Mize v. Hall

• Decision Date: 02 July 2008
• Docket Number: No. 07-10659.,07-10659.
• Citation: 532 F.3d 1184
• Parties: William Mark MIZE, Petitioner-Appellant, v. Hilton HALL, Warden, Georgia Diagnostic and Classification Prison, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

532 F.3d 1184

William Mark MIZE, Petitioner-Appellant, v. Hilton HALL, Warden, Georgia Diagnostic and Classification Prison, Respondent-Appellee.

No. 07-10659.

United States Court of Appeals, Eleventh Circuit.

July 2, 2008.

Laura D. Hogue and Franklin J. Hogue (Court-Appointed), Hogue & Hogue, Macon, GA, for Mize.

Patricia Beth Attaway Burton, State of GA Law Dept., Atlanta, GA, for Hall.

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

Before TJOFLAT, ANDERSON and MARCUS, Circuit Judges.

ANDERSON, Circuit Judge:

Mark Mize, a death-sentenced prisoner in Georgia, appeals the district court's denial of his federal habeas petition. The district court concluded that Mize's prosecutorial misconduct claim was procedurally defaulted; that the Georgia Supreme Court's resolution of his Brady claim was neither contrary to nor an unreasonable application of Supreme Court precedent; and that Mize has not made out a claim of actual innocence. For the reasons detailed below, we affirm.

I. Facts

On direct appeal, the Georgia Supreme Court summarized the facts of Mize's case as follows:

Viewed in the light most favorable to the verdict, the evidence adduced at trial showed that Mize was the leader of a small group, similar to the Ku Klux Klan, called the National Vastilian Aryan Party (NVAP). Witnesses testified that Mize made all the decisions for the NVAP. Several witnesses also testified that Mize displayed a single-shot 12-gauge shotgun at an NVAP meeting and told the members that the shotgun was the kind of weapon that the group would use because it could not be traced. Several of Mize's friends and co-workers were members of the NVAP, or in the initiation process. Eddie Tucker, the victim, had filled out an application form but was not a full member.

On Saturday, October 15, 1994, several NVAP members and applicants gathered at Mize's home after Mize got off from work. Those present were Mize, Mark Allen, Chris Hattrup, Brian Dove, Samantha Doster (Mize's girlfriend), and Tucker. Mize told Doster that the group was going camping that night and they all got in Mize's car. When they were driving, Mize told the group that there was a crack house in Athens that he wanted "gotten rid of." Mize stated that he wanted Hattrup and Tucker to set the house on fire, and they stopped at a convenience store and bought a can of lighter fluid. Hattrup and Tucker were dropped off near the house but their attempt to set it on fire was unsuccessful. When they rejoined the group, Hattrup told Mize that he needed to talk with him. Hattrup also said, referring to Tucker, that they "didn't need anybody around that couldn't follow orders."

After spending an hour at a bar, Mize drove the group to a wooded area in Oconee County. Dove and Doster were given camping gear to carry and the group set out into the woods. No one had a flashlight even though it was night. Tucker was in the lead, followed by Mize, Allen, Doster, Dove and Hattrup. After they had gone only a short distance, Hattrup passed Dove and Doster and moved up the trail to talk with Allen and Mize. Mize told Allen to stop Dove and Doster from continuing into the woods. At this point, Tucker, Hattrup and Mize were out of sight in the woods ahead of Allen, Dove and Doster. There was a shot, and Tucker exclaimed, "My God, what did you do that for?" There was a second shot. Doster heard Hattrup ask Mize if he had the gun and Mize replied, "No, man. I thought you had it." Hattrup stated, "No. He took it away from me," and Mize said, "If you can't finish it I can." Allen left Dove and Doster and moved up the trail. Dove and Doster heard a discussion among Mize, Allen, and Hattrup about muscle spasms and how Tucker was still moving. There was a third shot.

Dove and Doster ran back to Mize's car. Mize emerged from the woods holding a shotgun and trying to break it down. Once in the car, Mize asked everyone if they knew why it was done. Everyone nodded agreement. Mize told the group that the same thing could happen to them if they ran their mouth. Mize also told the group that, if asked about Tucker, they should say that they had dropped him off at a convenience store. While they were driving, Allen and Hattrup noticed that the barrel of the shotgun had shattered so they stopped at a bridge and threw the gun in a river. Later, Mize confided to Doster that he had finished Tucker off by shooting him in the head.

The police discovered Tucker's body several days later. He had been shot in the back, chest and head with a shotgun. The medical examiner testified that the back and chest wounds were inflicted by a shotgun fired at close range. The victim's head exhibited widely scattered pellet wounds that failed to penetrate the skull; the head wounds were consistent with a close-range shotgun blast that had shattered the barrel. The medical examiner further testified that the shots to the back and chest tore through the victim's right lung, but that none of the wounds were immediately fatal. The victim's death was due to blood loss, and it could have taken him several minutes to die. A fragment of the shotgun barrel was discovered about two feet from the body's location; the gun was not recovered.

After the body was discovered but before anyone was arrested, Chris Hattrup showed his roommate, Paul McDonald, the newspaper article about Tucker's death and told him what had happened. When the crack house failed to burn, Mize asked how Tucker had done and Hattrup responded that Tucker "didn't do what he was supposed to do." Mize then said, "you know what we have to do." Hattrup admitted to McDonald that he shot Tucker in the back and chest, but that Tucker was still alive. He was out of ammunition, though, so he asked Mize for another shotgun shell and Mize gave it to him. Hattrup then shot Tucker in the head. Hattrup also boasted to McDonald that he was now a "hit man for the Klan."

Brian Dove told the police what he had seen and heard that night, and he later testified at Mize's trial. The other four NVAP members involved in Tucker's death were arrested. After spending a year in jail, Doster agreed to testify against the others and her charges were dropped.

Mize v. State, 269 Ga. 646, 501 S.E.2d 219, 223-24 (1998).

At trial, the prosecution relied on the testimony of six principal witnesses in addition to the crime scene investigators. Brian Dove and Samantha Doster gave eyewitness accounts of the events before, on, and after October 15. Paul McDonald, Chris Hattrup's roommate, testified about Hattrup's statements regarding the incident. Ronald Allen, a member of the NVAP who was not present on October 15, testified that Mize displayed a shotgun at a meeting, and that Mize displayed animosity toward Tucker at a meeting less than a month before Tucker was killed. Michael Hollis, a prospective NVAP member, also testified that Mize displayed a shotgun at a meeting. Finally, Jeremy Phillips, a resident of the supposed crack house, testified that he put out a fire on the night of October 15, and that a detective later found a can of lighter fluid on the property. The defense put on only two witnesses. Both testified that they remembered seeing Tucker at a restaurant on October 18, more than two days after he died (according to the crime scene investigators, Dove, Doster, and McDonald).¹

The jury convicted Mize of malice murder. During the sentencing phase, Mize took the stand and, while still asserting his innocence, testified that he wanted no sentence other than death. The jury sentenced him to death on the basis of two aggravating factors: he ordered another to commit the murder, and the murder was outrageously or wantonly vile (because it was accompanied by aggravated battery). The Georgia Supreme Court determined that there was sufficient evidence for the jury to conclude either that Mize fired one of the shots, or that he intentionally aided, abetted, or ordered the murder. Mize, 501 S.E.2d at 224. The Supreme Court denied certiorari on January 11, 1999.

After the Georgia Supreme Court affirmed his conviction and the Supreme Court denied certiorari, Mize began a series of collateral challenges to his conviction in state court. Mize filed two state habeas petitions in March 1999 with the assistance of two different attorneys; each petition was voluntarily dismissed. He filed a third state habeas petition pro se in December 1999, with some assistance from yet another attorney, Thomas Dunn of the Georgia Resource Center (GRC).²

While the third habeas was pending, in June 2000, Doster executed an affidavit recanting her trial testimony. Dunn attempted to amend Mize's pro se petition to add a claim of prosecutorial misconduct based on the Doster affidavit. The claim would have alleged that the prosecution violated due process by suborning perjured testimony from Doster. Mize, however, refused to allow Dunn to represent him or to amend the petition. Mize allowed the Doster affidavit to be entered into evidence, but told the court to rely solely on his pro se pleadings, which did not contain the prosecutorial misconduct claim.

Judge Prior, of the Butts County Superior Court, held an evidentiary hearing on the third habeas petition in February 2001. Mize represented himself. Dunn attended the hearing and again attempted to assert the prosecutorial misconduct claim on behalf of Mize. Mize again expressly refused Dunn's assistance and refused to assert the claim at the hearing. At the close of that hearing, the habeas court closed the evidence, but reserved judgment pending the disposition of an extraordinary motion for new trial that Mize had recently filed in the trial court, i.e., in the Oconee County Superior Court before Judge Stephens.

Mize had filed the extraordinary motion for new trial in July 2000, and had asserted the prosecutorial misconduct claim. Judge Stephens granted a hearing on that claim, and denied relief with respect to all the...