Magwood, In re

• Decision Date: 23 May 1997
• Docket Number: No. 97-1141,97-1141
• Citation: 113 F.3d 1544
• Parties: 10 Fla. L. Weekly Fed. C 988 In re: Billy Joe MAGWOOD, Petitioner.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1544

113 F.3d 1544

10 Fla. L. Weekly Fed. C 988

In re: Billy Joe MAGWOOD, Petitioner.

No. 97-1141.

United States Court of Appeals, Eleventh Circuit.

May 23, 1997.

James A. Power, Jr., Marguerite Del Valle, New York City, for Appellant/Petitioner.

Sandra J. Stewart, Alabama Assistant Attorney General, Montgomery, AL, for Appellee/Respondent.

On Application for Leave to File Successive Petition for Writ of Habeas Corpus.

Before TJOFLAT, DUBINA and BLACK, Circuit Judges.

PER CURIAM:

Petitioner Billy Joe Magwood, an Alabama inmate convicted of capital murder and sentenced to death, seeks permission to file a successive habeas corpus petition in the United States District Court for the Middle District of Alabama. We deny the application because Petitioner's claims are barred under 28 U.S.C. § 2244(b)(2).

BACKGROUND

In 1981, Petitioner was convicted of murdering the sheriff of Coffee County, Alabama on March 1, 1979. Upon the jury's recommendation and after a sentencing hearing, the Coffee County Circuit Court sentenced him to death by electrocution. On direct appeal, the state courts upheld both the conviction and sentence, and the facts, evidence, and procedural history of the case are set out in greater detail in those opinions. Magwood v. State, 426 So.2d 918 (Ala.Crim.App.1982) (including the opinion of the Coffee County Circuit Court as Appendix A), aff'd, 426 So.2d 929 (Ala.), cert. denied, 462 U.S. 1124, 103 S.Ct. 3097, 77 L.Ed.2d 1355 (1983). The state courts denied the petition for a writ of error coram nobis. Magwood v. State, 449 So.2d 1267 (Ala.Crim.App.), appeal denied, 453 So.2d 1349 (Ala.1984) (denying motion for out of time appeal).

On July 20, 1983, Petitioner filed an original habeas corpus petition in the United States District Court for the Middle District of Alabama. Magwood v. Smith, 608 F.Supp. 218 (M.D.Ala.1985), aff'd, 791 F.2d 1438 (11th Cir.1986). The district court denied the petition as to eight of Magwood's nine claims, but granted the petition on his claim that the trial court erred in failing to consider two mitigating factors related to his mental state at the time of the offense. ¹ Magwood, 608 F.Supp. at 220-29. We affirmed the district court as to both the grant of the petition on the sentencing ground and the denial of the petition on all other grounds. Magwood v. Smith, 791 F.2d 1438, 1450 (11th Cir.1986).

Following our decision, the Coffee County Circuit Court held a second sentencing hearing, reweighing the aggravating and mitigating factors. The court once again sentenced Petitioner to death, and that decision was affirmed by the state courts. Magwood v. State, 548 So.2d 512, 514-15 (Ala.Crim.App.) (finding no error in the resentencing proceeding that adversely affected Petitioner's rights), aff'd, 548 So.2d 516 (Ala.1988), cert. denied, 493 U.S. 923, 110 S.Ct. 291, 107 L.Ed.2d 271 (1989). On collateral review, the Alabama state courts upheld the resentencing decision. Magwood v. State, 689 So.2d 959 (Ala.Crim.App.1996) (including the resentencing opinion of the Coffee County Circuit Court as Appendix A), cert. denied, No. 1952019 (Ala. Feb. 28, 1997).

DISCUSSION

On April 23, 1997, Petitioner filed the instant Application for Leave to File a Petition for Writ of Habeas Corpus. In his application, Petitioner requests permission to file a successive habeas corpus petition as to his 1981 judgment of conviction. ² Petitioner's application is therefore subject to the amendments to the habeas corpus statutes contained in the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2244(b). See In re Medina, 109 F.3d 1556,

1561-62 (11th Cir.1997). Pursuant to these amendments, this Court may allow the filing of a second or successive petition containing new claims only if we determine that a prima facie showing has been made that the application satisfies the following requirements:

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

(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and

(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, 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. ³

28 U.S.C. § 2244(b)(2). Petitioner does not argue, nor do we find, that his conviction is affected by any new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court. See 28 U.S.C. § 2244(b)(2)(A).

1. New Evidence of Pretrial Statements by Drs. Crook and Cooper

Petitioner contends that the State violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by withholding the pretrial statements of Drs. Crook and Cooper, each of whom testified at the sanity hearing held three months after Petitioner's arrest. He claims that the State omitted from the record all reference to the transcript of this proceeding. The record reveals, however, that Petitioner and one of his trial attorneys were present at the sanity hearing. In fact, his attorneys requested the inquiry into his mental competence. Petitioner and his attorneys therefore had personal knowledge of the proceeding, and that knowledge is imputed to his later attorneys. Felker v. Thomas, 52 F.3d 907, 910 (11th Cir.), opinion supplemented on denial of reh'g, 62 F.3d 342 (11th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 956, 133 L.Ed.2d 879 (1996). As a result, Petitioner cannot demonstrate that the pretrial statements were previously unavailable through the exercise of due diligence, as required by § 2244(b)(2)(B)(i).

In addition, Petitioner's present attorneys acquired a transcript of this proceeding pursuant to a court order during the state coram nobis proceedings following his first federal habeas case. It is undisputed that the record contains: (1) an order indicating that a sanity hearing was to be held on June 19, 1979; (2) a notation that Dr. Crook and Dr. Cooper would be called as witnesses at that hearing; and (3) an indication that the hearing took place as scheduled. Petitioner has therefore failed to show that the factual predicate for this claim could not have been discovered previously though the exercise of due diligence as required by § 2244(b)(2)(B)(i), and we deny the application as to this claim. See Felker v. Turpin, 101 F.3d 657, 662 (11th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 451, 136 L.Ed.2d 346 (1996) (holding that where the petitioner fails to satisfy the first prong of § 2244(b)(2)(B), we need not consider the second prong of that provision but may do so for the sake of completeness).

Even if Petitioner were able to show that he could not have discovered these statements through the exercise of due diligence prior to the filing of his original petition, his claim would still fail because the facts alleged do not state a constitutional error as required by § 2244(b)(2)(B)(ii). Petitioner has alleged a violation of Brady v. Maryland, under which a successful claimant must show that: (1) the prosecution suppressed evidence; (2) the evidence suppressed was favorable to the defense or exculpatory; and (3) the evidence suppressed was material. Felker, 52 F.3d at 910; see also Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97. Petitioner does not make out a Brady claim because he cannot show that the State suppressed pretrial statements made in his presence and that of his attorneys. See Petitioner argues that at the pretrial sanity hearing, Drs. Crook and Cooper disclaimed their competence to determine his sanity on the day of the offense, rendering their trial testimony inadmissable under Alabama law. The record reveals, however, that the doctors' pretrial testimony was substantially identical to their trial testimony. Consequently, even if Petitioner could show a Brady violation, he cannot establish by clear and convincing evidence that, absent such a constitutional error, the trial testimony would have been inadmissable. Petitioner has not shown that the admission of the allegedly suppressed pretrial statements would have prevented a reasonable factfinder from convicting him of the underlying offense. See 28 U.S.C. § 2244(b)(2)(B)(ii).

                Felker, 52 F.3d at 910.   He therefore fails to show a constitutional error as required under § 2244(b)(2)(B)(ii)
                

2. New Evidence of Prison and Parole Records Indicating that the State Believed Petitioner was Insane Prior to the Offense

Petitioner alleges that the State withheld documents maintained by the Alabama Board of Pardons and Paroles reflecting the opinions of State officials that Petitioner was insane. ⁴ The documents allegedly surfaced in 1992 after Petitioner's current attorneys served a 1991 discovery order on the Alabama Board of Pardons and Paroles. Petitioner offers no explanation, however, for why these same procedures could not have been employed to secure the documents prior to the filing of his first federal habeas petition. Consequently, Petitioner has not shown that the factual predicate for this claim was previously unavailable through the exercise of due diligence as required under § 2244(b)(2)(B)(i), and we deny the application as to this claim. See Felker, 101 F.3d at 662.

Even if Petitioner were able to show that prior attorneys could not have found these documents through the exercise of due diligence, he cannot show that the failure to find these documents stemmed from some constitutional error. See 28 U.S.C. § 2244(b)(2)(B)(ii). The State did not suppress the documents, which could have been requested by either party at any time. Specifically, regarding the probation revocation hearing, the State could not have suppressed the fact that the hearing occurred or the...