Ogle v. Johnson

• Decision Date: 29 June 2009
• Docket Number: No. CV 505-011.,CV 505-011.
• Citation: 696 F. Supp.2d 1345
• Parties: Johnny Ray OGLE, Petitioner, v. Curtis JOHNSON, Warden, Respondent.
• Court: U.S. District Court — Southern District of Georgia

696 F. Supp.2d 1345

Johnny Ray OGLE, Petitioner, v. Curtis JOHNSON, Warden, Respondent.

No. CV 505-011.

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

June 29, 2009.

Johnny Ray Ogle, Alamo, GA, pro se.

Jay C. Fisher, Paula K. Smith, Dept. of Law GA Attorney General's Office, Atlanta, GA, for Respondent.

ORDER

LISA GODBEY WOOD, District Judge.

Before the Court is state prisoner Johnny Ray Ogle's federal habeas corpus petition. In 1999, a jury in the Superior Court of Pierce County, Georgia, convicted Ogle of armed robbery. The judge imposed a life sentence. Ogle's conviction was affirmed on direct appeal, and his state habeas petition was denied. Ogle v. State, 256 Ga.App. 26, 567 S.E.2d 700 (2002); State Habeas Order (Dkt. No. 13 Ex. 2). In 2005, Ogle filed the instant federal petition.

BACKGROUND

On Valentine's Day in 1998, a man armed with a silver revolver robbed the Quick Change¹ convenience store in Pierce County, Georgia. H.T. 438, 512. Kenneth Logan pled guilty to the armed robbery, and on May 11, 1999, a Pierce County jury determined that petitioner Johnny Ray Ogle had aided and abetted that robbery. H.T. 438, 577, 586.

The evidence authorized the jury to find that on February 14, 1998, Ogle drove his truck to Logan's home, where he picked Logan up. H.T. 439-40. Ogle and Logan drove around for awhile. Id. They discussed robbing the Quick Change. H.T. 441. They stopped by the store, and Ogle went inside to "scope it out." H.T. 445. He purchased a small item and peeked inside the cash register when the clerk rang up the sale. H.T. 445-46. After Ogle returned to the truck, the men decided to rob the store. H.T. 445. Ogle gave Logan a ski mask, latex gloves, and a revolver, then dropped him off by the front door. H.T. 438, 439, 443-44, 446. Logan went inside with the gun, pointed it at the clerk, and took about $78 from the register. H.T. 396, 448. Logan then called Ogle on a handheld two-way radio, and Ogle picked him up. H.T. 447-48, 452. Ogle and Logan split the money. H.T. 448. After hearing this evidence, the jury convicted Ogle of aiding and abetting an armed robbery. H.T. 577, 586.

The case's procedural path has not been simple. After his trial, Ogle requested and received new appointed counsel, who filed a motion for a new trial. After the trial court rejected the new trial motion, the newly appointed attorney assisted Ogle with his direct appeal. The Georgia Court of Appeals affirmed Ogle's sentence. Thereafter, Ogle filed a pro se state habeas corpus petition. In 2004, the Superior Court of Telfair County, Georgia, denied that petition.

Ogle then presented his habeas claims in federal court. The original petition alleged ineffective assistance of appellate counsel, ineffective assistance of trial counsel, prosecutorial misconduct, and unfair factfinding by the state habeas court. The ineffective assistance of appellate counsel claim had eight subparts. Habeas Pet. (Dkt. No. 1). On November 14, 2005, the Magistrate Judge issued a report and recommendation dismissing all of Ogle's Claims. (Dkt. No. 19). On December 9, 2005, Judge William T. Moore, Jr., of the Southern District of Georgia entered an order adopting the Magistrate Judge's Report and Recommendation and dismissing all of Ogle's claims. Moore Order (Dkt. No. 23); First Rpt. & Rec. (Dkt. No. 19).

By adopting the Report and Recommendation, the District Court's Order dismissed all eight of Ogle's ineffective assistance of appellate counsel sub-claims on the ground that Ogle had not presented them to the state habeas court and had therefore not exhausted his state remedies as required by 28 U.S.C. § 2254(b)(1)(A). First Rpt. & Rec. 6 (Dkt. No. 19). The Order dismissed Ogle's remaining claims on a variety of other grounds.

The Eleventh Circuit granted a certificate of appealability solely on the ineffective assistance of counsel claims. Ogle v. Johnson, 488 F.3d 1364, 1368 (2007). On June 15, 2007, the Eleventh Circuit reversed and remanded Judge Moore's order. Id. at 1371. The Eleventh Circuit disagreed with the District Court's order in two respects. First, contrary to the District Court, the Eleventh Circuit held that only one of Ogle's eight sub-claims regarding the ineffective assistance of appellate counsel was unexhausted. Id. at 1368-70. The other seven were ripe for federal review. Id. Second, the Eleventh Circuit wrote that if, upon remand, the district court concluded that Ogle's petition lacked merit, the district court should deny the petition with prejudice instead of dismissing it. Id. at 1371.

On May 1, 2008, the case was reassigned to the undersigned. (Dkt. No. 38). On September 24, 2008, 2008 WL 6493628, the Magistrate Judge issued a new report and recommendation. Second Rpt. & Rec. (Dkt. No. 39).

DISCUSSION

This Court finds the reasoning of the Report and Recommendation that the Magistrate Judge presented to Judge Moore persuasive as to all of Ogle's claims except as to those claims concerning the ineffective assistance of appellate counsel. See First Rpt. & Rec. (Dkt. No. 19). The Court therefore adopts the reasoning of the Magistrate Judge's report and recommendation to Judge Moore as the opinion of this Court with regard to petitioner's claims of ineffective assistance of trial counsel, prosecutorial misconduct, and unfair factfinding by the state habeas court. See First Rpt. & Rec. (Dkt. No. 19). However, instead of dismissing Ogle's claims of ineffective assistance of trial counsel, prosecutorial misconduct, and unfair factfinding by the state habeas court, this Court DENIES them with prejudice. See Ogle, 488 F.3d at 1371. The Court will address Ogle's claims regarding the effectiveness of his appellate counsel anew.

Ogle specifies eight occasions on which his appellate counsel's performance allegedly dipped below constitutional minimums. According to Ogle, appellate counsel's performance was constitutionally deficient because appellate counsel failed to raise the following issues on direct appeal:

(1) comments during trial by the prosecutor and two witnesses on Ogle's post-arrest silence,

(2) the prosecutor's alleged failure to reveal a plea bargain with Ogle's co-defendant, a witness for the state (3) Ogle's co-defendant's allegedly false statement that he had not struck a deal with the state,

(4) the absence of Ogle or Ogle's counsel at his arraignment,

(5) the injection of the prosecutor's personal opinion in closing argument,

(6) the use of an allegedly falsified affidavit to procure a search warrant,

(7) the Superior Court's refusal to accept Ogle's pro se motion, and

(8) trial counsel's failure to subpoena the receipt for the weapon allegedly used in the robbery.

I. STANDARD OF REVIEW

The standard by which a federal district court reviews a claim for habeas corpus depends on whether the claim has already been presented to a state habeas court and whether the state habeas court addressed the merits of that claim. If a state inmate filing a federal habeas claim has not presented the claim to a state habeas court, then the claim is "unexhausted" and, ordinarily, the federal court should dismiss it so that the petitioner may bring the claim before a state tribunal. Rose v. Lundy, 455 U.S. 509, 510, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). However, if it is clear that a state court, upon being presented with the exhausted claims, would deem them procedurally defaulted, then the federal court should deny the unexhausted claims with prejudice. Kelley v. Sec'y for Dep't of Corr., 377 F.3d 1317, 1351 (11th Cir.2004). Denying the claims with prejudice, as opposed to merely dismissing them, furthers judicial economy by avoiding "needless judicial ping-pong" between state and federal courts. Mize v. Hall, 532 F.3d 1184, 1191 n. 5 (11th Cir. 2008) (citing Ogle, 488 F.3d at 1370).

If the habeas petitioner has presented his claims to a state habeas court, and the state habeas court has addressed those claims on the merits, then the federal habeas court reviews the state court's rulings with substantial deference. Under 28 U.S.C. § 2254(d), a federal court will disturb a state habeas court's decision on the merits only if the petitioner shows that the decision was contrary to, or involved an unreasonable application of, clearly established constitutional law as determined by the United States Supreme Court, or if the decision rested upon an unreasonable factual determination. § 2254(d); Price v. Vincent, 538 U.S. 634, 641, 123 S.Ct. 1848, 155 L.Ed.2d 877 (2003); Jones v. Walker, 540 F.3d 1277, 1288 (11th Cir.2008). A state habeas court's ruling that a claim is procedurally defaulted precludes federal review of that claim unless the petitioner "can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 729-32, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); accord House v. Bell, 547 U.S. 518, 536, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006).

Habeas petitioners have one avenue to non-deferential federal review of their claims: if a petitioner has presented a claim to a state habeas court, but the state court did not address it, then a federal district court will address the claim de novo. Cone v. Bell, ___ U.S. ___, 129 S.Ct. 1769, 1784, 173 L.Ed.2d 701 (2009).

In sum, if a habeas petitioner has not presented his claims to a state habeas court and it is unclear whether a state court would find those claims procedurally defaulted, then a district court should dismiss the claims. Rose, 455 U.S. at 510, 102 S.Ct. 1198. If the petitioner has not presented his claims to a state court, and it is clear that a state court to which those claims were presented would find them procedurally defaulted, then a district court should deny them with prejudice. Kelley, 377 F.3d at 1351. If the state habeas court addressed ...