ALAN J. BAVERMAN, Magistrate Judge.
Petitioner, George Shipman, III, challenges via 28 U.S.C. § 2254 his 2013 Cobb County convictions. The matter is before the Court on the petition, [Doc. 1], and Respondent's answer-response, [Doc. 6]. For the reasons stated below, the undersigned recommends that the petition be denied and this action dismissed.
On September 7, 2012, Petitioner, Larry Stallworth, and Tedrick Stallworth gained entry to the dwelling house of Stephanie Gladden and, among other crimes, robbed her. (See Pet'r Ex. B at 235-39 [Doc. 1-2 at 240-44].)
The Cobb County grand jury indicted Petitioner and his co-defendants Larry and Tedrick for (count one) burglary, (count two) armed robbery, (count three) false imprisonment, (count four) kidnaping, and charged Petitioner with (count six) possession of a firearm during the commission of a crime and (count eight) possession of a firearm by a convicted felon, criminal action number 13-9-2271-33. (Pet'r Ex. B at 226, 235-39 [Doc. 1-2 at 231, 240-44].) On November 11, 2013, represented by Scott Semrau, Petitioner pleaded guilty to all counts and received a total forty-year term, with twenty years to be served in confinement. (Id. at 226, 229-34 [Doc. 1-2 at 231, 234-39].)
The record does not show that Petitioner appealed. On November 3, 2014, Petitioner filed in the Coffee County Superior Court a state habeas corpus petition, civil action number 2014S11-727. (Pet'r Ex. A.) By order filed on August 22, 2016, the state habeas court denied relief. (Pet'r Ex. C.) On January 16, 2018, the Georgia Supreme Court denied further review and on February 5, 2018, denied reconsideration. (Pet'r Exs. F, H.)
Petitioner now seeks federal habeas corpus relief on two grounds: (1) a violation of due process and the right to effective assistance of counsel based on counsel stating that Petitioner was pleading guilty under a party to the crime theory, in contradiction of Petitioner's testimony, and (2) a violation of due process based on prosecutorial misconduct in knowingly relying on false evidence in criminal proceedings. (Pet'r Mem. at 12, 18-19, ECF No. 1.)
A federal court may issue a writ of habeas corpus on behalf of a person held in custody pursuant to a judgment of a state court if that person is held in violation of his rights under federal law. 28 U.S.C. § 2254(a). The availability of collateral relief, however, is limited. A habeas petitioner is presumed guilty, not innocent, Herrera v. Collins, 506 U.S. 390, 399-400 (1993), and the petitioner bears the burden of demonstrating his right to collateral relief, Blankenship v. Hall, 542 F.3d 1253, 1274 (11
Exhaustion requires a petitioner to "fairly present[] every issue raised in his federal petition to the state's highest court, either on direct appeal or on collateral review." Pope v. Sec'y for Dep't of Corr., 680 F.3d 1271, 1284 (11
For claims that have been exhausted, federal relief under the AEDPA is limited to petitioners who demonstrate that the state court adjudication resulted in a decision that "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States[,]" 28 U.S.C. § 2254(d)(1), or "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)(2).
"A state court's adjudication is contrary to federal law if it `arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.'" Wellons v. Warden, 695 F.3d 1202, 1206 (11
This Court has reviewed the pleadings and exhibits and finds that the record contains sufficient facts upon which the issues may be resolved. As Petitioner has made no showing as required by 28 U.S.C. § 2254(e)(2), no federal evidentiary hearing is permitted, and the case is now ready for disposition.
In the plea agreement on which Petitioner was before the court, the state had agreed to recommend a forty-year sentence, with twenty years to be served. (See Pet'r Ex. B at 247-48, 257 [Doc. 1-2 at 252-53, 262].) At the plea hearing, the court explained Petitioner's trial rights and the possible punishments, and Petitioner stated that he understood that he was giving up his trial rights, that upon pleading guilty he would be subject to life plus sixty years, and that if he was convicted at trial the court would be bound to sentence him to life for armed robbery, with no possibility of parole until he had served thirty years, and to the maximum terms on his remaining counts. (Id. at 242-47 [Doc. 1-2 at 247-52].) The court asked Petitioner how he pled, and Petitioner stated, "guilty." The court asked Petitioner if he was in fact guilty, and Petitioner stated, "yes, sir." (Id. at 247 [Doc. 1-2 at 252].) The court asked Petitioner why he was pleading guilty, and Petitioner responded,
(Id.) The state then presented the factual basis for the plea as follows —
(Id. at 252-55 [Doc. 1-2 at 257-60].)
In light of Petitioner's response to the court's question on why he was pleading guilty, i.e., his response that he was pleading guilty in order to avoid a longer sentence and his statement "Not saying I did it — did any of these," the Court questioned counsel on Petitioner's testimony that he was in fact guilty. (Id. at 247, 255 [Doc. 1-2 at 252, 260].) Counsel responded as follows —
(Id. at 255-56 [Doc. 1-2 at 260-61].) The court stated that it was satisfied and found that there was a factual basis for the plea. (Id. at 256 [Doc. 1-2 at 261].)
After reviewing the recommended sentence, the court told Petitioner that it was planning on accepting the plea and asked whether "[f]or any reason, good or bad, do you wish to change your mind?" Petitioner stated, "No." (Id. at 260 [Doc. 1-2 at 265].) After additional discussion on the sentence and other matters, the court again asked Petitioner if for any reason he wished to change his mind. Petitioner asked to talk with counsel, which the court allowed, and subsequently affirmed that he did not wish to withdraw his plea of guilty. (Id. at 264 [Doc. 1-2 at 269].)
Represented by new counsel, Elizabeth Brandenburg, Petitioner filed his state habeas petition in which he raised the following ground for relief: counsel was ineffective for allowing Petitioner to plead guilty under a party to the crime theory, which contradicted Petitioner's testimony at the plea hearing, and the court erred in accepting his guilty plea. (Pet'r Ex. A, Statement of Claims.)
At the state habeas hearing, Petitioner testified (1) that he pleaded guilty to avoid the recidivist punishment that he would face if convicted at trial and because he thought that the victim would be allowed to lie on the stand and (2) that he would have gone to trial if he had confidence that the victim would not have been allowed to lie. (Pet'r Ex. B at 56 [Doc. 1-2 at 56].)
The state habeas court found that Petitioner's attempt — to show that plea counsel was unreasonable for allowing him to plead guilty as a party to a crime — failed for the following reasons: (1) any conflict between Petitioner's affirmation of guilt and his comment on why he was pleading guilty had been sufficiently resolved;
In this Court, Petitioner argues that his due process rights and right to effective assistance of counsel were violated when plea counsel stated that he was pleading guilty based on party to a crime theory, in contradiction of Petitioner's plea testimony. (Pet'r Mem. at 12.) Petitioner asserts that he did not know that party to a crime meant more than mere presence and that, had he known it meant more than mere presence and that he was admitting guilt, he would not have pleaded guilty. (Id. at 13-14.) Petitioner states that he was "willing to enter a plea in order to avoid a 30 year to life sentence, but he was not willing to admit that he had committed a crime"; that he "would have entered a plea for a lesser sentence, but only if it did not involve falsely admitting guilt"; and that he "was only knowingly and voluntarily agreeing to enter a plea where he could maintain his innocence." (Id. at 12, 16.) Petitioner asserts that counsel's unauthorized admission of guilt, when he had wished to maintain his innocence, was ineffective and rendered his guilty plea invalid. (Id. at 17-18.)
Respondent argues that this Court should defer to the state habeas court's decision. (Resp't Br. at 3, 8-13, ECF No. 6-1.)
Under the Due Process Clause of the Fourteenth Amendment, a state criminal defendant possesses a Sixth Amendment right to "reasonably effective" legal assistance. Strickland v. Washington, 466 U.S. 668, 687 (1984); Faretta v. California, 422 U.S. 806, 818 (1975). To show constitutionally ineffective assistance of counsel, a petitioner must establish that (1) counsel's representation was deficient and (2) counsel's deficient representation prejudiced him. Strickland, 466 U.S. at 690-92.
To succeed on a claim that a guilty plea was obtained in violation of the Sixth Amendment right to counsel, a movant must show that "(1) counsel's advice was deficient; and (2) `but for counsel's errors, [there is a reasonable probability that] he would not have pleaded guilty and would have insisted on going to trial.'" Lynch v. Sec'y, Fla. Dep't of Corr., 776 F.3d 1209, 1218 (11
The Court cannot find that the state habeas court was unreasonable in finding that Petitioner failed to meet his burden of demonstrating that plea counsel was ineffective. Even if this Court disagreed with the state habeas court's conclusion that Petitioner did not make a protestation of innocence, under AEDPA's deferential standard it would nonetheless be reasonable for a court to conclude, as the state habeas court did, (1) that any conflict between Petitioner's affirmation of guilt and his comment on why he was pleading guilty had been sufficiently resolved and (2) that Petitioner was pleading guilty as a party to a crime, as stated by counsel. This is so, particularly based on Petitioner's two affirmations to the court, after the party-to-a-crime discussion, that he did not wish to change his mind on pleading guilty. The factual proffer showed that Tedrick recruited Petitioner to participate in the robbery and that Petitioner drove the vehicle used in the crimes, parked the car down the street from the victim's home in an attempt to make it appear that they were having car trouble, went to the victim's door to gain entry under false pretenses, entered the victim's home when let in by the gunman who gained entry through a window, participated in loading the victim's belongings into their vehicle, and walked the victim out of the house (while a co-defendant held a gun on her) so that the victim could tell the police (as instructed by defendants) that the men were simply helping her move. The factual proffer shows that Petitioner assisted or helped his co-defendants and that he was not merely present at the scene.
Further, Petitioner does not show prejudice based on counsel's handling of the court's question on his admission of guilt. At his habeas hearing, Petitioner did not testify that, if he had understood that pleading guilty as party to a crime was an admission guilt, he would have rejected the state's offer (with a recommendation that he serve only twenty years) and insisted on going to trial and risk exposure to a mandatory life term of imprisonment, with no possibility of parole until he had served thirty years. Although Petitioner testified at the habeas hearing that he would have gone to trial if he had been assured that the victim would not lie, he nowhere testified that his understanding of his guilt based on party to a crime influenced his decision to plead guilty.
As part of ground one of his federal petition, Petitioner also asserts that counsel deprived him of his fundamental right to admit or not admit guilt, which he claims is a structural error. (Pet'r Mem. at 16-18.) Petitioner argues that "it is `[t]he defendant, and not his lawyer or the State, who will bear the personal consequences of a conviction,' Faretta, 422 U.S. at 834, and it is therefore the accused who must have the ultimate authority to decide whether to admit guilt." (Id. at 18.) In support, Petitioner also cites to a legal discussion on the oral argument in a case involving counsel's concession of his client's guilt which, at the time, was pending in the United States Supreme Court. (Id. at 17); see McCoy v. Louisiana, ___ U.S. ___, ___, 138 S.Ct. 1500 (2018). Petitioner suggests that the Justices' might ultimately decide the issue in a manner that would favorably impact Petitioner's case. (Id. at 17.)
The United States Supreme Court decided McCoy on May 14, 2018 and held that it is unconstitutional and a structural error, requiring no showing of prejudice, for defense counsel to concede guilt over a defendant's "intransigent and unambiguous objection" to doing so. McCoy, ___ U.S. at ___, 138 S. Ct. at 1507, 1511.
To the extent that Petitioner intended to raise a claim based on a fundamental right and structural error that is distinct from his ineffective assistance of counsel claim in ground one, he did not raise such claim in the state habeas court although Faretta and the pending application for certiorari in McCoy were available at the time.
In his state petition, Petitioner asserted prosecutorial misconduct for knowingly relying on perjured testimony by the victim, based on which his guilty plea was invalid, and ineffective assistance of counsel for failing to bring the perjury to the court's attention and allowing Petitioner to plead guilty knowing that the testimony would be presented at trial. (Pet'r Ex. A, Mem. at 12-15.)
At the state habeas hearing, Petitioner's plea counsel testified that Ms. Gladden's husband was a known drug dealer, that he had investigated Ms. Gladden, that his investigation showed that Ms. Gladden was suspected in a drug scheme in which Tedrick also was involved, that he shared the information with the state prosecutor, and that he learned after the guilty plea that there also was a DEA investigation that involved Ms. Gladden. (Pet'r Ex. B at 10-14 [Doc. 1-2 at 10-14].) Plea counsel testified that in his opinion the prosecution should have done more with the information that he had provided on Ms. Gladden and should have discovered the DEA investigation, which would have provided more information on which Petitioner could have based his plea decision. (Id. at 33-34 [Doc. 1-2 at 33-34].)
Jon David Haskin, counsel for Tedrick, testified that Petitioner's counsel had taken the lead on motions, which had included extensive argument on Ms. Gladden's connection to a drug scheme, and that the court was aware of the issue.
Before the close of the hearing, counsel for the prosecution stated that she understood that Petitioner was not asserting prosecutorial misconduct as a claim that the prosecution had actually withheld evidence but as a claim that the prosecution "should have investigated this claim against the [victim] further." (Id. at 59 [Doc. 1-2 at 59].) Petitioner's counsel clarified, "I don't have any information that the District Attorney . . . was withholding evidence. We did not raise a Brady[
The prosecutor testified by deposition that it is not the practice of her office to investigate victims; that Petitioner's counsel was actively involved in investigating the victim in regard to her involvement in a drug scheme and in bringing it to the prosecution's attention; that after being made aware of the issue, she questioned the victim before the motions date (before Petitioner pleaded guilty) and that the victim denied any involvement in a drug scheme; and that it was not until after the hung jury in Tedrick's case that the victim admitted being involved in a drug scheme. (Id. at 283-85, 289-91, 297, 299-300, 307-09, 311-12 [Doc. 1-2 at 288-90, 294-96, 302, 304-05, 312-14, 316-17].)
The state habeas court, relying on Tollett v. Henderson, 411 U.S. 258 (1973), among other cases, found that Petitioner's prosecutorial misconduct claim was waived by entry of the guilty plea, which could only be attacked based on ineffective assistance of counsel, and that Petitioner had shown no viable prosecutorial misconduct claim on which plea counsel was ineffective. (Pet'r Ex. C at 12-15, 19-20.)
In his federal petition, Petitioner again asserts that his due process rights were violated by prosecutorial misconduct in knowingly relying on false evidence in criminal proceedings. (Pet'r Mem. at 18-19.)
Respondent argues that the court should (1) find that Petitioner's claim of prosecutorial misconduct fails because it was waived by his guilty plea and (2) reject as procedurally defaulted, or defer to the state habeas court's implicit denial of, any claim that prosecutorial misconduct rendered his guilty plea invalid. (Resp't Br. at 13-20.)
A valid guilty plea "forecloses independent inquiry" into a constitutional claim based on pre-plea prosecutorial conduct related to the petitioner's case. Tollett, 411 U.S. at 266; see also Class v. United States, ___ U.S. ___, ___, 138 S.Ct. 798, 805 (2018) ("A valid guilty plea . . . renders irrelevant . . . the constitutionality of case-related government conduct that takes place before the plea is entered."); Wilson v. United States, 962 F.2d 996, 997 (11th Cir. 1992) ("A defendant who enters a plea of guilty waives all nonjurisdictional challenges to the constitutionality of the conviction, and only an attack on the voluntary and knowing nature of the plea can be sustained.").
Tollett, 411 U.S. at 266-67.
"A defendant is not entitled to withdraw his plea merely because he discovers long after the plea has been accepted that his calculus misapprehended the quality of the State's case. . . ." Brady v. United States, 397 U.S. 742, 757 (1970). In the absence of misrepresentation or other impermissible conduct by a state agent, a guilty plea does not become vulnerable based on a defendant's misapprehension of the State's case. Id. at 755, 757 ("(A) plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor's business (e.g. bribes)." (citation and internal quotation marks omitted)). Although prosecutorial misconduct might, in certain circumstances, affect the validity of a guilty plea, the prosecution's failure to disclose material impeachment evidence prior to entry of a plea does not qualify as prosecutorial misconduct. See United States v. Ruiz, 536 U.S. 622, 633 (2002) ("[T]he Constitution does not require the Government to disclose material impeachment evidence prior to entering a plea agreement with a criminal defendant.").
Id. at 629; see United States v. Johnson, 603 Fed. Appx. 867, 872 (11
Here, Petitioner does not address the state habeas court's decision that his guilty plea waived his prosecutorial misconduct claim, much less show that the state habeas court unreasonably applied federal law, as it is his burden to do. The undersigned finds nothing unreasonable in a determination that Petitioner's guilty plea forecloses review of his prosecutorial misconduct claim. Further, there is simply no viable claim of prosecutorial misconduct based on the prosecutor's hesitance in believing the impeachment evidence discovered by defense counsel and her failure to investigate and discover additional victim impeachment evidence, thus pressuring Petitioner to make a plea decision without the additional impeachment evidence based on the DEA investigation. See Ruiz, 536 U.S. at 629. Ground Two fails.
Under Rule 11 of the Rules Governing § 2254 Cases, "[t]he district court must issue or deny a certificate of appealability When it enters a final order adverse to the applicant. . . . If the court issues a certificate, the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2)." The Court will issue a certificate of appealability "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The applicant "must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Melton v. Sec'y, Fla. Dep't of Corr., 778 F.3d 1234, 1236 (11
Lambrix v. Sec'y, DOC, 872 F.3d 1170, 1179 (11
The undersigned recommends that a COA be denied because it is not reasonably debatable that Petitioner fails to show that he is entitled to federal relief on either of his federal grounds. If the Court adopts this recommendation and denies a COA, Petitioner is advised that he "may not appeal the denial but may seek a certificate from the court of appeals under Federal Rule of Appellate Procedure 22." Rule 11(a), Rules Governing § 2254 Cases in the United States District Courts.
For the reasons stated above,
It is
The Clerk is
