Jones v. GDCP Warden

• Decision Date: 28 January 2016
• Docket Number: No. 11–14774–P.,11–14774–P.
• Citation: 815 F.3d 689
• Parties: Brandon Astor JONES, Petitioner–Appellant, v. GDCP WARDEN, Respondent–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

815 F.3d 689

Brandon Astor JONES, Petitioner–Appellant,
v.
GDCP WARDEN, Respondent–Appellee.

No. 11–14774–P.

United States Court of Appeals, Eleventh Circuit.

Jan. 28, 2016.

815 F.3d 692

Gerald Wesley King, Jr., Susan Jill Benton, Federal Defender Program, Inc., Atlanta, GA, Joshua T. Buchman, Rory K. Little, McDermott Will & Emery, LLP, Chicago, IL, for Petitioner–Appellant.

Beth Attaway Burton, Sabrina Graham, Attorney General's Office, Atlanta, GA, for Respondent–Appellee.

Before MARCUS, WILSON and WILLIAM PRYOR, Circuit Judges.

MARCUS, Circuit Judge:

Over thirty-six years after he robbed and murdered Roger Tackett, petitioner Brandon Jones is scheduled to be executed by the Georgia Department of Corrections on February 2, 2016. On January 21, 2016, he moved this Court to recall its 2014 mandate denying his petition for habeas corpus relief and to reconsider his original habeas petition after the full Court issues an en banc decision in a different, although currently pending case, Wilson v. Warden, Georgia Diagnostic Prison. Jones has also filed a motion with this Court to stay his execution pending reevaluation of his original habeas petition in light of the forthcoming Wilson decision. The state opposes both motions.

After carefully reviewing the record before us and the party's submissions, we conclude that we are foreclosed by the Antiterrorism and Effective Death Penalty Act and Supreme Court precedent from recalling the mandate denying habeas relief. Furthermore, even if we were not foreclosed and examined the merits of his motion, we would still deny it because, regardless of how Wilson is decided, Jones's claim is without merit. Finally, even if we could recall the mandate, our respect for the State of Georgia's interest in the finality of its criminal judgments would strongly counsel against doing so. We also deny Jones's motion to stay his execution because, regardless of how Wilson is decided, Jones has not shown a substantial likelihood that he will prevail on the merits of his underlying claim.

I.

A.

Jones was originally convicted and sentenced to death by the Superior Court of Cobb County in 1979 for the robbery and murder of Roger Tackett, a convenience store manager. As the state court detailed, Jones and his co-defendant, Van Roosevelt Solomon, were found at the scene of the murder by a police officer. Jones v. State, 249 Ga. 605, 293 S.E.2d 708, 709–10 (1982) ("Jones I "). The officer approached the convenience store after hours, saw Jones stick his head out of the storeroom door before closing it again, and then heard three gunshots, a pause, and one more shot. Id. The officer found Solomon and Jones in the storeroom, where he

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later discovered Mr. Tackett's body and two .38 caliber revolvers. Id. at 710. The medical examiner who performed Mr. Tackett's autopsy testified at trial that Mr. Tackett had been shot twice in the hip area, once in the jaw, once in the thumb, and once behind the left ear. Id. Jones and Solomon underwent neutron activation tests and both were found to have recently fired guns. Id. at 710–11.

The Georgia Supreme Court affirmed Jones's conviction and death sentence in 1982. Id. at 715. Jones filed a state habeas corpus petition, which the Superior Court of Butts County denied in 1982; the Georgia Supreme Court affirmed that denial in 1984. Jones v. Francis, 252 Ga. 60, 312 S.E.2d 300, 306 (1984). The United States Supreme Court denied Jones's petition for a writ of certiorari. Jones v. Francis, 469 U.S. 873, 105 S.Ct. 228, 83 L.Ed.2d 157 (1984). Jones then petitioned for habeas relief in federal district court, and a district court judge in the Northern District of Georgia granted the petition in part and ordered a new sentencing proceeding because the state trial court had improperly allowed the jury to bring a Bible into the deliberation room. See Jones v. Kemp, 706 F.Supp. 1534, 1560 (N.D.Ga.1989).

In 1997, the Superior Court of Cobb County sentenced Jones to death a second time. See Jones v. State, 273 Ga. 231, 539 S.E.2d 154, 157 (2000) ( "Jones II "), reh'g den. Dec. 14, 2000, cert. den. 534 U.S. 839, 122 S.Ct. 94, 151 L.Ed.2d 54 (2001). The Georgia Supreme Court again affirmed Mr. Jones's death sentence. Id. Jones filed a pro se petition for a writ of habeas corpus in Butts County Superior Court, which was later amended by counsel. The superior court denied all claims for relief. Jones v. Terry, Case No.2002–V–79 (unpublished order of March 17, 2006). The Georgia Supreme Court summarily denied his Application for Certificate of Probable Cause to Appeal on September 3, 2008. Jones v. Terry, No. S06E1736 (Ga. September 3, 2008).

On May 8, 2009, he commenced federal habeas corpus review pursuant to 28 U.S.C. § 2254, raising eleven grounds for relief. On August 10, 2011, the district court in the Northern District of Georgia denied his petition in its entirety in an unpublished order, but granted Jones a certificate of appealability on two claims: (1) that Jones's trial counsel provided ineffective assistance of counsel in violation of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), by failing to investigate certain sources of potential mitigation evidence, and (2) that the prosecution's comments made during closing argument at Jones's sentencing violated his privilege against self-incrimination. See Order, Jones v. Half, No. 09–cv–01228–CAP (N.D. Ga. August 10, 2011) (Docket No. 45).

On March 20, 2014, our Court affirmed the district court's denial of relief on both of those claims. See March 20, 2014 Opinion (appended hereto as Attachment A). In that decision, we reviewed "the Superior Court's denial of habeas relief" as the final state-court determination of Jones's claim, "[s]ince the Georgia Supreme Court declined to review the merits of the case." See id. at 21 n. 4. On April 24, 2014, we withdrew our March opinion and issued an amended decision, again affirming the district court. Jones v. GDCP Warden, 753 F.3d 1171 (11th Cir.2014) ("Jones III "). In the amended decision, however, we recognized that "[t]he Georgia Supreme Court's denial of the application for a certificate of probable cause to appeal was the final state-court determination" of Jones's claim. Id. at 1182. Jones filed a petition for rehearing en banc, which our Court denied on December 1, 2014. Our mandate

815 F.3d 694

issued on December 10, 2014. Jones then petitioned the Supreme Court of the United States for a writ of certiorari, which was denied on October 5, 2015. Jones v. Chatman, ––– U.S. ––––, 136 S.Ct. 43, 193 L.Ed.2d 27 (2015). And on November 30, 2015, the Supreme Court denied his Petition for Rehearing from the denial of certiorari. Jones v. Chatman, –––U.S. ––––, 136 S.Ct. 570, 193 L.Ed.2d 452 (2015).

Soon thereafter, on December 22, 2015, Jones filed a complaint pursuant to 42 U.S.C. § 1983 in the United States District Court for the Northern District of Georgia, challenging the constitutionality of Georgia's method of execution. On January 13, 2016, pursuant to the state's motion, the Cobb County Superior Court issued an order authorizing an execution window for Jones, and the Georgia Department of Corrections scheduled his execution for February 2,2016 at 7:00 p.m. EST.

The district court dismissed Jones's civil rights complaint on January 21, 2016. It first held that Jones's challenge to Georgia's method of execution is time-barred, since the statute of limitations on his claim ran on October 4, 2003, and there was no "significant change" to the lethal injection protocol that would reset the time clock. The district court also rejected his challenge on the merits. Based on binding prior precedent from this Court, the district court held that Jones had failed to state a claim under either the Eighth Amendment or the Due Process Clause of the Fourteenth Amendment. See Terrell v. Bryson, 807 F.3d 1276 (11th Cir.2015) ; Gissendaner v. Comm'r. Ga. Dep't of Corr., 803 F.3d 565 (11th Cir.2015) ; Gissendaner v. Comm'n Ga. Dep't of Corr., 779 F.3d 1275, 1283 (11th Cir.2015) ; Wellons v. Comm'r, Ga. Dep't of Corr., 754 F.3d 1260, 1267 (11th Cir.2014). On January 25, 2016, Jones appealed from the decision of the district court dismissing his § 1983 complaint.¹

B.

After we had issued our decision affirming the denial of Jones's habeas petition (Jones III ), another panel of this Court decided Wilson v. Warden, Georgia Diagnostic Prison, 774 F.3d 671 (2014). In that case, the Wilson panel relied on our amended decision in Jones III to observe that "the one-line decision of the Supreme Court of Georgia denying Wilson's certificate of probable cause is the relevant state-court decision for our review because it is the final decision ‘on the merits.’ " Id. at 678. On July 30, 2015, our Court granted rehearing en banc in Wilson, vacated the panel opinion, and directed the parties to address en banc:

[Whether] a federal habeas court [is] required to look through a state appellate court's summary decision that is an adjudication on the merits to the reasoning in a lower court decision when deciding whether the state appellate court's decision is entitled to deference under 28 U.S.C. § 2254(d) [.]

Oral argument was held by our Court en banc on...