Herring v. Berry

• Decision Date: 03 January 2023
• Docket Number: CV 122-074
• Parties: JAMES HERRING, Petitioner, v. WALTER BERRY, Respondent.
• Court: U.S. District Court — Southern District of Georgia

JAMES HERRING, Petitioner, v. WALTER BERRY, Respondent.

No. CV 122-074

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

January 3, 2023

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

BRIAN K EPPS, NITED STATES MAGISTRATE IUDGE

Petitioner an inmate at Baldwin State Prison in Hardwick, Georgia brings the abovecaptioned 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 the motion to disqualify Respondent be DENIED, (doc. no. 10), Petitioner's § 2254 petition be DENIED without an evidentiary hearing, this civil action be CLOSED, and a final judgment be ENTERED in favor of Respondent.

I. BACKGROUND

On March 2, 2017, a jury sitting in the Superior Court of Richmond County, Georgia, found Petitioner guilty of rape, and Petitioner was sentenced to life without parole. (Doc. no. 1 (“Petition”), p. 1.) Petitioner was represented by Pete Theodocion at trial, by Portland Companaro post-conviction, and by Caitlin Angelette on appeal. (Id. at 13; doc. no. 12-6, p. 177.)

After his motion for a new trial was denied, Petitioner filed a direct appeal on the following eight enumerations of error:

(1) The trial court improperly admitted evidence of an incident between K.B. and Petitioner;

(2) The State violated O.C.G.A. § l 7-16-4(a)(1) by introducing evidence of a statement made by Petitioner that was only revealed to Petitioner during trial;

(3) Trial counsel was ineffective for failing to file a motion to suppress the sexual evidence kit and subsequent results as the State failed to establish chain of custody;

(4) Trial counsel was ineffective for failing to adequately investigate the case and call additional witnesses who were present during the time when the alleged crime was committed;

(5) Trial counsel was ineffective for failing to obtain a ruling on counsel's request to refresh the victim's recollection with a report from a nurse who performed the rape kit;

(6) There was insufficient evidence to sustain a conviction of rape;

(7) Post-conviction counsel was ineffective for failing to obtain a subpoena for a witness for the motion for new trial hearing; and

(8) The case should be remanded for a further hearing on Petitioner's claim that trial counsel was ineffective related to a discovery violation.

(Doc. no. 12-9, pp. 877-90.)^[1]The Georgia Court of Appeals affirmed the judgment of conviction on June 29, 2020. (Doc. no. 12-1, Herring v. State, No. A20A0143 (Ga.App. Jun. 29, 2020) (unpublished).)

On November 20, 2020, Petitioner filed a state habeas petition pro se in the Superior Court of Baldwin County and testified at an evidentiary hearing on January 27, 2021. (Doc. nos. 12-2, 12-6.) The state petition raised four grounds:

(1) A “direct violation” of the Fourth Amendment because “Petitioner was detained against his will and deprived of his liberty without probable cause, but only a mere suspicion”;

(2) A “direct violation” of the Fifth and Fourteenth Amendment because the District Attorney did not seek a legal indictment through the grand jury process but instead falsified Petitioner's indictment;

(3) A “direct violation” of the Thirteenth Amendment because Petitioner is being “held to a condition of peonage” and subject to involuntary servitude; and

(4) The state court lacked subject matter and personal jurisdiction.^[2]

(Doc. no. 12-2.) At his evidentiary hearing, Petitioner explained the trial court lacked jurisdiction to convict him because of the grand jury and indictment issues in ground two. (See doc. no. 12-6, p. 7.) On June 8, 2021, the state habeas court denied the petition, finding grounds one, two, and four were procedurally defaulted under O.C.G.A. § 9-14-48(d) and ground three was inappropriate in a habeas action. (See doc. no. 12-3.) The Georgia Supreme Court denied Petitioner's request for a certificate of probable cause to appeal on November 23, 2021, stating simply in a one-sentence order, “Upon consideration of the application for certificate of probable cause to appeal the denial of habeas corpus, it is ordered that it be hereby denied.” (Doc. no. 12-4.)

On June 9, 2022, Petitioner filed the instant federal petition pro se, asserting three grounds for relief:

(1) A “direct violation” of the Fourth Amendment because the primary evidence used against Petitioner was derivative of an illegal arrest and detainment, and thus fruit of the poisonous tree;

(2) A “direct violation” of the Fifth and Fourteenth Amendment because the District Attorney did not seek a legal indictment through the grand jury process but instead falsified Petitioner's indictment; and

(3) Petitioner's Thirteenth Amendment rights are being violated because he is being “held to a condition of peonage.”

(Petition, pp. 5-10.)) Petitioner also requests an evidentiary hearing in his petition. (Id. at 28.) Respondent answered the Petition, arguing Grounds One and Two are procedurally defaulted and Ground Three does not allege a constitutional violation in the criminal conviction being challenged. (See doc. no. 11.) Petitioner filed a response to the Answer, and again asked for an evidentiary hearing on specifically the grand jury proceedings leading to his indictment. (See doc. no. 14.)

Petitioner also filed a “Motion to Disqualify Respondent for Lack of Jurisdiction” which simply argues the merits of his habeas petition which he believes, if granted, would vacate his conviction and strip Respondent of jurisdiction to detain him. (See doc. no. 10.) Petitioner also asks for the production of grand jury records which relate to his claims. However, at the start of his motion, Petitioner also invokes Local Rule 7.6 regarding reply briefs and Federal Rule of Civil Procedure Rule 59(e) regarding motions to alter or amend a judgment while requesting reconsideration of the Court's June 28, 2022 Order directing Respondent to answer the petition. (Id. at 1.) Whatever Petitioner intended this motion to be is totally unclear, so the motion should be DENIED.

II. NO RIGHT TO EVIDENTIARY HEARING

A. Analytical Framework for Considering Hearing Request

When determining whether an evidentiary hearing is warranted, the Court must consider the restrictions of § 2254(e)(2), as amended by the Antiterrorism and Effective Death Penalty Act of 1996, (“AEDPA”):

If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that - -

(A) the claim relies on - -

(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or

(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and

(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

28 U.S.C. § 2254(e)(2). Because this code section applies only when an “applicant has failed to develop the factual basis of a claim,” an evidentiary hearing is prohibited where a petitioner fully developed the factual basis of his claim in state court.

A petitioner who has “failed to develop the basis for a claim” must establish “a factual predicate that could not have been previously discovered through the exercise of diligence.” § 2254(e)(2)(A)(ii). Diligence is a reasonable attempt, in light of the information then available, to investigate and pursue claims in state court. Williams v. Taylor, 529 U.S. 420, 436 (2000). A petitioner is not diligent when he has failed to present evidence despite notice, access to the evidence, and sufficient time to prepare. Pope v. Sec'y Dep't of Corr., 680 F.3d 1271, 1289 (11th Cir. 2012).

Petitioner must also “persuade the [Court] that the proffered evidence would affect the resolution of the claim.” Breedlove v. Moore, 74 F.Supp.2d 1226, 1233 (S.D. Fla. 1999) (citing Bolender v. Singletary, 16 F.3d 1547, 1555 n.9 (11th Cir. 1994)); see also Stephens v. Kemp, 846 F.2d 642, 650-51 (11th Cir. 1988) (same). “[I]f a habeas petition does not allege enough specific facts that, if they were true, would warrant relief, the petitioner is not entitled to an evidentiary hearing.” Chavez v. Sec'y Fla. Dep't of Corr., 647 F.3d 1057, 1060 (11th Cir. 2011).

The Court must also consider § 2254(d), as follows:

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 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.

“‘[R]eview under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits' . . . and therefore ‘evidence introduced in federal court has no bearing on § 2254(d)(1) review.'” Landers v. Warden, 776 F.3d 1288, 1295 (11th Cir. 2015) (quoting Cullen v. Pinholster, 563 U.S. 170, 181, 185 (2011)) (internal citations omitted). The restriction “applies even more clearly to § 2254(d)(2), which contains an explicit textual restriction to evaluate the state court ruling only ‘in light of the evidence presented in the State court proceeding.'” Id. (quoting § 2254(d)(2)).

Furthermore “although § 2254(e)(2) permits federal...