Martinez High v. Turpin
| Decision Date | 24 July 1998 |
| Docket Number | No. CV 196-067.,CV 196-067. |
| Citation | 14 F.Supp.2d 1358 |
| Parties | Jose MARTINEZ HIGH, Petitioner, v. Tony TURPIN, Warden, Georgia Diagnostic and Classification Center, Respondent. |
| Court | U.S. District Court — Southern District of Georgia |
Jose Martinez High, Georgia Diagnostic & Classification Center, Jackson, GA, Michael C. Garrett, Garrett & Gilliard, Augusta, GA, Mark Evan Olive, Tallahassee, FL, for petitioner.
Mary Beth Westmoreland, Atlanta, GA, for respondent.
Jose Martinez High petitions this Court for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his conviction and death sentence on numerous grounds. After careful consideration of the Petition and the other materials submitted by the parties, High's Petition is DENIED for the reasons set forth below.
Jose High was convicted and sentenced to death in 1978 in the Superior Court of Taliaferro County, Georgia, for the crimes of murder, armed robbery, and kidnapping with bodily injury.1 The facts of the case have been summarized as follows:
Jose High and his accomplices, Nathan Brown and Judson Ruffin, robbed a service station in [Crawfordville, Georgia] on July 26, 1976. The station operator (Henry Lee Phillips) and his eleven-year-old stepson (Bonnie Bullock)2 were abducted during the course of the robbery. Phillips was placed in the trunk of Ruffin's car; Bonnie Bullock was placed in the back seat. High and his accomplices drove the two to a remote site where they were to be eliminated. The eleven-year old was taunted by High 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. The victims were then shot by the three defendants. Bonnie Bullock died of a bullet wound to the head. Phillips suffered a gun shot wound to the head and wrist. Having been left for dead, Phillips miraculously survived and later identified High, Ruffin, and Brown. High later confessed to the murder.
High v. Kemp, 819 F.2d 988, 990 (11th Cir. 1987) (footnote added). The Supreme Court of Georgia affirmed High's convictions on direct appeal, but vacated his death sentences for armed robbery and for the one count of kidnapping in which the victim did not die. High v. State, 247 Ga. 289, 297, 276 S.E.2d 5 (1981). 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. 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, High v. Zant, 250 Ga. 693, 300 S.E.2d 654 (1983), and denied High's request for rehearing. The United States Supreme Court again denied his petition for a writ of certiorari and his petition for rehearing. 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 filed a habeas corpus petition in this Court, alleging twenty-five errors of constitutional dimension in his trial and sentencing. High v. Kemp, 623 F.Supp. 316, 318-19 (S.D.Ga.1985).3 I carefully considered each of these claims and concluded that all but one were without merit: I reluctantly decided that High's death sentence had to be set aside because of inadequate jury instructions on the nature and function of mitigating circumstances. Id. at 327-28. On appeal, however, the Eleventh Circuit reversed the grant of the writ on these grounds and affirmed the denial of High's other claims for relief. High v. Kemp, 819 F.2d at 991. The Court of Appeals later denied High's request for rehearing en banc. High v. Kemp, 828 F.2d 775 (1987). The United States Supreme Court initially granted High's petition for a writ of certiorari, 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. High v. Zant, 492 U.S. 926, 109 S.Ct. 3264, 106 L.Ed.2d 609 (1989).
High next filed in this Court a motion for relief from judgment under Rule 60(b)(6) of the Federal Rules of Civil Procedure, which I denied. The Eleventh Circuit affirmed this decision, High v. Zant, 916 F.2d 1507, 1510 (11th Cir.1990), and 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. 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).
On May 21, 1991 — the day after his petition for rehearing was denied by the Supreme Court — High filed his second state habeas petition in the Superior Court of Butts County. That court held an evidentiary hearing in September 1991 limited to the issues surrounding a filmed interview of High which had recently surfaced.4 However, the court dismissed High's entire petition on March 8, 1994, concluding in a three-page opinion 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. § 9-14-51.5 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. 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 the instant Petition in this Court, setting forth twelve enumerated claims in support of his request for habeas relief:
1. The state failed to disclose exculpatory information requested by High.
2. High was convicted and sentenced to death on the basis of false and inaccurate information knowingly presented to the jury.
3. High cannot be executed because he is actually innocent and because he had no intent to kill.
4. The state's chief witness against High lied with respect to certain critical issues at trial.
5. High's pretrial counsel had a conflict of interest.
6. The emotionally and racially charged atmosphere surrounding High's trial denied him a fair trial.
7. High was denied his right to the independent and competent assistance of mental health experts.
8. The prosecutor impermissibly invoked God, religion, and the Bible as a justification for convicting High and for sentencing him to death.
9. The jurors improperly participated in a prayer session with a bailiff.
10. The trial court gave inadequate jury instructions regarding the meaning and function of mitigating circumstances.
11. Georgia's aggravating circumstances statute has been applied unconstitutionally in High's case.
12. The trial court failed to instruct the jury on an essential element of conspiracy.
High filed this Petition one day prior to the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), and therefore this case is governed by pre-AEDPA law.6 See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2061, 138 L.Ed.2d 481 (1997). Before addressing the merits of High's claims, however, the Court first must determine whether he is barred from raising them in this second7 federal Petition. See Sawyer v. Whitley, 505 U.S. 333, 338-39, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992); Macklin v. Singletary, 24 F.3d 1307, 1310 (11th Cir.1994).
Under Rule 9(b) of the Rules Governing Section 2254 Cases,
[a] second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ.
When the government pleads abuse of the writ in response to a petitioner's second or successive habeas petition, the petitioner bears the burden of showing that his previously unasserted claims are not an abuse of the writ. McCleskey v. Zant, 499 U.S. 467, 494, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991).8 The petitioner's failure to raise the claim in an earlier petition will be excused if he can "show cause for failing to raise it and prejudice therefrom." Id. In order to show cause, the petitioner must "show that `some objective factor external to the defense impeded counsel's efforts' to raise the claim" in the earlier petition. Id. at 493 (quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)). Examples of such objective, external factors include "a showing that the factual or legal basis for a claim was not reasonably available to counsel," or that interference by officials made it impracticable to raise the claim previously. Carrier, 477 U.S. at 488, 106 S.Ct. 2639.
Once the petitioner has established cause, he must show that the errors of which he complains resulted in actual prejudice. Id. at 494, 106 S.Ct. 2639. This requires the petitioner to show "not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). Put another way, the petitioner must show ...
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High v. Head
...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, On appeal, High asserts claim......