High v. Head

Decision Date19 April 2000
Docket NumberNo. 98-9085,98-9085
Citation209 F.3d 1257
Parties(11th Cir. 2000) Jose Martinez HIGH, Petitioner-Appellant, v. Frederick J. HEAD, Warden, Georgia Diagnostic and Classification Prison, Respondent-Appellee.
CourtU.S. Court of Appeals — Eleventh Circuit

[Copyrighted Material Omitted] Appeal from the United States District Court for the Southern District of Georgia. (No. CV196-67), Dudley H. Bowen, Jr., Judge.

Before ANDERSON, Chief Judge, and EDMONDSON and MARCUS, Circuit Judges.

ANDERSON, Chief Judge:

Jose Martinez High, convicted of murder, armed robbery, and kidnapping with bodily injury in the state courts of Georgia and sentenced to death, appeals the district court's denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254. For the reasons stated below, we affirm.

I. FACTUAL & PROCEDURAL BACKGROUND

The facts of this case were briefly summarized in a previous opinion of this Court as follows:

Jose High and his accomplices, Nathan Brown and Judson Ruffin, robbed a service station. They abducted the operator of the station, Henry Lee Phillips, and his 11-year old stepson, Bonnie Bullock. Phillips was placed in the trunk of the car and Bullock in the back seat. High and his accomplices drove their captives to a remote site where they were to be eliminated. The 11-year old boy was taunted with threats of death as they rode in the back seat of the car. The child begged for his life. Upon reaching a deserted wooded area, the victims were forced to lie face down in front of the car and were then shot. Bonnie Bullock died of a bullet wound to the head. Phillips suffered a gunshot wound to the head and wrist, but miraculously survived and later identified High, Ruffin, and Brown. High later confessed to the murder.

High v. Zant, 916 F.2d 1507, 1508 (11th Cir.1990) (footnote omitted).1

Jose High was convicted in 1978 in the Superior Court of Taliaferro County, Georgia, of the following crimes: murder of Bonnie Bulloch, two counts of kidnapping with bodily injury, armed robbery, aggravated assault, and unlawful possession of a firearm during the commission of a crime. He was then sentenced to death. On direct appeal, the Supreme Court of Georgia reversed his convictions for aggravated assault and unlawful possession of a firearm during the commission of a crime because those crimes were held to have merged into the crimes of kidnapping with bodily injury and armed robbery. See High v. State, 247 Ga. 289, 276 S.E.2d 5 (1981). The court affirmed his remaining convictions and affirmed the sentence of death on the murder count and on the count of kidnapping Bonnie Bulloch, but vacated his death sentences for armed robbery and for the one count of kidnapping in which the victim did not die. See id. High's request for rehearing was denied, and the United States Supreme Court denied his petition for a writ of certiorari as well as his subsequent petition for rehearing. See High v. Georgia, 455 U.S. 927, 102 S.Ct. 1290, 71 L.Ed.2d 470, reh'g denied, 455 U.S. 1038, 102 S.Ct. 1742, 72 L.Ed.2d 156 (1982).

High next filed a state habeas corpus petition in the Superior Court of Butts County, Georgia, which was denied on September 10, 1982. The Supreme Court of Georgia affirmed and denied High's request for rehearing. See High v. Zant, 250 Ga. 693, 300 S.E.2d 654 (1983). The United States Supreme Court again denied his petition for a writ of certiorari and his petition for rehearing. See High v. Kemp, 467 U.S. 1220, 104 S.Ct. 2669, 81 L.Ed.2d 374, reh'g denied, 468 U.S. 1224, 105 S.Ct. 22, 82 L.Ed.2d 917 (1984). High then sought federal habeas corpus relief in the United States District Court for the Southern District of Georgia. The district court concluded that High's death sentence should be set aside due to the jury instructions given at the sentencing phase, while denying the writ with respect to High's other claims for relief. See High v. Kemp, 623 F.Supp. 316 (S.D.Ga.1985). On appeal, this Court reversed the district court's grant of relief and affirmed the denial of High's other claims. See High v. Kemp, 819 F.2d 988 (11th Cir.1987). This Court then denied High's request for rehearing en banc. See High v. Kemp, 828 F.2d 775 (11th Cir.1987). The United States Supreme Court initially granted High's petition for a writ of certiorari, see High v. Zant, 487 U.S. 1233, 108 S.Ct. 2896, 101 L.Ed.2d 930 (1988), but later vacated that decision and denied certiorari. See High v. Zant, 492 U.S. 926, 109 S.Ct. 3264, 106 L.Ed.2d 609 (1989).

High then filed a motion for relief from judgment under Rule 60(b)(6) of the Federal Rules of Civil Procedure in the United States District Court for the Southern District of Georgia, which was denied and that decision affirmed by this Court. See High v. Zant, 916 F.2d 1507 (11th Cir.1990). This Court also denied High's request for rehearing. The United States Supreme Court again denied High's petition for a writ of certiorari and his subsequent petition for rehearing. See High v. Zant, 499 U.S. 954, 111 S.Ct. 1432, 113 L.Ed.2d 483, reh'g denied, 500 U.S. 938, 111 S.Ct. 2069, 114 L.Ed.2d 473 (1991).

High subsequently filed a second state habeas petition in the Superior Court of Butts County. That court held an evidentiary hearing in September of 1991 limited to the issues surrounding a filmed interview of High which had recently surfaced. The court dismissed High's entire petition in March of 1994, concluding that, to the extent High's claims were not already barred by res judicata principles, he reasonably could have raised them in his first habeas petition and therefore they were procedurally defaulted under O.C.G.A. 9-14-51 (1993). The Supreme Court of Georgia denied High's application for a certificate of probable cause to appeal, and the United States Supreme Court once again denied High's petition for a writ of certiorari and his petition for rehearing. See High v. Thomas, 516 U.S. 1051, 116 S.Ct. 718, 133 L.Ed.2d 671, reh'g denied, 516 U.S. 1154, 116 S.Ct. 1036, 134 L.Ed.2d 113 (1996).

On April 23, 1996, High filed a second federal habeas petition in the United States District Court for the Southern District of Georgia. On July 24, 1998, the district court denied his petition, finding that all of his claims were barred under either the successive claim or abuse of the writ doctrines. See High v. Turpin, 14 F.Supp.2d 1358 (S.D.Ga.1998). The district court judge granted a certificate of probable cause allowing this appeal on August 31, 1998.

On appeal, High asserts claims based on the previously missing film, as well as a claim based on his pretrial counsel's conflict of interest.2 All of his claims raised on appeal were claims dismissed by the district court under the abuse of the writ doctrine.

II. STANDARD OF REVIEW

When the government adequately pleads abuse of the writ in response to a petitioner's successive habeas petition,3 the petitioner bears the burden of proving that his previously unasserted claims are not an abuse of the writ. See McCleskey v. Zant, 499 U.S. 467, 494, 111 S.Ct. 1454, 1470, 113 L.Ed.2d 517 (1991). The petitioner's failure to raise a claim earlier will be excused if he can show "cause for failing to raise it and prejudice therefrom...." Id. If the petitioner cannot show cause, his failure to raise the claim in an earlier petition may nonetheless be excused if he can show that "a fundamental miscarriage of justice would result from a failure to entertain the claim." Id. at 494-495, 111 S.Ct. at 1470. Where abuse of the writ has been pleaded as a defense, a district court may not reach the merits of new claims unless a habeas petitioner shows either cause and prejudice or a fundamental miscarriage of justice. See Sawyer v. Whitley, 505 U.S. 333, 338-39, 112 S.Ct. 2514, 2518, 120 L.Ed.2d 269 (1992); Macklin v. Singletary, 24 F.3d 1307, 1309 (11th Cir.1994). We review district court decisions on abuse of the writ issues de novo. See Macklin, 24 F.3d at 1313.4

III. ANALYSIS
A.The Missing Film

Two of petitioner's three claims hinge upon a filmed interview of High that took place on August 29, 1976, two days after his arrest for unrelated crimes in Richmond County, Georgia. The interview was conducted inside the Richmond County jail and although the interview took place in 1976, the film was not produced until 1991. High contends that the state suppressed the exculpatory content of the interview, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and that the law enforcement testimony at trial regarding the interview was at odds in material and exculpatory ways with what actually happened, in violation of Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).

The filmed interview was conducted primarily by J.B. Dykes, an Investigator with the Richmond County Sheriff's Department, and William Anderson, then Sheriff of Richmond County. High did not have access to the film of the interview prior to or during his trial, and the prosecution's witnesses testified that they did not know the film's whereabouts. Former Sheriff Anderson testified at the 1991 state habeas hearing that, after having the film processed, he stored the developed cannisters of film in a footlocker in the trunk of his patrol car. When he left office on December 31, 1976, he turned the car in and took the footlocker home. Anderson claims that he forgot the film was in his footlocker until 1983 or 1984, at which time he was contacted by William Wilcher, a parole officer conducting a routine investigation into High's case. Anderson gave the cannisters to Wilcher who in turn gave them to the Georgia Board of Pardons and Paroles. The film remained in the Parole Board's files until a request was made by High's counsel under the Georgia Open Records Act in 1991. At that point, the film was converted to VHS videocassette format and provided to High and his counsel.

Because High's claims that the state...

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