Gary v. Hall, No. 04-15535.

• Decision Date: 12 February 2009
• Docket Number: No. 04-15535.
• Citation: 558 F.3d 1229
• Parties: Carlton Michael GARY, Petitioner-Appellant, v. Hilton HALL, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

558 F.3d 1229

Carlton Michael GARY, Petitioner-Appellant, v. Hilton HALL, Respondent-Appellee.

No. 04-15535.

United States Court of Appeals, Eleventh Circuit.

February 12, 2009.

Carlton Michael Gary, GA Diag & Class Pris-Perm, Jackson, GA, John R. Martin (Court-Appointed), Martin Brothers, P.C., Atlanta, Ga, Michael K. Mclntyre (Court-Appointed), Atlanta, GA, Harriet Victoria Smith (Court-Appointed), Michael Kennedy Mclntyre & Associates, Atlanta, GA, for Gary.

Susan V. Boleyn, State Law Dept., Atlanta, GA, for Hall

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

Before TJOFLAT, WILSON and ANDERSON, Circuit Judges.

TJOFLAT, Circuit Judge:

Twenty-two years ago, in the Superior Court of Muscogee County, Georgia, twelve jurors unanimously found Carlton Gary guilty of three counts of murder, rape, and burglary. As a result of the murder convictions, Gary was sentenced to death. Since then, he has pursued every possible legal avenue available to him to obtain a new trial. In all, his convictions and death sentences have been reviewed on at least ten separate occasions. In each instance, he has been denied relief. The review here is of the United States District Court for the Middle District of Georgia's denial of his petition for a writ of habeas corpus. We find no merit in the issues presented and therefore affirm.

I.

A.

In its order denying habeas corpus relief, the district court painstakingly parsed the transcript of Gary's trial and provided a detailed summary of the facts giving rise to Gary's arrest and convictions. Gary v. Schofield, 336 F.Supp.2d 1337 (M.D.Ga. 2004). We excerpt the relevant factual portion of the court's order:

Between the fall of 1977 and spring of 1978, terror gripped the historic Wynnton neighborhood in Columbus, Georgia. Targeting elderly white women, an assailant sexually assaulted nine women, killing seven of them and leaving stockings around their necks as his calling card. Labeled the "stocking strangler" by the local news media, the assailant suddenly ceased his activities in the Wynnton area in 1978 and eluded authorities for six years.

These crimes remained unsolved until 1984 when a pistol that was stolen from a home in the Wynnton area in October 1977 was linked to [Gary]. [Gary] was arrested on May 3, 1984 for this burglary. After acknowledging his Miranda rights,¹ [Gary] confessed that he was present at the burglary and that he was either present at, or had knowledge of, eight of the nine 1977-78 Wynnton area rapes and murders. [Gary] stated that he burglarized these women's homes while an individual named Malvin A. Crittenden committed the rapes and murders. The authorities found no corroborating evidence linking Crittenden to the crimes.

[Gary]'s fingerprints were ultimately found to match the latent prints found at four of the crime scenes. Blood evidence and hair samples taken from the crime scenes were inconclusive—they did not establish [Gary] as the perpetrator, nor did they exclude [Gary].

An investigation into [Gary]'s background revealed his connection to similar crimes in the past. Specifically, on April 14, 1970, the body of eighty-five year old Nellie Farmer was found in her residence in Albany, New York. She had been raped, strangled, and her body was covered. A fingerprint taken at the scene matched [Gary's]. When arrested and confronted with this evidence, [Gary] claimed that he was at the crime scene, but an individual by the name of John Lee Mitchell actually raped and killed Mrs. Farmer. Mr. Mitchell was acquitted of these charges.

On January 2, 1977, fifty-five year old Jean Frost was attacked and raped during a burglary of her home in Syracuse, New York. One of the items taken during the burglary was her watch. When [Gary] was taken into custody two days later, he had the watch in his pocket. [Gary] confessed to being the "lookout" for the Frost burglary. He claimed that an individual named Dudley Harris committed the attack the attack and rape. Mr. Harris was not convicted for the crimes.

Regarding the Columbus "stocking strangler" crimes, [Gary] was indicted for raping, murdering, and burglarizing the homes of three of the nine victims— Ruth Schieble, Martha Thurmond, and Kathleen Woodruff. At trial, the Prosecution introduced evidence of the attacks on the other "stocking strangler" victims, claiming that they showed a similar pattern and were also committed by [Gary]. The evidence presented by the Prosecution to show a similar pattern included the following. All of the victims were elderly white women between the ages of 55 and 89. Each of the victims lived alone. In each crime, the assailant broke into the woman's home and burglarized her residence. With the exception of one, all of the crimes happened at night. All of the elderly women were sexually assaulted. All of the attacks involved ligature strangulation, usually with the victim's stockings or pantyhose. With the exception of only one attack, all of the attacks occurred in the Wynnton area of Columbus, Georgia. Every deceased victim had been either partially or totally covered after the attack.

The evidence at trial showed that Mrs. Schieble was raped, beaten, and strangled to death with a stocking on October 21, 1977. She was eighty-nine years old at the time, legally blind, and could walk only with the aid of a walker. Mrs. Schieble's son and his wife discovered her lifeless, covered body on October 21, 1977.

Martha Thurmond's body was discovered on October 25, 1977. Her body was covered by a pillow, blankets, and sheets. The evidence showed that Mrs Thurmond was sexually assaulted, beaten, and strangled with a stocking.

On December 28, 1977, the body of seventy-four year old Kathleen Woodruff was discovered, partially covered, and lying on her bed. Mrs. Woodruff had been raped and strangled with a scarf.

The similar crimes evidence showed that Gertrude Miller was attacked on September 11, 1977. She was raped and severely beaten. Knotted stockings, similar to the ones used to strangle the other victims, were found at the scene. Mrs. Miller survived the attack and identified [Gary] as her assailant.

The body of fifty-eight year old Mary "Fern" Jackson was discovered on September 16, 1977. Her body was covered and she had been beaten and raped. Mrs. Jackson was strangled to death with a stocking and a sash from a dressing gown.

Seventy-one year old Jean Dimenstein was raped and strangled to death with a stocking in her home on September 24, 1977. Her body was covered with sheets and a pillow.

On February 11, 1978, police responded to a call and found Mrs. Ruth Schwob sitting on the edge of her bed with a stocking tied around her neck. Mrs. Schwob never identified [Gary] as her assailant. Although she survived the February 11, 1978 assault, she died before [Gary] was charged and tried.

On February 12, 1978, the body of seventy-eight year old Mildred Borom was found lying in a hallway of her home. She was lying on her back with her face covered. Mrs. Borom had been strangled with a venetian blind cord. She also had been raped.

On April 19, 1978, sixty-one year old Janet Cofer's body was found lying in her bed covered with linen and with a pillow over her face. Mrs. Cofer had been raped and strangled with a stocking. Although Mrs. Cofer did not reside in the Wynnton area of Columbus (as all of the other victims did), she had attended choir practice at the Wynnton Methodist Church on the evening of her murder.

Id. at 1341-43 (internal citations and footnotes omitted).

B.

Gary was indicted in Muscogee County on May 4, 1984 and charged with three counts of malice murder, three counts of rape, and three counts of burglary. The alleged victims were Ruth Schieble, Martha Thurmond, and Kathleen Woodruff. On May 9, Judge John Land of the Muscogee County Superior Court found Gary to be indigent and appointed two lawyers, William Kirby and Stephen Hyles, to represent him.

On June 20, defense counsel filed several motions. They requested funds to hire an investigator and to travel to interview potential witnesses; they asked the court to have Gary evaluated by psychiatric and psychological experts for the purpose of determining mental competence; and they sought the production of all physical evidence in the State's possession, including fingerprints, hair, blood, and bodily fluids obtained from the scene of some of the murders. They also sought the reports of experts employed by the State to examine such evidence and requested funds to hire independent experts to examine the evidence. In addition, they sought complete access to the State's investigative files, including statements Gary made to the police, a list of the witnesses who appeared before the grand jury, and any exculpatory Brady material.² They also moved for a change of venue and the severance of the indictment counts, so that the murder and rape counts would be tried separately from the burglary counts. Lastly, counsel requested a preliminary hearing for the purpose of narrowing the issues for trial.

On July 17, Judge Land convened a hearing on defense counsel's motions. After hearing from the parties, the court granted all of the motions except the motion for funds to hire independent experts to examine the State's physical evidence and the motion for a psychiatric and psychological evaluation. As to those two motions, the court deferred its ruling. At the end of the hearing, the court scheduled the trial for December 3, 1984 in Columbus.³

On August 28, August F. Siemon, an Atlanta lawyer, filed a notice of appearance, representing that Gary had retained him as defense counsel.⁴ He attached a statement from Gary indicating that he was Gary's counsel of choice, with the authority to retain additional counsel as necessary. Siemon withdrew Kirby and Hyles's requests for a severance and for a change of venue and requested that the court withhold ruling on the motions for a...