Hittson v. Warden

• Citation: 759 F.3d 1210
• Decision Date: 09 July 2014
• Docket Number: No. 12–16103.,12–16103.
• Parties: Travis Clinton HITTSON, Petitioner–Appellee–Cross Appellant, v. GDCP WARDEN, Respondent–Appellant–Cross Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

759 F.3d 1210

Travis Clinton HITTSON, Petitioner–Appellee–Cross Appellant,

v.GDCP WARDEN, Respondent–Appellant–Cross Appellee.

No. 12–16103.

United States Court of Appeals, Eleventh Circuit.

July 9, 2014.

Brian Kammer, Robyn A. Painter, Kirsten Salchow, Atlanta, GA, for Petitioner–Appellee–Cross Appellant.

Sabrina Graham, Beth Attaway Burton, Georgia Department of Law, Atlanta, GA, for Respondent–Appellant–Cross Appellee.

Appeal from the United States District Court for the Middle District of Georgia. D.C. Docket No. 5:01–cv–00384–MTT.

Before CARNES, Chief Judge, TJOFLAT and WILSON, Circuit Judges.

TJOFLAT, Circuit Judge:

In April 1992, Travis Hittson and Edward Vollmer, who were enlisted men in the Navy, brutally killed, mutilated, and dismembered their shipmate Conway Utterbeck. Hittson confessed to the crime, and in February 1993 he was convicted of murder in the Superior Court of Houston County, Georgia. During the penalty phase of his trial,¹ Hittson tried to show that his co-defendant, Vollmer, had planned the murder and manipulated Hittsoninto helping him carry it out. This strategy fell short and the jury returned a unanimous death sentence, finding as an aggravating factor that the murder “was outrageously or wantonly vile, horrible, or inhuman.” SeeO.C.G.A. § 17–10–30(b)(7).

After Hittson exhausted his direct appeal and collateral attack remedies in the Georgia courts, he petitioned the United States District Court for the Middle District of Georgia for a writ of habeas corpus pursuant 28 U.S.C. § 2254. In his petition, Hittson presented twenty separate claims for relief. Those relevant to this appeal concern the penalty phase of his trial: (1) The trial court erroneously allowed the State's psychologist to testify to statements made by Hittson during a court-ordered mental-health examination, in violation of Hittson's Fifth Amendment right against self-incrimination and Sixth Amendment right to the effective assistance of counsel.² (2) Hittson's attorneys failed to properly present to the jury expert testimony regarding his background and mental condition, thus denying him his Sixth Amendment right to the effective assistance of counsel. And (3) the State withheld exculpatory evidence in violation of the Due Process Clause of the Fourteenth Amendment and the rule of Brady v. Maryland³—to wit, a Navy psychiatric report diagnosing Vollmer with severe Antisocial Personality Disorder, and two letters written by Vollmer from jail following his arrest, in which he discussed the murder.

The District Court found that Hittson was entitled to habeas relief from his death sentence based on the State psychologist's testimony. Hittson v. Humphrey, No. 5:01–cv–384 (MTT), 2012 WL 5497808, at *56 (M.D.Ga. Nov. 13, 2012). The court found that trial court's allowance of the psychologist's testimony denied Hittson his Fifth and Sixth Amendment rights under Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981),⁴ and that the testimony had a “substantial and injurious effect” on the jury's death sentence and was therefore not harmless, see Brecht v. Abrahamson, 507 U.S. 619, 638, 113 S.Ct. 1710, 1722, 123 L.Ed.2d 353 (1993). The court denied the remainder of Hittson's claims for relief.

On appeal, the State now concedes that the trial court's admission of the psychologist's testimony violated Hittson's constitutional rights and does not appeal the District Court's ruling on this point—leaving only the question of whether the admission of the testimony was harmless error under Brecht. Hittson also cross-appealed the District Court's denial of some of his penalty phase challenges. The District Court granted Hittson a certificate of appealability (“COA”) on his Brady claims, and we expanded the COA to include his ineffective-assistance-of-counsel claim—that counsel failed to present expert testimony relating to Hittson's background and mental condition.

We expanded the COA a second time after the Supreme Court decided Trevino v. Thaler, ––– U.S. ––––, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013)—by which point briefing was already underway in this appeal. Trevino recognized certain circumstances in which a federal court may excuse a habeas petitioner's failure to properly raise his claims in state court. – –– U.S. at ––––, 133 S.Ct. at 1920–21; see also Martinez v. Ryan, –––U.S. ––––, 132 S.Ct. 1309, 1320–21, 182 L.Ed.2d 272 (2012). Before Trevino came down, Hittson sought leave from the District Court to add four new claims to his federal petition—claims that he had not raised in any of his state proceedings. The District Court denied the motion. Because Trevino has some bearing on the District Court's analysis, we expanded Hittson's COA to decide:

Whether Hittson should be allowed to amend his federal habeas petition to include claims of ineffective assistance of trial counsel which were previously defaulted through prior counsel in state habeas proceedings in light of the United States Supreme Court's ruling in Trevino v. Thaler....

After reviewing the record and entertaining the parties' arguments in open court, we (1) reverse the District Court's grant of habeas relief setting aside Hittson's death sentence based on the State psychologist's testimony, (2) affirm the District Court's denial of Hittson's Brady claims and ineffective-assistance-of-counsel claim, and (3) hold that Trevino does not enable Hittson to raise new claims that he failed to litigate in state court.

Part I of this opinion describes the crime, as presented to the jury in the State's case in chief, and the law enforcement's investigation. Part II covers Hittson's 1993 trial, his direct appeal to the Georgia Supreme Court, and that court's refusal to grant him habeas corpus relief. Part III covers the § 2254 proceedings in the United States District Court and its granting of the writ setting aside Hittson's death sentence. Part IV explains the standard we apply under § 2254 in reviewing the Georgia courts' denial of Hittson's constitutional claims. In parts V, VI, and VII, we review and dispose of those claims. Part VIII explains our reasons for concluding Hittson may not rely on Trevino to excuse his procedural default. And we briefly conclude in part IX.

I.

A.

In the spring of 1992, Travis Hittson, Edward Vollmer, and Conway Utterbeck were stationed aboard the USS Forrestal, an aircraft carrier that was based in Pensacola, Florida, at the time. They were all assigned to the electrical division of the engineering department. Vollmer and Hittson were on the same work detail, and Vollmer was Hittson's Leading Petty Officer. Utterbeck had a different assignment but worked in a similar capacity in the same area of the ship.

On Friday, April 3, 1992, Vollmer invited Hittson and Utterbeck to come with him to his parents' house in Warner Robins, Georgia, for the weekend. His parents were out of town. Apparently neither Hittson nor Utterbeck was aware that the other had also been invited until shortly before they left Pensacola. The three men arrived at Vollmer's parents' house late Friday evening, but they did not have a key, so they spent the night in a storage shed behind the house. On Saturday, April 4, a friend of Vollmer's parents came by to check on the house; finding Vollmer and the two others there, he gave them a key. The three sailors spent most of the day on Saturday hanging around the house, but sometime Saturday evening, Hittson and Vollmer went out drinking. They left Utterbeck at the house.

Early in the morning of Sunday, April 5, after several hours of drinking, Hittson and Vollmer headed back to the Vollmer residence. According to the statement later given by Hittson to law enforcement, he was very drunk by that time. On the drive back, Vollmer worked Hittson up by telling him that Utterbeck was “going to get us”—that Utterbeck was plotting to kill the two of them—so “we've got to get him” by killing him first. At some point—though it is not clear when—Vollmer told Hittson that Utterbeck had a hit list with Hittson's and Vollmer's names on it. When they pulled into the driveway, Vollmer put on a bulletproof vest and a long trench coat and grabbed a sawed-off shotgun and a .22 caliber handgun from his car. He gave Hittson an aluminum bat that was also in the car and told Hittson that Utterbeck was waiting for them inside the house and was planning to shoot them.⁵ Vollmer instructed Hittson to go in first and “get him” and then “get him in the kitchen”—so they would not make a mess on the carpet.

When Hittson entered the house, he found Utterbeck asleep in a recliner in the living room. Hittson sneaked up on him and hit him in the head with the bat. Utterbeck woke up and jumped up out of the chair. Hittson hit him in the head again, knocking him to the floor. Utterbeck raised a hand to defend himself, so Hittson hit his hand with the bat and then hit him in the head a third time. The third hit was apparently enough to subdue Utterbeck. Hittson dragged him by his hands into the kitchen, where Vollmer was waiting. Utterbeck was still conscious and asked Hittson, “what did I ever do to you?” Vollmer gave Hittson the .22 pistol and stood on Utterbeck's hand to keep him from struggling. Utterbeck screamed “no, no,” and begged for his life, but Hittson shot him point blank in the forehead. In his own words, “I had no emotion or nothing on my face. I know I didn't. I was cold and Vollmer steps on his hand and ... handed me the gun, I shot him.”

Hittson and Vollmer stripped Utterbeck's body, taking the $62 they found in his pockets. They left the body in the kitchen and went to a nearby Waffle House to get something to eat. Upon their return, Vollmer told Hittson that they had to dismember the body and clean up the house to conceal the crime. They initially tried to cut up the body with a serrated steak knife from the kitchen, but then switched to a hacksaw from the tool shed out back. They also found a piece of slate...