592 F.3d 1144 (11th Cir. 2010), 07-11360, Ward v. Hall

Docket Nº:07-11360.
Citation:592 F.3d 1144
Opinion Judge:BIRCH, Circuit Judge:
Party Name:James Ray WARD, Petitioner-Appellant, v. Warden Hilton HALL, Georgia Diagnostic Prison, Respondent-Appellee.
Attorney:Wendy C. Peoples (Court-Appointed), Law Offices of Mark Olive, Tallahassee, FL, Jeffrey Lyn Ertel, (Court-Appointed), Fed. Def. Program, Inc., Atlanta, GA, for Ward. Patricia Beth Attaway Burton, State of GA. Law Dept., Atlanta, GA, for Hall.
Judge Panel:Before EDMONDSON, BIRCH and BARKETT, Circuit Judges. EDMONDSON, Circuit Judge, concurs in the result.
Case Date:January 04, 2010
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
FREE EXCERPT

Page 1144

592 F.3d 1144 (11th Cir. 2010)

James Ray WARD, Petitioner-Appellant,

v.

Warden Hilton HALL, Georgia Diagnostic Prison, Respondent-Appellee.

No. 07-11360.

United States Court of Appeals, Eleventh Circuit.

January 4, 2010

Page 1145

[Copyrighted Material Omitted]

Page 1146

[Copyrighted Material Omitted]

Page 1147

[Copyrighted Material Omitted]

Page 1148

[Copyrighted Material Omitted]

Page 1149

[Copyrighted Material Omitted]

Page 1150

[Copyrighted Material Omitted]

Page 1151

[Copyrighted Material Omitted]

Page 1152

Wendy C. Peoples (Court-Appointed), Law Offices of Mark Olive, Tallahassee, FL, Jeffrey Lyn Ertel, (Court-Appointed), Fed. Def. Program, Inc., Atlanta, GA, for Ward.

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

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

Before EDMONDSON, BIRCH and BARKETT, Circuit Judges.

BIRCH, Circuit Judge:

Petitioner James Ray Ward, a Georgia death-row inmate, appeals the judgment of the United States District Court for the Northern District of Georgia denying his petition for the writ of habeas corpus, brought pursuant to 28 U.S.C. § 2254. He raises issues challenging the validity of his convictions as well as his death sentence.1 After careful consideration of the entire record, including oral argument, we AFFIRM Ward's convictions for murder, kidnaping with bodily injury, and feticide. As explained in Section IIE, however, we conclude that an improper bailiff-jury communication during the penalty phase violated Ward's constitutional right to a fair trial and a reliable sentence. We therefore REVERSE his death sentence and REMAND for a new sentencing phase hearing.

I. BACKGROUND

In its order denying Ward's petition for a writ of habeas corpus, the district court reiterated the following findings of fact made by the Georgia Supreme Court in connection with Ward's direct appeal:

The victim's husband left for work at 6:00 a.m. on August 17, 1989. When he

Page 1153

returned from work that evening, the 23-year-old victim, who was five months pregnant, was missing, along with her car. Their 22-month-old daughter was at home by herself.

When the police arrived later that evening, many friends and relatives were present. At first, nothing appeared to be missing except for the victim and her car, but eventually it was learned that a telephone cord had been forcibly removed from the wall jack (leaving the plug), that most of the victim's underwear had been removed from her dresser drawer, and that a quilt and a baby blanket had been taken.

The victim's car was discovered the next day on an unpaved logging road. Her body was discovered the day after that in a trash dump several miles away. Ligature marks around her wrists and ankles indicated she had been bound. Three of her ribs were broken and there were various bruises about her body. Her fetus was in a partially delivered condition. The mother died of asphyxiation resulting from her pharynx being stuffed with wadded-up paper towels. The death of the mother resulted in the destruction of the fetus.

No clear suspects were developed for several months. Then, early in the morning of December 18, 1989, the defendant, wearing gloves and a stocking mask, broke into a Gordon County home and kidnapped a woman [Donna Rich] from her bed as she lay sleeping with her nine-year-old daughter. He drove the woman to an abandoned farmhouse, forced her to model negligees he had brought with him, and raped her. Then he took her to another abandoned house and raped her again. He told her that he had killed two people and pointed out a " good place" to " dump bodies" if she ever wanted to. He also told her he had been watching her and told her some things about her personal situation that a stranger should not have known. He returned her to her home. Later, she discovered that some of her underwear was missing.

The Gordon County police arrested the defendant at his residence. The defendant's home was unfinished inside. Most of the walls were not sheetrocked and there was no running water and, except for the bedroom, no electricity. The unfinished rooms were full of boxes containing several thousands of dollars worth of lingerie and adult magazines. The defendant maintained notebooks carefully labelling (sic) and indexing magazines and lingerie catalogs (including descriptions and numerical ratings of women in the magazines). The officers found scraps of paper with physical descriptions of and tag numbers for women; dates, times and locations of observations; directions to their homes; newspaper clippings about rapes, murders and missing women; newspaper photographs of women; and driver's licenses and insurance cards belonging to various women.

In addition, officers found handwritten directions to the home of the victim in this case, her swimming suit bottom, her quilt and baby blanket, and-hidden under a pile of wood-six newspaper articles about her disappearance.

On January 18, 1990, the defendant admitted to police that he had visited the victim's home to check on a well he had helped drill earlier and had spoken to her. He said:

I don't know if I done anything to the girl or not. I could have done it ....

I been a liar all my life. I need some help. If I done it, I didn't mean for it to happen and I am sorry.

R4-77 at 48-52.

Ward was convicted by a jury in Walker County, Georgia, of feticide and the kidnaping

Page 1154

and murder of Nikia Gilbreath and sentenced to death. Ward appealed his convictions and sentence to the Georgia Supreme Court. The Georgia Supreme Court affirmed Ward's convictions and sentence on 11 June 1992 and denied his motion for reconsideration on 2 July 1992. See Ward v. State, 262 Ga. 293, 417 S.E.2d 130 (1992).

Ward then filed a petition for a writ of certiorari with the United States Supreme Court which was denied on 19 January 1993. See Ward v. Georgia, 506 U.S. 1085, 113 S.Ct. 1061, 122 L.Ed.2d 366 (1993). Ward's petition for a re-hearing was likewise denied by the Supreme Court on 8 March 1993. See Ward v. Georgia, 507 U.S. 980, 113 S.Ct. 1438, 122 L.Ed.2d 803 (1993).

On 19 April 1993, Ward filed a petition for a writ of habeas corpus (" state habeas petition" ) in the Superior Court of Butts County, Georgia.2 The state habeas court conducted evidentiary hearings with respect to Ward's state habeas petition on 31 July 1997, 21 October 1997, 22 October 1997, and 22 December 1997. The court found that four of Ward's claims were procedurally defaulted because Ward failed to raise those claims on direct appeal and ultimately denied Ward's state habeas petition on 27 August 1998.

In response to Ward's application for a certificate of probable cause to appeal, the Georgia Supreme Court remanded Ward's state habeas petition to the Butts County Superior Court.3 After complying with the instructions of the Georgia Supreme Court, the state habeas court issued a second order making additional findings but again denying Ward's state habeas petition.

Ward filed a second application for a certificate of probable cause to appeal with the Georgia Supreme Court which was denied on 30 April 2003. Ward then filed another petition for a writ of certiorari with the United States Supreme Court, which was again denied, as was his petition for re-hearing.

On 29 April 2004, Ward filed his 28 U.S.C. § 2254 petition (" federal habeas petition" ) in the district court. He advanced thirty-six claims (as numbered in district court's order, see R4-77 at 23-39). The district court then directed both Ward and the state to file briefs addressing procedurally defaulted claims and unexhausted claims. After considering the briefs, the district court concluded that twenty-seven of Ward's claims were procedurally barred-four claims were procedurally defaulted because Ward failed to raise them on direct appeal and twenty-three were determined to be unexhausted and so procedurally barred. Ward filed a motion for reconsideration, which was denied on 6 October 2005.

On 14 October 2005, Ward filed a motion for leave to conduct discovery. The district court denied the motion on 19 December 2005. On 3 May 2006, Ward filed a motion for an evidentiary hearing. The district court denied that motion on 2 June 2006.

After considering Ward's memorandum in support of his petition for a writ of habeas corpus, the state's brief in opposition, and Ward's reply brief, the district

Page 1155

court denied Ward's petition on 6 February 2007. Ward filed a motion to alter or amend, which the district court also denied. The district court then granted Ward's motion for a certificate of appealability on eleven claims, eight of which are before us in this case.4

II. DISCUSSION

" We review de novo a district court's grant or denial of a habeas corpus petition. The district court's factual findings are reviewed for clear error, while mixed questions of law and fact are reviewed de novo. An ineffective assistance of counsel claim is a mixed question of law and fact subject to de novo review." McNair v. Campbell, 416 F.3d 1291, 1297 (11th Cir.2005) (citations omitted).

Because Ward filed his federal habeas petition after 24 April 1996, this case is governed by the Anti-terrorism and Effective Death Penalty Act of 1996 (" AEDPA" ). AEDPA precludes federal courts from granting habeas relief on claims that were previously adjudicated in state court unless the adjudication

(1) 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; or

(2) resulted in a decision that was based on an unreasonable determination of the...

To continue reading

FREE SIGN UP