Double v. Pinerio

• Decision Date: 30 September 2022
• Docket Number: CV 122-002
• Parties: CARL IVAN DOUBLE, Petitioner, v. AARON PINERIO, Warden, Respondent.
• Court: U.S. District Court — Southern District of Georgia

CARL IVAN DOUBLE, Petitioner,
v.
AARON PINERIO, Warden, Respondent.

No. CV 122-002

United States District Court, S.D. Georgia, Augusta Division

September 30, 2022

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

BRIAN K. EPPS, UNITED STATES MAGISTRATE JUDGE

Petitioner, an inmate at Coastal State Prison in Garden City, Georgia, brings the above-captioned petition pursuant to 28 U.S.C. § 2254. Having considered all the relevant pleadings, for the reasons set forth below, the Court REPORTS and RECOMMENDS Petitioner's § 2254 petition be DENIED, this civil action be CLOSED, and a final judgment be ENTERED in favor of Respondent.

I. BACKGROUND

On January 12, 2016, the Richmond County grand jury indicted Petitioner on one count of aggravated child molestation and two counts of child molestation. (Doc. no. 15-6, pp. 52-54.) Without a plea agreement, Petitioner pleaded guilty to all three charges on October 14, 2016. (Id. at 60-61, 82, 109.) At the time of the offense conduct, Petitioner was twenty-five years old, and the victim was ten years old. (Id. at 92.) Petitioner explained to the deputy who responded to the scene he was infatuated with children, had been in trouble for this issue previously, and had kissed and fondled the victim under her clothes. (Id. at 91.) The victim

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also reported Petitioner had pulled down her pants, made contact with her private parts, and showed his penis. (Id. at 92.)

Although there was no plea agreement, Petitioner chose to plead guilty to avoid the possibility of a sentence of life in prison without the possibility of parole if he were convicted at trial. (Id. at 95.) In mitigation, defense counsel pointed out Petitioner had no prior criminal history, (id. at 92), and told the trial judge Petitioner had been abused by his father as a young boy, had an eleventh-grade education and a learning disability, and was truly sorry for the acts he admitted having done to the victim, (id. at 94-95). Counsel also asked for a sentence at the low end of the possible spectrum. (Id. at 90.) The trial court sentenced Petitioner to thirty-five years in prison followed by life on probation for aggravated child molestation, and twenty years, serve nineteen in prison, for each count of child molestation, with all sentences running concurrently. (Id. at 38.) Attorney James C. Walker, Office of the Public Defender, represented Petitioner through entry of his guilty plea and the filing of a Motion to Withdraw Plea of Guilty, in which Petitioner claimed his plea was not entered knowing and voluntary. (Id. at 26, 60, 64-65.)

Attorney Jason R. Hasty was appointed as conflict counsel by the Georgia Public Defender Standards Council to represent Petitioner after entry of the motion to withdraw the guilty plea, and the trial court held a hearing on the motion on September 21, 2017. (Id. at 69, 102.) The trial court denied the motion to withdraw, (id. at 21-22), and Mr. Hasty continued to represent Petitioner on direct appeal. (Id. at 117.) On appeal, Petitioner argued his guilty plea was not knowing and voluntary because counsel rendered ineffective assistance by failing to advise Petitioner pleading guilty would result in a sentence without the possibility of parole.

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(Id. at 117-23.) The Court of Appeals affirmed the denial of the motion to withdraw the guilty plea. (Id. at 130-33, Double v. State, No. A18A1265 (Ga.Ct.App. July 27, 2018).)

The appellate court first established (1) the trial court affirmatively determined Petitioner knew and understood the nature of the plea and attendant consequences; and (2) Petitioner had marked, signed, and initialed a waiver-of-rights sheet confirming he understood the maximum possible sentences. Next, the appellate court explained Petitioner, “[f]or the most part,” contended Mr. Walker had been looking out for the victim's best interest rather than his welfare because of a conflict of interest. (Id. at 131.) However, Mr. Hasty's position on the record was not that Mr. Walker labored under a conflict, but instead that the guilty plea was not knowing and voluntary. (Id. at 131-32.) As the ineffective assistance claim had been raised for the first time on direct appeal rather than at the earliest practicable moment, which would have been in the motion to withdraw the guilty plea, the claim had been waived. (Id. at 132.) Thus, the ineffective assistance claim raised for the first time on direct appeal had been waived. (Id.)

Petitioner filed a state habeas corpus petition pro se on December 31, 2018, in the Superior Court of Baldwin County, raising three claims:

(1) Trial counsel provided ineffective assistance by failing to alert the trial court Petitioner was on medication at the time of the guilty plea

(2) Petitioner was under the influence of 2 milligrams of Haloperidol at the time he pleaded guilty

(3) Mr. Walker labored under a conflict of interest because he knew the victim's mother.

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(Doc. no. 15-1; doc. no. 15-6, pp. 5-6.) Petitioner orally raised the following additional grounds at his state habeas evidentiary hearing:

(4) Trial counsel provided ineffective assistance in the following ways:

(a) allowed the judge to seal Petitioner's mental health evaluation before he could review it;

(b) did not negotiate a plea agreement because he knew the victim; and

(c) did not inform the judge about mitigating circumstances prior to sentencing.

(5) The trial judge did not inform Petitioner he was presumed innocent prior to entry of the guilty plea.

(6) Mr. Hasty would not raise an ineffective assistance of counsel claim against Mr. Walker based on an alleged conflict of interest.

(Doc. no. 15-6, pp. 7-10.)

The state habeas court denied relief in a written order entered May 26, 2020, finding the three grounds in the written petition were procedurally defaulted, and Petitioner had not satisfied the cause and prejudice standard necessary to overcome default. (Doc. no. 15-2 at 4-5.) The state habeas court did not specifically address the claims raised orally by Petitioner at the evidentiary hearing. (See id. at 3-6.) Petitioner raised the substance of both the written and oral issues in his request for a certificate of probable cause to appeal (“CPC”). (See doc. no. 15-3.) The Georgia Supreme Court denied a CPC without comment and issued its remittitur on September 2, 2021. (Doc. nos. 15-4, 15-5, Double v. Bobbitt, No. S20H1313 (Ga. Aug. 10 & Sept. 2, 2021).)

Petitioner then timely filed the above-captioned § 2254 petition pro se, raising the following claims:

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(1) Trial counsel, Mr. Walker, provided ineffective assistance by:

(a) failing to alert the trial judge Petitioner was under the influence of haloperidol when he entered his guilty plea;

(b) operating under a conflict of interest based on his prior representation of the victim's family;

(c) failing to address Petitioner's mental health evaluation with the trial judge;

(d) failing to negotiate a plea deal for Petitioner because of his preference for the victim; and

(e) failing to emphasize mitigating circumstances during sentencing because of his preference for the victim.

(2) Appellate counsel, Mr. Hasty, provided ineffective assistance by failing to allege ineffective assistance by Mr. Walker based on an alleged conflict of interest.

(3) The trial judge erred by not informing Petitioner prior to entry of the guilty plea that he was presumed innocent but would lose that presumption by pleading guilty.

(4) The trial judge abused his discretion by sealing Petitioner's mental health records without allowing him to review them for mitigating circumstances.

(See doc. no. 1.) Respondent argues federal relief should be denied on all claims because the state court decision deserves deference, the claims are procedurally defaulted, or the claims fail to present a federal question. (See doc. nos. 10, 10-1.)

II. STANDARD OF REVIEW

Under § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”):

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with

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respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim

(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 facts in light of the evidence presented in the State court proceeding.

The United States Supreme Court has characterized § 2254(d) as “part of the basic structure of federal habeas jurisdiction, designed to confirm that state courts are the principal forum for asserting constitutional challenges to state convictions.” Harrington v. Richter, 562 U.S. 86, 103 (2011). Accordingly, § 2254(d) creates a “difficult to meet and highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (citations omitted).

In Brown v. Payton, 544 U.S. 133, 141 (2005), the Supreme Court explained the difference between the “contrary to” and “unreasonable application” clauses in § 2254(d)(1) as follows:

A state-court decision is contrary to this Court's clearly established precedents if it applies a rule that contradicts the governing law set forth in our cases, or if it confronts a set of facts that is materially indistinguishable from a decision of this Court but reaches a different result. A state-court decision involves an unreasonable application of this Court's clearly established precedents if the state court applies this Court's precedents to the

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