Gary v. Warden, Ga. Diagnostic Prison

Citation23 Fla. L. Weekly Fed. C 1303,686 F.3d 1261
Decision Date12 July 2012
Docket NumberNos. 09–16198,11–10705 and 11–15396.,s. 09–16198
PartiesCarlton GARY, Petitioner–Appellant, v. WARDEN, GEORGIA DIAGNOSTIC PRISON, Respondent–Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

OPINION TEXT STARTS HERE

Michael K. McIntyre (Court–Appointed), John R. Martin (Court–Appointed), Martin Brothers, P.C., Atlanta, GA, for Appellant.

Patricia Beth Attaway Burton, State of Georgia Law Dept., Theresa Marie Schiefer, Atlanta, GA, for Appellee.

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

Before TJOFLAT, EDMONDSON and WILSON, Circuit Judges.

TJOFLAT, Circuit Judge:

A state prisoner under a sentence of death, who petitions a United States District Court pursuant to 28 U.S.C. § 2254, for a writ of habeas corpus, is entitled to the appointment of one or more attorneys if he is “financially unable to obtain adequate representation.” 18 U.S.C. § 3599(a)(2).1 [E]ach attorney so appointed shall represent the [prisoner] throughout every subsequent stage of available judicial proceedings,” which includes “all available post-conviction process, together with applications for stays of execution and other appropriate motions and procedures,” as well as “proceedings for executive or other clemency as may be available.” Id. § 3599(e).2 In addition, if the District Court “find[s] that investigative, expert, or other services are reasonably necessary for the representation of the [prisoner], whether in connection with issues relating to guilt or the sentence, the court may authorize the [prisoner's] attorneys to obtain such services on behalf of the [prisoner] and, if so authorized, shall order the payment of fees and expenses.” Id. § 3599(f)(g).3

In this case, Carlton Gary is a Georgia prisoner on death row. Gary received the appointment of two attorneys under § 3599(a)(2) to prosecute his petition for a writ of habeas corpus in the United States District Court for the Middle District of Georgia.4 After the writ was denied, and before Gary's execution was to take place, the same attorneys represented Gary at a clemency hearing before the Georgia Board of Pardons and Paroles (the “Board”). Clemency was denied, but the Georgia Supreme Court stayed Gary's execution to enable him to pursue a motion for deoxyribonucleic acid (“DNA”) testing in the court in which he was convicted and sentenced, the Superior Court for Muscogee County (the “DNA motion”),5 and, depending on the outcome of the DNA motion,an extraordinary motion for a new trial under the authority of O.C.G.A. §§ 5–5–40 and 5–5–41.6 The Superior Court granted Gary's DNA motion. The testing proceeded and yielded DNA evidence. Based upon this “newly discovered DNA evidence,” Gary began preparation of an extraordinary motion for new trial. The attorneys appointed pursuant to § 3599(a)(2) to represent Gary in the District Court and at the clemency hearing prosecuted the DNA motion and are preparing, and intend to prosecute, his extraordinary motion for a new trial.

In these three appeals, Gary challenges three orders. Appeal No. 09–16198 arises from the District Court's denial of a motion for funds to pay two experts to appear in person at Gary's clemency hearing, Dr. Thomas David and Mr. Roger Morrison; Appeal No. 11–10705 involves the District Court's partial denial of a voucher submitted by Gary's counsel for payment of services rendered in pursuing the extraordinary motion for a new trial; and Appeal No. 11–15396 addresses the District Court's denial of a motion for funds to pay an expert, Dr. Greg Hampikian, to assist Gary's attorneys in connection with the DNA motion.

To address these appeals, it is necessary to briefly recall the criminal conduct that led to Gary's death-row status and the rulings the District Court made in denying Gary's petition for a writ of habeas corpus, for they provide the background against which the District Court made the decisions Gary challenges.

I.
A.

Carlton Gary was convicted by a jury in Muscogee County on August 27, 1986, on three counts each of murder, rape, and burglary.7 He was sentenced to death on each of the murder counts. The Georgia Supreme Court, in affirming his convictions and death sentence, described what led to the convictions:

Police had no viable suspects in the case until 1984, when a gun stolen from the Wynton area in 1977 was discovered in Michigan—a consequence of that state's gun registration laws—in the possession of Carlton Gary's cousin. After further investigation, Gary was arrested for burglary on May 3, 1984. His fingerprints matched those taken from the scenes of four of the murders.

Gary admitted to law enforcement officers that he was present at seven of the crime scenes (the eighth he could not remember), but claimed he was only a burglar. He blamed the murders on another[, a boyhood friend, Malvin Crittenden]. Further investigation revealed that in other instances in New York and in South Carolina, Gary had committed violent crimes and blamed others. For example, he raped and murdered an 89 year old woman in her home in Albany, New York in 1970. His fingerprints were found at the crime scene. Gary claimed one John Mitchell committed the murder. Mitchell, however, was acquitted by a jury. In another New York crime involving rape and burglary, Gary admitted only to being a “lookout” and blamed the rape on another. In all these cases, no evidence other than Gary's own statements and testimony supported his claim that another person was involved in the crime with him.

Gary v. State, 260 Ga. 38, 389 S.E.2d 218, 219–20 (1990).8

B.

After the United States Supreme Court denied his petition for a writ of certiorari, Gary v. Georgia, 498 U.S. 881, 111 S.Ct. 226, 112 L.Ed.2d 181 (1990), and the Georgia courts denied him habeas corpus relief,9 Gary petitioned the United States District Court for the Middle District of Georgia for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Two of the claims Gary presented in his habeas petition are germane here. One was that the Georgia Supreme Court misapplied Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), in affirming the trial court's denial of his request for funds to hire a forensic serologist; the other was that the Georgia Supreme Court erred, under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), in finding that the State's failure to produce pretrial a bite-mark exemplar made from tooth marks on one of the victim's breasts was not material to the defendant's guilt. Gary v. Hall, 558 F.3d 1229, 1248–49 (11th Cir.2009). Gary argued that he needed a forensic serologist to show that he could not have been the source of the semen found at the scenes of two of the murders for which he had been convicted and two of the murders that had been introduced as collateral, uncharged crimes. Similarly, he needed the bite-mark exemplar to show that the marks on another victim's breast—the victim of one of the four uncharged crimes—were not his.10

The district court held ... hearings on Gary's [request for a forensic serologist], some of which involved the serological evidence—semen and blood—the police had found at four of the murder scenes. The evidence had been introduced at trial through the testimony of a GBI Crime Lab serologist, John Wegel, who testified that Gary may or may not have been the secretor. At one of the hearings, the district court considered the significance of Wegel's notes and work papers. Habeas counsel insisted that they could prove that Gary was not the secretor if the court provided them with funds to employ a forensic serologist to analyze Wegel's notes and work papers. The court provided counsel with $2,000 for that purpose.

After counsel obtained the services of a serologist, Roger Morrison, they requested an evidentiary hearing. The court granted their request and held a hearing in which Wegel and Morrison explained and commented on the adequacy of the tests Wegel conducted in analyzing the semen. Wegel testified that the donor of the semen was a weak or non-secretor; Morrison testified that he had examined Gary's saliva and concluded that Gary was a normal secretor, implying that he could not have been the source of the semen. Wegel countered Morrison's conclusion by stating (1) that secretion levels vary over time and that eighteen years had passed between the dates the donor deposited the semen and the date of Morrison's examination, and (2) that secretion levels of semen and saliva may differ and that, while Wegel examined semen, Morrison examined saliva. At the conclusion of the hearing, habeas counsel moved the district court for funds to have Gary's semen tested by Morrison and the results of the test introduced into evidence. The court denied the motion.

Gary, 558 F.3d at 1248–49 (internal footnote omitted). We affirmed. Id. at 1254.

The District Court held an evidentiary hearing on Gary's bite-mark claim. “The court indulged the assumption that, if armed with the exemplar, defense counsel, with the assistance of a forensic odontologist, could have, at the very least, cast doubt on whether the bite marks were Gary's.” Id. at 1256–57. Nonetheless, the court concluded that the unavailability of the bite mark exemplar “d[id] not undermine confidence in the verdict and sentence determined by the jury,” id. (internal citation omitted), and thus denied the claim. We affirmed the court's denial of the claim. Gary, 558 F.3d at 1248–49. Our reasons for doing so no doubt informed, at least in part, the District Court's exercise of discretion in denying Gary's request that the District Court provide him with funds to present the expert testimony of Dr. Thomas David at his clemency hearing.

As for the bite mark exemplar, we ... examine why, according to the State, the exemplar was not shown to the defense prior to trial. The exemplar was created after the body of rape and murder victim Janet Cofer was discovered on April 19, 1978....

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