Greene v. Upton

• Decision Date: 28 June 2011
• Docket Number: No. 09–15723.,09–15723.
• Parties: Daniel GREENE, Petitioner–Appellant,v.Steven UPTON, Warden Georgia Diagnostic Prison, Respondent–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

644 F.3d 1145

22 Fla. L. Weekly Fed. C 2221

Daniel GREENE, Petitioner–Appellant,

v.Steven UPTON, Warden Georgia Diagnostic Prison, Respondent–Appellee.

No. 09–15723.

United States Court of Appeals, Eleventh Circuit.

June 28, 2011.

Stephanie Kearns (Court–Appointed), Jeffrey Lyn Ertel (Court–Appointed), Fed. Def. Program, Inc., Atlanta, GA, Robert L. McGlasson, II (Court–Appointed), Decatur, GA, for Petitioner–Appellant.Sabrina G. Graham, Atlanta, GA, for Respondent–Appellee.Appeal from the United States District Court for the Northern District of Georgia.Before TJOFLAT, PRYOR and BLACK, Circuit Judges.PRYOR, Circuit Judge:

Daniel Greene, a Georgia prisoner sentenced to death, raises two main issues about the denial of his petition for a writ of habeas corpus. First, Greene contends that the prosecution exercised peremptory challenges against six black members of the jury venire on the basis of race in violation of the Fourteenth Amendment, see Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and that the determination of the Supreme Court of Georgia with respect to this claim was contrary to, or an unreasonable application of, clearly established federal law, or an unreasonable determination of the facts. Second, Greene contends that several arguments by the prosecutor amounted to misconduct that deprived him of a fair trial, and that the decision of the Supreme Court of Georgia on that issue was contrary to, or an unreasonable application of, clearly established federal law, or an unreasonable determination of the facts. After a careful review of the record, we conclude that Greene's contentions lack merit. We conclude further that three remaining claims raised by Greene also fail. We affirm.

I. BACKGROUND

On September 27, 1991, Daniel Greene committed a spree of murder and mayhem that covered three counties of rural Georgia. Greene first made several visits to the Suwanee Swifty, a convenience store located in Taylor County, Georgia. Greene v. State, 266 Ga. 439, 444–45, 469 S.E.2d 129, 136–37 (1996) [ Greene I]. On his last visit, Greene pulled a knife on the store clerk, Virginia Wise, grabbed her, and forced her to give him $142.55 from the cash register. Id. at 444, 469 S.E.2d at 136. Greene took Wise to a back room in the convenience store where he stabbed her through her lung and liver and cut across three of her fingers. Id. A customer, Bernard Walker, then entered the store and caused the automatic doorbell to ring. Id. Greene left Wise in the back of the store, approached Walker near the front counter, and stabbed Walker in the heart. Id. Greene dropped the knife, left the store, and drove away. Id. Wise survived, but Walker died in the parking lot. Id.

Greene drove to the home of an elderly couple, Willie and Donice Montgomery, in rural Macon County, Georgia. Id. at 444, 469 S.E.2d at 137. Greene knew the couple and had previously worked for them as a farm laborer. Id. Greene burst into their home with another knife in hand and demanded their car keys. Id. Willie gave car keys to Greene, and Greene stabbed both Willie and Donice multiple times each in the head. Id. Willie and Donice survived.

Greene then drove to another convenience store, located in Houston County, Georgia. Id. at 444, 469 S.E.2d at 137. Greene pulled a knife on the store attendant and forced her to hand him money from the cash register. Id. Greene also attempted to stab the attendant in the chest, but she bent down, and Greene stabbed her in the back of her shoulder. Id. Greene drove away in the Montgomerys' car. Id. Authorities later arrested Greene at the home of an acquaintance. Id.

Greene confessed to the crimes in a videotaped interview and stated that he had committed the crimes to obtain money for crack cocaine, but Greene later testified that he had no recollection of committing the crimes or of giving a confession. Id. Greene testified that an acquaintance gave him a cigarette earlier that day that may have been laced with a mind-altering drug. Id. at 444–45, 469 S.E.2d at 137. Greene testified that he could remember only that he experienced a severe headache in the convenience store where Wise worked. Id. at 444, 469 S.E.2d at 137.

This appeal concerns the crimes that Greene committed in Taylor County. Greene was convicted in a separate trial for the crimes he committed in Macon and Houston counties. Id. No issues about that trial are before us.

A grand jury indicted Greene for the crimes of malice murder, armed robbery, and aggravated assault. Following a change of venue from Taylor County to Clayton County, Georgia, Greene's jury trial lasted from November 30 through December 9, 1992.

The prosecutors exercised peremptory challenges against ten members of the jury venire, six of whom were black. In response to Greene's objections about the peremptory challenges against the six black members of the jury venire, the prosecutors offered race-neutral reasons for each contested challenge. According to the prosecutors, Reginald Lemmons “was very hesitate [sic] on his answers to the death penalty questions,” expressed a view that “cocaine makes you do stuff you wouldn't otherwise do,” had sympathy for a cousin with a cocaine problem, and “there was significant body language, contact, smiling, and nodding and so forth, and how you doing between [Greene] and [Lemmons].” Darius Duffie failed to disclose on his juror questionnaire that he had been convicted of a criminal offense. Irene Walton failed to follow the instructions of the trial court to return to court and thought she had to come to court only if she felt up to it, and the prosecutors suggested that Walton's failure to follow instructions might relate to kidney problems that she had discussed. Angela Pope was a single mother, was hesitant about the death penalty, and stated that she had a family member accused of a crime. Stanley Milligan expressed conscientious opposition to the death penalty and stated that he was from a tough neighborhood. Kimberly Sullivan, a single mother of two children, was concerned about child care and expressed opposition to capital punishment, and the prosecutors had already attempted to challenge her for cause based on her opposition to capital punishment.

The trial court considered Greene's objections and the prosecutors' proffered reasons for challenging each of these members of the jury venire and determined that the prosecutors had provided reasons for each challenge that were racially neutral. The trial court also excused five members of the jury venire for cause based on their opposition to the death penalty, see Greene I, 266 Ga. at 440, 469 S.E.2d at 134, and denied a motion by Greene to disqualify a member of the jury venire based on her purported bias in favor of the death penalty, see id. at 442, 469 S.E.2d at 135.

The prosecution made several statements during the closing arguments of the guilt phase of the trial that are pertinent to Greene's argument about prosecutorial misconduct. The prosecutor referred to an emotional outburst by the decedent victim's mother that had occurred earlier in the proceedings. He stated, “[the decedent victim's] poor mother sat here through this whole thing and that's the one time she lost it and I apologize for that. I think she's been here and watched with the dignity of any citizen, any mother [ ] ....” Greene objected and moved for a mistrial, and the trial court denied the motion for a mistrial and gave a curative instruction: “Ladies and Gentlemen of the Jury, put that incident out of your mind. Mr. Pullen [the prosecutor], don't go into that any further.” The prosecutor also asked the jurors to place themselves in Wise's position, stating, “Can you imagine the terror in [Wise's] mind? What is she going to do? Look at him. What would you do? Or you, or you, or any of you? Look at him. And he's got a knife.” Greene did not object to those statements. The prosecutor also referred to the sentencing phase of the trial to explain an argument of defense counsel:

Now, I want you to go back. You heard a theory from this lawyer over here that poor old Dan was just trying to leave and somehow or other Bernard ran into the knife. I want you to sit back and I want you to think of where else you've heard that other than right here from the lawyer. Where did it come from? Why are we doing this fussing anyway? He said go ahead, in essence, go ahead and convict him of aggravated assault, go ahead and convict him of armed robbery. Why are we fussing about this part of it? Because this is the case that gets us to the next phase of the trial.

Greene objected, and the trial court sustained the objection, concluding, “I don't believe that's appropriate because at this phase of the trial we are dealing only with the guilt or innocence. So don't go into the next phase of the trial.” The prosecutor continued: “Let me just say this. The only crime that's charged that carries the death penalty is murder.” Greene again objected, and the trial court sustained the objection and stated, “Punishment, punishment is not a part of this portion of the trial, Mr. Pullen.” Later, in its instructions to the jurors, the trial court again explained that the jurors were only to consider whether Greene was guilty or innocent during that portion of the trial: “Now, ladies and gentlemen, you are only concerned with the guilt or innocence of the Defendant. You are not to concern yourselves with punishment. So do not discuss punishment. You are only to consider and concern yourselves with the guilt or innocence of this Defendant.”

The prosecutor made other comments during the sentencing phase of the trial that are also pertinent to Greene's argument about prosecutorial misconduct. The prosecutor asked Greene's sister, a witness for the defense, “[i]f [Greene] for some way got out and did the same thing ... you'd still be arguing for his life, wouldn't you?” Greene objected and moved for...