G.R. SMITH, Magistrate Judge.
David Sutherland petitions this Court for 28 U.S.C. § 2254 habeas relief.
Indicted in state court for violating O.C.G.A. § 16-12-126 ("Interference With Safety or Traffic Control Device"); O.C.G.A. § 16-8-2 ("Theft by Taking"), and O.C.G.A. § 16-7-20 ("Possession of Tools for the Commission of a Crime"), doc. 23-1
At his guilty-plea hearing, the judge conducted a voluntariness inquiry and Sutherland replied that he understood that he faced a maximum of eleven years in custody. Id. at 77, 80. He "talked to [Fogle] thoroughly about any defenses [he] might have available to [him] and the facts of these cases and what evidence [he] might offer [in defense]. . . ." Id. at 80. He signed a written waiver of his trial and pretrial rights, including the right to subpoena witnesses. Doc. 23-3 at 26. He also affirmed his signature on and acceptance of a written "voluntariness transcript." Id. at 27. He then pled guilty. Doc. 23-1 at 80.
A CSX employee, George Mullis, supplied part of the plea's factual basis. CSX used wire-based communications. When CSX suffered a signal failure, Mullis investigated and found that someone had been cutting and stripping railroad wires for scrap-copper sales to a salvager. Id. at 82-86. That someone was Sutherland: "[W]e actually caught him in the [nearby] woods with the wiring and there was [sic] pliers, ropes, different things used to cut the wires. That's when I found Mr. Sutherland hiding behind a tree." Doc. 23-2 at 1.
Sutherland had been seen at wire-theft locations before, too. Id. In fact, Mullis had previously confronted and warned him about the dangers of cutting railroad wires. Id. at 2-3. Mullis had also gone to a local metal scrap dealer and "was given a receipt with [Sutherland's] picture ID on it and the wire that I had picked up." Id. at 3.
But Sutherland simply would not stop thieving. On May 2, 2007, CSX investigator William Thomas Moore encountered him and another man while they were "pulling wire from signal poles into a wooded area, stripping wire, and they were arrested by [local police]." Id. at 7. At the hearing Moore produced scrap dealer receipts showing that Sutherland had sold scrap copper before that date, to which Fogle objected. Id. at 11-13. The judge reassured her that he would not consider them. Id. at 13. Fogle then pointed out, in mitigation, that Sutherland admitted to his offense and by that point had been sitting in jail for nearly 15 months. Id. at 15.
Stressing the danger to the public (cut signal wires can cause errant trains), and the fact that Sutherland had been previously warned about stealing the railroad's wiring, the judge sentenced him to 12 months on the theft by taking charge, plus five years (to run concurrently) on the "interference" charge, plus a probated five-year sentence on the possession-of-tools charge. Id. at 16-17. "So, it's a ten, do five, sentence." Id. at 17.
Fogle immediately requested "first offender" treatment given Sutherland's lack of a felony record. Id.
THE COURT: Denied.
MS. FOGLE: He'd like to withdraw his plea at this time.
THE DEFENDANT: I'm withdrawing this plea at this time, Your Honor.
THE COURT: Too late.
Id. at 18 (footnote added); see also doc. 23-3 at 19. Fogle moved for reconsideration but Sutherland, after opting to represent himself, withdrew it. Doc. 23-3 at 15. Nor did he appeal. Doc. 23-1 at 18.
But he did seek state habeas relief. There he insisted that he timely withdrew his guilty plea before his sentence was imposed, but the hearing transcript simply failed to reflect that. Doc. 23-1 at 22; doc. 23-3 at 3, 30-31. And, he accused Fogle of providing him with ineffective assistance of counsel (IAC). Doc. 23-3 at 3, 30-31. After sentence was imposed, he had asked her to file a motion to withdraw his plea but she declined because, as she would later explain, it would have been legally frivolous. Id. at 19 ("I do believe the judge had pronounced sentence before he tried to withdraw the plea.").
The state habeas judge accepted the guilty-plea transcript's accuracy and found that Sutherland "did not attempt to orally withdraw his guilty plea until after the sentencing court had pronounced its sentencing and denied [his] request for First Offender status." Doc. 23-2 at 27 (emphasis added). Additionally, he cited Garrett v. State, 284 Ga. 31, 31 (2008), and Strickland v. Washington, 466 U.S. 668 (1984), in applying the burden Sutherland was required to meet: show that Fogle's errors were deficient and the reasonable probability that, but for those errors, he would not have pled guilty but instead would have insisted on going to trial. Doc. 23-2 at 28. Concluding that Sutherland failed to meet that burden, the judge ruled that Fogle's refusal to file what would have been an untimely and frivolous plea-withdrawal motion was reasonable. Id.
Sutherland also faulted Fogle for failing to investigate the arresting detective who "perjured" himself. Doc. 23-3 at 21 (Sutherland's habeas hearing testimony on this point). This would have been a defense Sutherland says he did not pursue, but instead pled guilty, just to get out of jail and thus be able to "investigate" that perjury. Doc. 23-2 at 29.
In denying this petition, the habeas judge noted Sutherland's own admission, during the habeas hearing, that he rolled the dice and was simply unhappy with the result. Petitioner also admitted that he signed and understood a written document waiving his trial and pretrial rights (including the right to subpoena witnesses). Doc. 23-3 at 26. He also affirmed his signature on and acceptance of a written "voluntariness transcript." Id. at 27. Finally, he agreed that he understood his waiver and that his guilty plea was voluntary. Id. at 27-28.
Hence, the court concluded, his plea was voluntary, he waived all of his pre-plea claims, Fogle did not provide IAC, and his claim about the prosecutor's jail-records at best presented "a factual dispute over whether or not [Sutherland] was positively identified at the scene of the crime." Doc. 23-2 at 29. Put another way, that claim was waived by pleading guilty. And to the extent that Sutherland raised a Brady claim, see Brady v. Maryland, 373 U.S. 83 (1963), he presented no evidence that the district attorney withheld any exculpatory evidence.
The state habeas court here issued a written opinion following an evidentiary hearing. Doc. 23-2. Rulings on fully adjudicated issues must "be given the benefit of the doubt," Felkner v. Jackson, ___ U.S. ___, 131 S.Ct. 1305, 1307 (2011) (quotes and cite omitted), which means this Court cannot disturb them unless they
28 U.S.C. § 2254(d) (emphasis and footnote added).
This is a highly deferential, "difficult to meet" standard to overcome. Harrington v. Richter, 562 U.S. ___, 131 S.Ct. 770, 786 (2011); Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 1398 (2011). "[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." Harrington, 131 S. Ct. at 786-87, quoted in Hill v. Humphrey, 662 F.3d 1335, 1345 (11th Cir. 2011) (en banc). This Court also must presume state court factual determinations to be correct; petitioners must rebut that presumption by clear and convincing evidence. 28 U.S.C. § 2254(e).
Sutherland thus must show that the state habeas court unreasonably applied the Strickland-based precedent to his claim. Before the state courts, then, he had to first establish that "counsel's representation fell below an objective standard of reasonableness." Hill v. Lockhart, 474 U.S. 52, 57 (1985) (quoting Strickland, 466 U.S. at 688). To do that he had to overcome the "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689.
If he showed that,
Before this Court he must overcome the second (§ 2254(d)) layer, which materially increases his burden: "[t]he standards created by Strickland and § 2254(d) are both `highly deferential,' [so] when the two apply in tandem, review is `doubly' so." Harrington, 131 S.Ct. at 788 (cites omitted). "When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id.; see also Lamontagne v. Sec'y, Dept. of Corrs., 433 F. App'x 746, 749 (11h Cir. 2011) (applying double deference standard in an IAC guilty plea case). On top of all that, courts accord extraordinary deference to trial counsel in the area of plea bargaining. Premo, 131 S. Ct. at 741 ("strict adherence to the Strickland standard [is] all the more essential when reviewing the choices an attorney made at the plea bargain stage").
Sutherland's petition, doc. 1, which rehashes the above-described state habeas claims and then, by way of a later filing, seeks to add new but procedurally defaulted claims, doc. 7,
Of course, no one even gets out of the starting gate with a lie. His plea, therefore, runs into the following analytical brick wall, which itself is backed by the § 2254(d) deference layer: "A reviewing federal court may set aside a state court guilty plea only for failure to satisfy due process: If a defendant understands the charges against him, understands the consequences of a guilty plea, and voluntarily chooses to plead guilty, without being coerced to do so, the guilty plea . . . will be upheld on federal review." Stano v. Dugger, 921 F.2d 1125, 1141 (11th Cir. 1991) (en banc) (quotes and cite omitted); Trumpler v. Sec'y, Dep't of Corrs., 2012 WL 404776 at * 6 (M.D. Fla. Feb. 8, 2012). As set forth supra, Sutherland does not dispute any part of his plea, except for his "I really didn't mean it" claim and his claim that the transcript does not accurately reflect the timing of his plea withdrawal. As for the transcript claim, he has simply failed to overcome the presumption of factual correctness to the state habeas judge's factual resolution of that issue against him. No other claim surmounts the guilty-plea waiver wall here.
Accordingly, David Sutherland's 28 U.S.C. § 2254 petition must be
Applying the Certificate of Appealability (COA) standards set forth in Brown v. United States, 2009 WL 307872 at * 1-2 (S.D. Ga. Feb. 9, 2009) (unpublished), the Court discerns no COA-worthy issues at this stage of the litigation, so no COA should issue. 28 U.S.C. § 2253(c)(1); see Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (approving sua sponte denial of COA before movant filed a notice of appeal). And, as there are no non-frivolous issues to raise on appeal, an appeal would not be taken in good faith. Thus, in forma pauperis status on appeal should likewise be
Brown v. State, 261 Ga.App. 448, 449 (2003) (footnote omitted; emphasis added); accord Storch v. State, 276 Ga.App. 789, 792 n. 11 (2005).
Id. at 25.
In other words, Sutherland believes that he can swear that yes, he committed the acts supporting the offense, and that yes, he was voluntarily admitting guilt, but then later tell the courts (including this one) that he "didn't really mean it" and thus he lying under oath the entire time. And that, in turn, is "justified" because he was innocent — he just needed to get out of jail to gather up exculpatory evidence. And then, once he would "prove" he was innocent, this would cleanse away his lying sin.
This amazingly self-delusional thread drives his petition. Attempting to bring him back down to earth, the state asked him, toward the end of his habeas evidentiary hearing:
Q. You did know that a guilty plea is the same as a conviction? Did the judge tell you that — as if you had gone to trial and lost?
Id. at 32. Alas, that effort was to no avail. Sutherland's § 2254 petition here travels on the same delusion — that he could "ruse-plead" guilty and point to such deception as "justification" for finding Fogle ineffective and thus obtain § 2254 relief here. Doc. 1 at 5.
