Fults v. Warden

• Decision Date: 26 August 2014
• Docket Number: No. 12–13563–P.,12–13563–P.
• Citation: 764 F.3d 1311
• Parties: Kenneth Earl FULTS, Petitioner–Appellant, v. GDCP WARDEN, Respondent–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

764 F.3d 1311

Kenneth Earl FULTS, Petitioner–Appellant,

v.GDCP WARDEN, Respondent–Appellee.

No. 12–13563–P.

United States Court of Appeals, Eleventh Circuit.

Aug. 26, 2014.

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

Before MARCUS, JORDAN, and DUBINA, Circuit Judges.

JORDAN, Circuit Judge:

Kenneth Earl Fults is under sentence of death in Georgia following his guilty plea to the 1996 murder and kidnapping of Cathy Bounds, his next-door neighbor. After the district court denied his petition for a writ of habeas corpus, see28 U.S.C. § 2254, Mr. Fults filed a notice of appeal and obtained a certificate of appealability on a number of claims. Following review of the extensive record in this case, and with the benefit of oral argument, we affirm the denial of habeas relief.

I

The Georgia Supreme Court, in its opinion on direct appeal, summarized the circumstances relating to Ms. Bounds' murder as follows:

The evidence adduced at Fults' sentencing trial showed that he carried out a week-long crime spree which was centered, at least in part, upon his desire to murder a man who was engaged in a relationship with his former girlfriend. Fults first committed two burglaries, obtaining several handguns. After a failed attempt at murdering his former girlfriend's new boyfriend with one of the stolen handguns, Fults then burglarized the home of his next-door neighbors. After the male neighbor left for work, Fults forced his way through the front door wearing gloves and a hat pulled down over his face. Fults confronted the female occupant of the home, Cathy Bounds, brandishing a .22 caliber handgun he had stolen during one of the burglaries. Ms. Bounds begged for her life and offered Fults the rings on her fingers. Fults turned Ms. Bounds around toward the bedroom, either taped or forced her to tape her eyes closed by wrapping over six feet of electrical tape around her head, forced her into the bedroom, placed her face-down on her bed, placed a pillow over her head, and shot her five times in the back of the head.

A search of Fults' trailer home revealed a boastful letter he had written in gang code in which he described the murder with some alterations of detail. Upon being confronted with this letter by a law enforcement officer, Fults confessed to killing Ms. Bounds but maintained that he had shot her by accident while in a dream-like state. The murder weapon was recovered from under Fults' trailer home, and .22 caliber shell casings shown to have been fired by the murder weapon as well as items from the earlier burglaries were found behind Fults' trailer home.

Fults v. State, 274 Ga. 82, 548 S.E.2d 315, 318–19 (2001).

Just before opening statements were set to begin in his trial, Mr. Fults pled guilty to charges of malice murder, burglary, kidnapping with bodily injury, and possession of a firearm in the commission of a crime. In May of 1997, at the conclusion of a three-day sentencing hearing, the jury found two aggravating circumstances—that the murder was committed during the course of the kidnapping with bodily injury, and that the murder was outrageously and wantonly vile, horrible, or inhuman—and fixed Mr. Fults' punishment at death. Id. at 322.

II

The district court's denial of Mr. Fults' habeas corpus petition is subject to plenary review. See, e.g., Owens v. McLaughlin, 733 F.3d 320, 324 (11th Cir.2013). Because his habeas corpus petition is governed by the provisions of the Antiterrorism and Effective Death Penalty Act, Pub.L. No. 104–132, 110 Stat. 1214 (1996), Mr. Fults can obtain relief only if the state court adjudication of a claim was “contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court,” or was “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2). This standard is “difficult to meet.” Metrish v. Lancaster, ––– U.S. ––––, 133 S.Ct. 1781, 1786, 185 L.Ed.2d 988 (2013).

“A state court decision is ‘contrary to’ clearly established federal law when it arrives at an opposite result from the SupremeCourt on a question of law, or when it arrives at a different result from the Supreme Court on ‘materially indistinguishable’ facts.” Owens, 733 F.3d at 324 (quoting Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). See, e.g., Premo v. Moore, 562 U.S. 115, 131 S.Ct. 733, 743, 178 L.Ed.2d 649 (2011) (“A state-court adjudication of the performance of counsel under the Sixth Amendment cannot be ‘contrary to’ Fulminante, for Fulminante—which involved the admission of an involuntary confession in violation of the Fifth Amendment—says nothing about the Strickland standard of effectiveness.”).

Under the “unreasonable application” clause, we “grant relief only ‘if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the ... case.” Pope v. Secretary, 752 F.3d 1254, 1262 (11th Cir.2014) (citations and some punctuation omitted). “An unreasonable application [of clearly established federal law] must be objectively unreasonable, not merely wrong; even clear error will not suffice. Rather, as a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim ... was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” White v. Woodall, ––– U.S. ––––, 134 S.Ct. 1697, 1702, 188 L.Ed.2d 698 (2014) (internal quotation marks and citations omitted).

Under § 2254(e)(1), a state court's findings of fact are “presumed to be correct,” and a habeas petitioner has the burden of rebutting that presumption of correctness by “clear and convincing evidence.” Miller–El v. Cockrell, 537 U.S. 322, 351, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). The Supreme Court has described the “clear and convincing” standard as an intermediate standard of proof that lies between proof by a preponderance of the evidence and proof beyond a reasonable doubt. See Addington v. Texas, 441 U.S. 418, 423–24, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979). As we have interpreted “clear and convincing” evidence, the standard calls for proof that a claim is “high[ly] probab[le].” United States v. Owens, 854 F.2d 432, 436 (11th Cir.1988). See also Colorado v. New Mexico, 467 U.S. 310, 316, 104 S.Ct. 2433, 81 L.Ed.2d 247 (1984) (a proponent satisfies the “clear and convincing” evidence standard if it can “place in the ultimate factfinder an abiding conviction that the truth of its factual contentions are ‘highly probable’ ”) (citation omitted).

III

On appeal, Mr. Fults argues that he is entitled to relief because one of the jurors in his case harbored racial animus against him; he is mentally retarded and ineligible for the death penalty under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002); his appellate counsel rendered ineffective assistance by not asserting trial counsel's failure to investigate, and present evidence of, mental retardation; and his post-conviction counsel rendered ineffective assistance, which provides cause to overcome the default for certain claims under Martinez v. Ryan, ––– U.S. ––––, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012). We address only the juror bias and mental retardation claims. With respect to the ineffective assistance of appellate counsel claim, we affirm for the reasons set forth in the district court's orders. With respect to the argument based on Martinez, although Mr. Fults makes conclusory assertions in his brief that his post-conviction counsel performed deficiently, he does not explain why the performance was deficient or how, if the performance was deficient, he was prejudiced. We therefore decline to address the argument. See, e.g., United States v. Gupta, 463 F.3d 1182, 1195 (11th Cir.2006) (“We may decline to address an argument where a party fails to provide arguments on the merits of an issue in its initial or reply brief. Without such argument the issue is deemed waived.”).

A

We begin with Mr. Fults' claim of racial prejudice on the part of a juror, a claim which both the state court and the district court found was procedurally defaulted. Like those courts, we too conclude that this claim is barred.

When he filed his amended state habeas corpus petition in April of 2005—almost eight years after the jury sentenced him to death—Mr. Fults generally alleged, as part of Claim XVIII, that the “improper biases of jurors ... infected their deliberations,” causing them to “improperly prejudg[e]” his case. Record Excerpts, Vol. 1, Tab 7–46 at 67. Mr. Fults did not discuss or mention any specific juror in Claim XVIII.

Mr. Fults did, however, incorporate, and attach to his amended state habeas petition, a number of affidavits. One of these belonged to Thomas Buffington, who served on Mr. Fults' sentencing jury. Handwritten, and signed and notarized just two days before Mr. Fults filed his amended state habeas petition, Mr. Buffington's affidavit provided the following sworn testimony:

2. I served as a juror in the capital sentencing trial of Kenneth Fults in May 1997.

3. I have been on a jury before, but this was my first capital trial.

4. I don't know if he ever killed anybody, but that nigger got just what should have happened.

5. Once he pled guilty, I knew I would vote for the death penalty because that's what that nigger deserved.

D.E. 7–31 at 20. The affidavit was silent as to when Mr. Buffington first disclosed this information to Mr. Fults or his counsel, and Mr. Fults did not explain in his state habeas corpus petition how or when he and his counsel came to learn of Mr. Buffington's alleged prejudice.¹

The state, in its answer to Mr. Fults' amended state habeas petition, argued that the claim of juror...