richter, 562 U.S. at 103. Moreover, not only was Petitioner's ground one claim in state court couched solely in terms of state—not federal—law, but he also did not mention in his direct appeal brief the aspect of the claim that he elaborates here. Indeed, Respondent argues that Petitioner's federal habeas ground one claim is procedurally defaulted not only for this reason but also because, as the Supreme Court of Georgia held before addressing the merits of the claim, Petitioner did not preserve for appellate review the error alleged in ground one. (See Doc. 11-1 at 10-14). The outcome here is thus over-determined —but however one views Petitioner's ground one claim, it fails.
In ground two, Petitioner claims: "Trial counsel was ineffective in failing to object to the testimony of the victim's brother. The defense was not properly informed or given an opportunity to investigate both the witness and his testimony." (Doc. 1 at 11; see Doc. 13-7 at 104). Petitioner argued on direct appeal:
(Doc. 13-7 at 105-06). The Supreme Court of Georgia construed this claim as alleging that Petitioner's "trial counsel was ineffective in failing to object to Jonathan Finney's testimony on the ground that the State failed to put him on its witness list as required by OCGA § 17-16-3." Charleston, 743 S.E.2d at 5. The court rejected the claim:
Id. (citation omitted).
Petitioner argues here, in his supporting brief:
(Doc. 16 at 5).
Petitioner failed to show in state court that he was prejudiced by trial counsel's allegedly deficient performance. He has offered only speculation to that effect in his supporting brief here. The Supreme Court of Georgia found his ground two claim to be lacking in merit, and this Court finds no error in the court's analysis that is "well understood and comprehended in existing law beyond any possibility for fairminded disagreement," Richter, 562 U.S. at 103, especially in light of the Supreme Court of the United States's admonition that a claim of ineffective assistance of counsel fails if there is "any reasonable argument that counsel satisfied Strickland's deferential standard," id. at 105 (emphasis added).
Finney's testimony was generally limited to the circumstances of his recovery of the Ruger pistol from Lyman's apartment and his later delivery of it to the police, although he also testified about his familiarity with the defendants—other than the one incident noted above, in footnote 4, he had none—and about his belief that Lyman may have been involved in the murder, although not as the shooter, based on her telephone call to Edric the night before the murder, during which Jonathan overheard her asking Edric to "please come home" because there were "some boys . . . coming by [the apartment] saying they're going to kill you." (See Doc. 13-13 at 51-52, 53; see generally id. at 38-54). But Lyman also testified about the Ruger and its eventual delivery to the police, and about Jonathan's suspicions (see Doc. 13-12 at 131-62; Doc. 13-13 at 1-36), and this Court therefore struggles to discern how Petitioner's defense was prejudiced by Jonathan's testimony. Indeed, because Jonathan testified about a friendly relationship between Petitioner and the victim on the one occasion when he saw them together, his testimony, if it had any impact at the trial, may actually have helped Petitioner's defense. Ground two fails.
In ground three, Petitioner alleges: "Trial counsel was ineffective in failing to object to repeated references to [Petitioner] being in prison." (Doc. 1 at 11; see Doc. 13-7 at 106). The Supreme Court of Georgia construed this claim as alleging that Petitioner's "trial counsel was ineffective in failing to object when Lyman twice referred in passing to [Petitioner] being in prison, which, he alleges, improperly placed his character in issue." Charleston, 743 S.E.2d at 5. The court rejected this claim:
Id. at 5-6. Aside from recounting Lyman's testimony, Petitioner has failed to offer any argument here in support of this claim, and thus he has failed show any error in the Supreme Court of Georgia's rejection of it. (See Doc. 16 at 6). That court found Petitioner's ground three claim to be lacking in merit, and this Court discerns no error in its analysis that is "well understood and comprehended in existing law beyond any possibility for fairminded disagreement," Richter, 562 U.S. at 103, especially in light of the Supreme Court of the United States's admonition that a claim of ineffective assistance of counsel fails if there is "any reasonable argument that counsel satisfied Strickland's deferential standard," id. at 105 (emphasis added); see Williams v. Head, 185 F.3d 1223, 1228 (11th Cir. 1999) ("[W]here the record is incomplete or unclear about [trial counsel's] actions, [the court] will presume that he did what he should have done, and that he exercised reasonable professional judgment."). Because there is no evidence as to why trial counsel failed to make a contemporaneous objection to Lyman's passing references to Petitioner's being in jail just prior to the murder, the Court must presume, as did the Supreme Court of Georgia, that trial counsel exercised reasonable professional judgment in foregoing any such objection—for example, so as not to emphasize Lyman's testimony to the jury. Ground three fails.
In his fourth ground for relief, Petitioner alleges: "Trial counsel was ineffective in failing to file a motion to suppress illegally obtained evidence." (Doc. 1 at 11; see Doc. 13-7 at 107). On direct appeal, Petitioner argued: "The search warrant responsible for this evidence was based on an affidavit containing false statements. [T]he affidavit said that an eyewitness to this event positively identified two suspects. The only two witnesses were Ms. Lyman and Ms. Sewell[,]" but neither could positively identify Petitioner as one of the suspects. (Doc. 13-7 at 107-08). The Supreme Court of Georgia construed this claim as alleging that "trial counsel was ineffective in failing to move to suppress evidence found during the search of [Petitioner's] father's home." Charleston, 743 S.E.2d at 6. The court rejected this claim:
Id.
Petitioner argues here, in his supporting brief:
(Doc. 16 at 6). Once again, Petitioner has failed to cast doubt on the correctness of the Supreme Court of Georgia's denial of this ground for relief. For the same reasons as for grounds two and three, also alleging ineffective assistance of trial counsel, this ground four claim fails.
In ground five, Petitioner contends: "The trial court erred in denying [his] motion for severance." (Doc. 1 at 11; see Doc. 13-7 at 108). On direct appeal, Petitioner argued:
(Doc. 13-7 at 108-09). The Supreme Court of Georgia construed this claim as alleging that "the trial court erred in denying [Petitioner's] motion to sever his trial from Walker's." Charleston, 743 S.E.2d at 4. The court rejected this claim
Id. (citation omitted).
Petitioner argues here, in his supporting brief:
(Doc. 16 at 7-8).
A district court in this Circuit recently explained the controlling caselaw on this issue:
Butler v. Brown, CV 113-016, 2014 U.S. Dist. LEXIS 92917, at *26-27 (S.D. Ga. June 11) (citations and formatting altered) (internal quotations omitted or added), adopted by 2014 U.S. Dist. LEXIS 92492 (S.D. Ga. July 8, 2014).
Petitioner and Walker faced identical charges and did not present antagonistic defenses; and given the following facts—they both visited Lyman's apartment in the days leading up to the murder, seeking the return of a gun the victim had in his possession; they were seen together shortly before the shooting; they were identified at the scene; the vehicle Petitioner was driving that night was left parked at the apartment building where the shooting occurred; and they were found together a short time later at Petitioner's father's house, see Charleston, 743 S.E.2d at 3-4—Petitioner has not shown that he was unfairly prejudiced by the evidence adduced against Walker or that the Supreme Court of Georgia's "ruling on . . . [his ground five claim regarding severance] was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement," see Richter, 562 U.S. at 103.
In ground six, Petitioner asserts: "The trial court erred in not granting a new trial based on the spontaneous utterance of co-defendant Scott Walker, clearing [Petitioner]." (Doc. 1 at 11; see Doc. 13-7 at 109). Petitioner argued on direct appeal:
(Doc. 13-7 at 109-10). The Supreme Court of Georgia construed this claim as alleging that "the trial court erred in failing to grant [Petitioner's] motion for new trial based on this allegedly `newly discovered evidence.'" Charleston, 743 S.E.2d at 6. The court rejected this claim:
Id.
Petitioner argues here, in his supporting brief:
(Doc. 16 at 8).
It is noteworthy in this regard that in rejecting Petitioner's claim of ineffective assistance of appellate counsel for failing to properly litigate Petitioner's claim regarding the newly discovered evidence of his innocence, the state habeas court stated: "[Walker's] testimony at Petitioner's September 19, 2014, habeas evidentiary hearing was extremely unfavorable to Petitioner, as [Walker] asserted he had only made such a statement at the sentencing hearing because Petitioner told him [it] would get them both a new trial." (Doc. 13-4 at 13). So much for Petitioner's claim that Walker's statement at sentencing is evidence of his actual innocence that warranted a new trial. Petitioner, indeed, has not "show[n] that the [Supreme Court of Georgia's] ruling on . . . [his ground six claim] was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." See Richter, 562 U.S. at 103.
In ground seven, Petitioner alleges: "The evidence was insufficient as a matter of a law to sustain a verdict." (Doc. 1 at 11; see Doc. 13-7 at 110). On direct appeal, Petitioner argued:
(Doc. 13-7 at 110-11). In fact, however, there was a third witness who identified Petitioner and Walker as the two individuals involved in the shooting, see Charleston, 743 S.E.2d at 3 (discussing testimony of Kahiem Maddox), as well as much additional evidence implicating Petitioner in his crimes of conviction, see id. at 3-4.
The Supreme Court of Georgia concluded that "the evidence presented at trial. . . was sufficient to authorize a rational jury to find [Petitioner] guilty beyond a reasonable doubt of [his] crimes of [conviction,]" noting that "[e]ven if [he] was not the shooter, his conduct with Walker before, during, and after the shooting supports his convictions as a party to the crimes." Id. at 4 (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979) (evidence sufficient to convict beyond a reasonable doubt); OCGA § 16-2-20 ("When a person is a party to a crime")).
Petitioner argues here, in his supporting brief:
(Doc. 16 at 9). These arguments fail. The circumstantial evidence of Petitioner's guilt was overwhelming. Just as for grounds five and six, and for the reasons stated in the discussion of those grounds, Petitioner has not "show[n] that the [Supreme Court of Georgia's] ruling on . . . [his ground seven claim] was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." See Richter, 562 U.S. at 103.
In his first amended federal habeas petition, Petitioner raises six additional grounds for relief, numbered consecutively to his original seven grounds. The first five new grounds claim ineffective assistance of appellate counsel, alleging first that appellate counsel provided ineffective assistance
8. when litigating [Petitioner's] amended motion for new trial on the ground of newly discovered evidence;
and also alleging that appellate counsel provided ineffective assistance by failing to raise the following claims in Petitioner's amended motion for new trial:
9. that the trial Court failed to act as an impartial judicial sovereign when it prevented the Petitioner from obtaining and submitting newly discovered evidence that would negate his guilt of [his] offenses [of conviction];
10. that trial counsel rendered ineffective assistance when she failed to file a pre-trial motion to suppress unreliable identification testimony of Cheryll Sewell (State's key witness) and prevent an in-court identification following an impermissibly suggestive pre-trial photo line-up identification procedure conducted by police;
11. that trial counsel rendered ineffective assistance when she failed to move for a mistrial based on State's violation of due process;
12. that trial counsel rendered ineffective assistance when she failed to object to the State's improper closing arguments that compromised the fundamental fairness of trial.
(Doc. 12 at 7-15; see Doc. 16 at 9-20). Petitioner also claims:
13. [He] is actually innocent of the offenses [of] which he has been convicted and [for which he] is currently being held [by] the Georgia Department of Corrections serving a life sentence. (This is not a freestanding claim. [His] claim of actual innocence is premised on the aforementioned claims of this Petition.).
(Doc. 12 at 15; Doc. 16 at 20). These are six of the seven claims that Petitioner raised in his state habeas petition, as first amended. (See Docs. 13-1, 13-2).
All of these claims are either time-barred or without merit. The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") requires that an application for federal habeas review of a state court judgment of conviction be filed within one year of the latest of the following dates:
28 U.S.C. § 2244(d)(1). And "the federal statute of limitations requires a claim-by-claim approach to determine [the] timeliness" of 28 U.S.C. § 2254 claims. Zack v. Tucker, 704 F.3d 917, 918 (11th Cir. 2013) (en banc).
If the record does not suggest otherwise, and here it does not, the limitations period for a federal habeas petition is triggered by the finality of the judgment of conviction at issue, i.e., "by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). Because Petitioner received direct review of his judgment of conviction in the Supreme Court of Georgia, but he did not seek direct review in the Supreme Court of the United States within the 90-day time limit for doing so, his convictions became final under § 2244(d)(1)(A) at the close of that 90-day window. See SUP. CT. R. 13.1 (allowing 90 days to file certiorari petition in Supreme Court of the United States seeking review of "a judgment. . . entered by a state court of last resort"); Bond v. Moore, 309 F.3d 770, 774 (11th Cir. 2002) (holding that "statute of limitations under 28 U.S.C. § 2244(d) should not. . . beg[i]n to run until this 90-day window ha[s] expired").
The Supreme Court of Georgia affirmed Petitioner's judgment of conviction on March 25, 2013. The period for Petitioner to seek review in the Supreme Court of the United States ended on June 24, 2013, the first business day after the expiration of the 90-day window for seeking that review. On that date, Petitioner's judgment of conviction became final for purposes of the federal habeas statute of limitations. He filed his state habeas petition (Doc. 13-1) 239 days later, on February 18, 2014. The federal limitations period was then tolled until the Supreme Court of Georgia denied his CPC application on May 11, 2015 (Doc. 13-5), at which point it began to run again. See 28 U.S.C. § 2244(d)(2) (statutory tolling applies when "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending"); but see Smallwood v. Sec'y, Dep't of Corr., 178 Fed. Appx. 944, 945 (11th Cir. 2006) (citing Duncan v. Walker, 533 U.S. 167, 181 (2001), to the effect that a previously filed federal habeas petition—here, Petitioner's original, unamended petition—does not toll the federal limitations period).
Petitioner first raised grounds eight through thirteen here on October 26, 2015 (Doc. 12), after another 167 days had passed untolled since May 11, 2015, for a total of 406 days. By that time, the 365-day federal limitations period had expired for grounds eight through thirteen.
Federal Rule of Procedure 15(c)(1)(B) provides, however, that "[a]n amendment to a pleading relates back to the date of the original pleading when the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out-or attempted to be set out-in the original pleading" (formatting altered); see Smith v. Buss, No. 3:09cv278/MCR/EMT, 2011 U.S. Dist. LEXIS 19637, at *18-19 (N.D. Fla. Feb. 4) ("[R]elation back is allowable only `when the claims added by amendment arise from the same core facts as the timely filed claims, and not when the new claims depend upon events separate in "both time and type" from the originally raised episodes.'" (citing Mayle v. Felix, 545 U.S. 644, 653-54, 657, 664 (2005), to the effect that "the test for whether an amended petition relates back [is] whether the original and amended claims `are tied to a common core of operative facts.'" (footnote omitted))), adopted by 2011 U.S. Dist. LEXIS 19293 (N.D. Fla. Feb. 25, 2011).
The Eleventh Circuit has explained the application of the relation back rule as follows:
McLean v. United States, No. 04-13534, 2005 U.S. App. LEXIS 19546, at *2-5 (11th Cir. Sept. 8, 2005) (citations and internal quotation marks omitted).
In his original habeas petition, in grounds one through seven, Petitioner raises claims regarding the testimony of Jonathan Finney and Pamela Lyman, the search of his father's home, the sufficiency of the evidence, and the trial court's failure to sever his trial from his co-defendant's and its failure to grant his motion for new trial based on his co-defendant's "confession" at the sentencing hearing. In grounds ten through twelve, Petitioner raises claims regarding a witness's identification of him and the alleged due process violations involving that identification (see Doc. 13-4 at 7), as well as the alleged prejudicial effect of the prosecutor's closing argument. It is apparent that these grounds do not relate back because none involves the same operative facts as any of Petitioner's timely claims. The Court need not address these grounds on the merits.
In grounds eight, nine, and thirteen, Petitioner raises claims regarding his alleged actual innocence, including the failure of his motion for new trial. Although these grounds arguably relate back to Petitioner's ground six claim regarding the denial of his motion for new trial, they fail for the same reason that ground six fails—Petitioner has never presented any evidence of his actual innocence. Indeed, the slender reed upon which all these claims rely collapsed completely during Petitioner's state habeas proceedings, when his co-defendant testified that he only confessed and removed the blame from Petitioner because Petitioner had asked him to do so in order for both of them to receive a new trial. (See Doc. 13-4 at 17). These remaining grounds fail for the same reasons that Petitioner's ground six claim fails.
A state prisoner must obtain a certificate of appealability (COA) before appealing the denial of his federal habeas petition. 28 U.S.C. § 2253(c)(1)(A). A COA may issue only when the petitioner makes a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This standard is met when "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted). A petitioner need not "show he will ultimately succeed on appeal" because "[t]he question is the debatability of the underlying constitutional claim, not the resolution of that debate." Lamarca v. Sec'y, Dep't of Corr., 568 F.3d 929, 934 (11th Cir. 2009) (citing Miller-El v. Cockrell, 537 U.S. 322, 337, 342 (2003)). Because there is no reasonable argument to support a finding that Petitioner has presented a timely claim of sufficient merit to warrant federal habeas relief, a certificate of appealability is not warranted in this case.
For the foregoing reasons,
The Clerk is
(Doc. 13-4 at 7).
(Doc. 13-4 at 7).
(Doc. 13-4 at 17).
