Green v. Nelson

• Citation: 595 F.3d 1245
• Decision Date: 04 February 2010
• Docket Number: No. 08-11212.,08-11212.
• Parties: James L. GREEN, Petitioner-Appellant, v. Cynthia NELSON, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

595 F.3d 1245

James L. GREEN, Petitioner-Appellant, v. Cynthia NELSON, Respondent-Appellee.

No. 08-11212.

United States Court of Appeals, Eleventh Circuit.

February 4, 2010.

Zachary D. Tripp, King & Spalding, LLP, Washington, DC, Courtland L. Reichman (Court-Appointed), King Spalding, Atlanta, GA, for Green.

Amy E. Hawkin Morelli, Atlanta, GA, for Nelson.

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

Before TJOFLAT and BARKETT, Circuit Judges, and BARZILAY,^* Judge.

BARKETT, Circuit Judge:

James L. Green, a Georgia state prisoner serving two consecutive life sentences, appeals the district court's denial of his pro se 28 U.S.C. § 2254 habeas petition in which he raised numerous challenges to his state convictions of rape, aggravated sodomy, and related charges which arose out of two separate attacks on two women. We granted a Certificate of Appealability on the following issues:

Was the state court's determination that Green's trial counsel was not ineffective for failing to file a motion to suppress blood and DNA evidence contrary to or an unreasonable application of clearly established federal law or an unreasonable determination of the facts in light of the evidence presented?

Was the state court's determination that there was sufficient evidence to sustain a conviction for aggravated sodomy as charged in Count Three of the indictment contrary to or an unreasonable application of clearly established federal law or an unreasonable determination of the facts in light of the evidence presented?

Did the district court err in denying as unexhausted and procedurally barred Grounds Fourteen and Fifteen in Green's federal habeas petition?

Our review of Green's federal habeas petition is governed by the standards set forth in 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Green argues, first, that his state convictions must be reversed because of the ineffectiveness of his trial counsel in failing to move to suppress his blood and DNA evidence. Second, he argues that his conviction for aggravated sodomy under Count Three must be reversed because of the complete lack of evidence to support that conviction. He asserts that the state courts unreasonably applied clearly established federal law in rejecting these two claims. Finally, he argues that the district court erroneously determined that Grounds Fourteen and Fifteen of his federal habeas petition were procedurally barred. We address, in turn, each of Green's arguments and the appropriate standard of review under AEDPA for each of these claims.

I. INEFFECTIVE ASSISTANCE OF COUNSEL

Green argues that his trial counsel was ineffective for not moving to suppress his blood and DNA evidence. The state obtained that evidence with a warrant based on an affidavit containing incorrect statements of fact. Green contends that the affiant knew or should have known that statements in the affidavit were false. The state courts rejected this claim on the merits. Accordingly, § 2254(d) allows us to grant federal habeas relief only if the state court adjudication

(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.

28 U.S.C. § 2254(d).

The Supreme Court has explained that a decision "contrary to" federal law contradicts that Court on a settled question of law or holds differently than did that Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). In short, it is a decision "substantially different from the [Supreme Court's] relevant precedent . . . ." Id. A decision that unreasonably applies federal law identifies the correct governing legal principle as articulated by the United States Supreme Court, but unreasonably applies that principle to the facts of the petitioner's case. Id. at 407. In other words, it is one that "unreasonably extends [the] principle . . . to a new context where it should not apply or unreasonably refuses to extend [it] to a new context where it should apply." Id. Finally, "a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding . . . ." Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003).

Here, we look to the decision by the Court of Appeals of Georgia on Green's direct appeal in Green v. State, 249 Ga.App. 546, 547 S.E.2d 569 (2001), because the state habeas court concluded that it was bound by the state appellate court's decision regarding the merits of this claim.¹ The state court's findings and conclusion relevant to the ineffective assistance of counsel claim are as follows:

Finally, Green argues ineffective assistance because his counsel did not file a motion to suppress evidence of a blood sample taken from Green. In his appellate brief, Green raises concerns regarding the lawfulness of the warrant for the blood sample and argues that his counsel should have moved to suppress that evidence.

Again, Green's claim of ineffective assistance of counsel fails. The decision of whether to file a motion to suppress is a matter of professional judgment, and we will not judge counsel's trial strategy in hindsight.

Although another lawyer may have conducted the defense in a different manner and taken another course of action, the fact that defendant and his present counsel disagree with the decisions made by trial counsel does not require a finding that defendant's original representation was inadequate.

Counsel's decisions on matters of tactic and strategy, even if unwise, do not amount to ineffective assistance of counsel.

Green, 249 Ga.App. at 554, 547 S.E.2d 569 (internal citations and quotation marks omitted).

Ineffective assistance of counsel claims are governed by the standard set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "An ineffective assistance claim has two components: A petitioner must show that counsel's performance was deficient, and that the deficiency prejudiced the defense." Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052). To establish deficiency, a defendant must show that "counsel's representation `fell below an objective standard of reasonableness.'" Wiggins, 539 U.S. at 521, 123 S.Ct. 2527 (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). The Supreme Court instructs that the standard for appropriate attorney conduct is one of "reasonableness under prevailing professional norms." Id. "[S]trategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052. A failure to file a motion to suppress that is based on a lack of knowledge of the state of the evidence due to counsel's misunderstanding or ignorance of the law or failure to conduct adequate investigations can satisfy Strickland's deficiency prong. Kimmelman v. Morrison, 477 U.S. 365, 383-87, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). Additionally, to establish prejudice, a defendant must prove "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

The evidence relating to Green's claim that he received ineffective assistance of trial counsel is as follows: Green was convicted of rape, sodomy, assault, and other charges that involved two victims and took place at two different times. The first victim, Sylvia Grisson, testified that she was attacked in her home by a man, later identified as Green, who forced her to perform oral sex on him and to lick his anus. He then pushed her down on her bed and raped her. The man also ejaculated. Grisson immediately called the police, who came to her home and took her to the hospital where a rape kit was performed. Grisson never identified Green as her attacker and did not testify to any other details of the crime.

The second victim, Beverly Pollard, was also attacked in her home by Green about two months after Grisson's attack. Green threatened her with a gun and stated that this was not the first trailer he had broken into. He forced her to remove her clothing and then placed his mouth on her vagina and also inserted his penis into her. After a struggle for Green's gun, Green ran out of the trailer. When the police arrived, Pollard, who recognized Green because they lived in the same trailer park, gave a description of him to the officers who subsequently located Green and took him into custody.

Detective Sheree Tovey testified that Pollard identified Green as her rapist and told her that Green had admitted that he had been in other trailers in the park. Tovey then executed an affidavit to obtain a search warrant for Green's bodily fluids. In her affidavit, Detective Tovey attested that Pollard had been "forced to engage in vaginal intercourse with James L. Green" and also that "[a]s a result of this intercourse, a deposit of semen was collected from the body of Beverly Pollard." The affidavit further provided that "Deponent believes that the blood of James L. Green can be proven to have the unique DNA make up of that in the semen collected from the body of Beverly Pollard." Tovey's two statements in her affidavit that semen was collected from Pollard were incorrect. The lab report on Pollard's rape kit, dated one month after the search warrant for Green's...