Osborne v. Terry

Decision Date16 October 2006
Docket NumberNo. 04-16751.,04-16751.
Citation466 F.3d 1298
PartiesCurtis OSBORNE, Petitioner-Appellant, v. William TERRY, Respondent-Appellee.
CourtU.S. Court of Appeals — Eleventh Circuit

Sheri Lynn Johnson, Cornell Law School, Ithaca, NY, Jeffrey Lyn Ertel (Court-Appointed), Fed. Def. Program, Inc., William A. Morrison (Court-Appointed), Jones, Morrisom & Womack, P.C., Atlanta, GA, for Osborne.

Susan V. Boleyn, State Law Dept., Atlanta, GA, for Terry.

Appeal from the United States District Court for the Northern District of Georgia.

Before BIRCH, DUBINA and PRYOR, Circuit Judges.

DUBINA, Circuit Judge:

Petitioner, Curtis Osborne ("Osborne"), a death row inmate, appeals the district court's order denying him federal habeas relief pursuant to 28 U.S.C. § 2254. After a thorough review of the record, and having the benefit of the parties' briefs and oral argument, we affirm the district court's judgment.

I. BACKGROUND
A. Facts

Special Agent David Mitchell ("Agent Mitchell") of the Georgia Bureau of Investigation ("GBI") testified at Osborne's trial that at approximately 1:45 p.m. on August 7, 1990, he received a call to investigate a murder on Pine View Road in Spalding County, Georgia. When he arrived at the scene, Agent Mitchell noticed glass fragments lying in the dirt roadbed and saw a 1978 Pontiac Grand Prix about 40 yards from the glass. The car was in gear and still running. Agent Mitchell observed that the driver's side window was shattered and part of the glass was inside the car on the front seat, floorboards, and armrests. The windshield was cracked, and the passenger window was rolled down. Agent Mitchell saw two individuals, a woman, later identified as Linda Lisa Seaborne ("Seaborne"), and a man, later identified as Arthur Jones ("Jones"), in the front seat of the car. Seaborne, who was in the driver's seat, was slumped over Jones. Both victims had been shot. Agent Mitchell also noticed a black stick, similar to a policeman's nightstick, lying on the floorboard to the rear of the driver's seat.

Agent Mitchell testified that he inspected the car and noticed that a bullet had struck the windshield and passed underneath it through the padded dash. The bullet was lying on the vent. There was also a bullet resting on the driver's door where the glass was shattered. Jones had sustained a gunshot wound below his left eye, and Seaborne had been shot in the neck. Agent Mitchell stated that there was blood all over the interior of the vehicle.

Special Agent Chris Tolbert ("Agent Tolbert") of the GBI testified that early on the day following the crime, he interviewed Jones's sister, Melinda Jones ("Melinda"), and Jones's mother. Melinda's boyfriend, Osborne, was at her house when Agent Tolbert arrived. Osborne told Agent Tolbert that three weeks earlier, Jones had asked Osborne to help him (Jones) sell his (Jones) motorcycle. Osborne stated that he did not sell the motorcycle and had not spoken to Jones since that time. Osborne also told Agent Tolbert that the only contact he had with Seaborne was several days earlier when he was trying to change the title on Jones's motorcycle.

Agent Tolbert interviewed Marcus Matthews ("Matthews"), who told Agent Tolbert that a week before the murders, Osborne sold him Jones's motorcycle for $400. After obtaining this information, Agent Tolbert considered Osborne a suspect and gave Osborne his Miranda rights before interviewing him a second time. Osborne repeated the same story that he had told Agent Tolbert earlier. Osborne elaborated a bit, though, and told Agent Tolbert that Jones had approached him about selling the motorcycle because he needed the money. Osborne had offered Jones an opportunity to sell cocaine for money, but Jones declined.

The next day, police arrested Osborne and interviewed him again. During this interview, Osborne admitted that he had sold Jones's motorcycle to Matthews, and he had kept the money. Osborne denied any involvement in the shootings and consented to a gun residue test. He informed the police that the test would be positive for gun residue because he fed his dog gunpowder on a daily basis. Osborne explained that the blood under his cuticles was the result of a hangnail. He also told police that his fingerprints could be on the car in which the victims were found because he had ridden in the car a week earlier when he went to WalMart, where Seaborne worked, to get a title for the motorcycle, and Seaborne asked him to move her car from one parking spot to another. Osborne provided police with the clothes he was wearing on the day of the murders, but he told the police that his mother previously had washed the clothes in bleach.

Spalding County Sheriff Richard Cantrell ("Sheriff Cantrell") testified at trial that he interviewed Osborne on August 10, 1990. Sheriff Cantrell taped the interview. During the interview, Osborne told Sheriff Cantrell that on the day of the crime, he left a message for Jones to come to Griffin, Georgia, to pick up the money from the sale of Jones's motorcycle. Osborne stated that he spent the rest of the day on the street selling cocaine. Osborne further stated that later in the day, Jones and Seaborne approached him and told him to get in the car. Jones then hit Osborne with a nightstick. Jones asked Osborne for the money from the sale of the motorcycle, and Osborne told him that the money was in a hotel room with two Cuban drug dealers from Florida named Jeff and Scott. Osborne stated that they stopped at a motel, and one of the Cuban drug dealers gave Osborne a .38 caliber gun that he put in his pants. Osborne further stated that he shot Jones in the back of the head because Jones had threatened to beat him and was reaching for a weapon on the floorboard of the car. Osborne stated that he climbed out of the driver's side window and ran. At no time did Osborne state where he left his gun and pager.

Ron Buchanan ("Buchanan"), an investigator with the Sheriff's Department testified that he searched for a weapon and pager, but could not find either. Buchanan also testified that he went by the hotel where Osborne claimed the Cuban drug dealers were staying, and Osborne pointed out Room 213 as the room they occupied. However, the manager of the hotel, Ramesh Parekh, testified that the hotel records showed that Room 213 was not occupied on the day in question.

Dr. Randy Hanzlick ("Dr. Hanzlick"), the Fulton County medical examiner, testified that he performed the autopsies on the victims. The autopsy of Jones revealed that he died as a result of a gunshot wound to the back of the head which exited to the left of his eye. The blood pattern showed that Jones's body was in an upright position when he was shot and that the gun was only an inch away from his head when the perpetrator fired. The bullet fractured Jones's skull, causing hemorrhage and destruction of brain tissue. Dr. Hanzlick stated that the wound would indicate that the perpetrator used a .38 caliber, 9 millimeter, or a .357 magnum weapon; more likely, it was a 9 millimeter or a .357 magnum.

Dr. Hanzlick testified that Seaborne died as a result of a gunshot wound to the back of the neck. The bullet entered the right side of her neck, grazed the shoulder up through the spinal cord, went through the bottom of her skull and exited through her left cheek. He stated that the gunshot wound was inflicted from one to two feet away from Seaborne. Dr. Hanzlick testified, however, that the wound was not typical of an "execution" style wound. (State Record Exh. 6, pp. 1268-69.)

Additionally, Osborne's mother testified that her husband's .357 Ruger was missing. Kelly Fite, the state crime lab firearms examiner testified that she received a .357 magnum lead bullet that Agent Tolbert had found at Osborne's home pursuant to a search warrant. Larry Hankerson, the latent fingerprint examiner, testified that Osborne's fingerprints were found on the door of the driver's side of the vehicle in which the victims' bodies were found.

B. Procedural History

A Spalding County jury convicted Osborne on two counts of malice murder and two counts of felony murder, with the underlying felonies consisting of aggravated assault. The jury found that Seaborne's murder was committed in the course of Jones's murder, itself a capital felony. The jury based their death recommendation on this aggravating circumstance.

Following the trial court's denial of his motion for new trial, Osborne filed his direct appeal in the Georgia Supreme Court, which affirmed Osborne's convictions and sentences. See Osborne v. State, 263 Ga. 214, 430 S.E.2d 576 (1993). Osborne filed a petition for writ of certiorari, which the United States Supreme Court denied. See Osborne v. Georgia, 510 U.S. 1170, 114 S.Ct. 1205, 127 L.Ed.2d 552 (1994). Osborne then filed a state habeas corpus petition on June 28, 1994, and filed an amended petition on May 31, 1996. The trial court conducted an evidentiary hearing in September 1996 and thereafter denied Osborne habeas relief. Osborne filed an appeal from the trial court's denial of state habeas relief and an application for certificate of probable cause ("CPC") to appeal. The Georgia Supreme Court denied Osborne's application for a CPC on April 28, 2000, and the United States Supreme Court subsequently denied Osborne's petition for certiorari review.

On April 24, 2001, Osborne filed his federal habeas petition, including for the first time a claim that his trial counsel's performance was deficient because trial counsel exhibited racial animosity toward Osborne. Osborne subsequently filed an amended petition. After the State responded, the district court denied Osborne relief on certain claims raised in his amended petition. The district court initially dismissed Osborne's claim of racial animosity, then upon motion to reconsider, asked the parties to be prepared to argue at the habeas hearing whether the claim should be reinstated. In the interim, Osborne filed a...

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