Parker v. Turpin

Decision Date13 August 1999
Docket NumberNo. Civ.A.1:96-CV-3142-RWS.,Civ.A.1:96-CV-3142-RWS.
Citation60 F.Supp.2d 1332
PartiesByron Ashley PARKER, Petitioner, v. Tony TURPIN, Warden, Georgia Diagnostic and Classification Prison, Respondent.
CourtU.S. District Court — Northern District of Georgia

Carmie LeeAnn McCurry, Troutman Sanders Law Firm, Atlanta, GA, Carter G. Phillips, PHV, Vincent F. Prada, PHV, Sidley & Austin, Washington, DC, for petitioner.

Paula K. Smith, Mary Beth Westmoreland, Office of State Attorney General, Atlanta, GA, for respondent.

MEMORANDUM OPINION AND ORDER

STORY, District Judge.

This death penalty case is before the Court on a petition for writ of habeas corpus. The Court has jurisdiction pursuant to 28 U.S.C. §§ 2241 and 2254.

I. PROCEDURAL HISTORY

On November 8, 1984, Petitioner was convicted of first-degree murder and rape in the Superior Court of Douglas County, Georgia. On the following day, Petitioner was sentenced to life imprisonment for rape and death for murder. Subsequently, Petitioner appealed his conviction and sentence and Petitioner's rape conviction was overturned; however, the remaining conviction and sentence were affirmed. See Parker v. State, 256 Ga. 543, 350 S.E.2d 570 (1986).

On July 24, 1987, Petitioner filed a petition for writ of habeas corpus in the Superior Court of Butts County Georgia and a motion for stay of execution. That court granted a stay. On May 2, 1995 the Superior Court of Butts County denied the petition for writ of habeas corpus. Petitioner requested a certificate of probable cause to appeal the denial; however this request was also denied. On August 22, 1996, Petitioner filed a petition for writ of certiorari to the United States Supreme Court. That petition was denied December 16, 1996. See Parker v. Zant, 519 U.S. 1043, 117 S.Ct. 613, 136 L.Ed.2d 538 (1996). This case is before the Court on Petitioner's request for federal habeas relief. The parties waived any right to an evidentiary hearing and consented to the Court's review on the record and briefs.

II. FACTUAL BACKGROUND

On June 6, 1984, agents of the Georgia Bureau of Investigations and the Federal Bureau of Investigations visited Petitioner's trailer home to obtain Petitioner's consent to search his home and automobile and question him regarding the disappearance of an eleven-year-old girl who lived in Petitioner's trailer park and had been missing since June 1, 1984. Petitioner signed the consent forms. Petitioner's car was towed and upon completion of the search of Petitioner's home, Petitioner and his wife were asked to come to the Sheriff's Department for further questioning. Both agreed and Petitioner maintained his innocence.

On June 7, 1984, the authorities obtained arrest warrants for Petitioner for possession of marijuana and failure to report. Later that day, Petitioner was arrested at his place of employment. The authorities wanted Petitioner to take a polygraph test at the FBI offices. Petitioner's attorney instructed him that he was not required to take the test. Petitioner took the polygraph test in the absence of his attorney. Petitioner was then returned to the jail at which time Petitioner unsuccessfully attempted to contact his counsel. Petitioner then talked to investigators again. During this time, the authorities attempted to contact Petitioner's counsel. During the early morning hours of the following day, Petitioner told authorities he had killed the missing child and drew a map identifying the location of the body. Petitioner's original counsel withdrew immediately thereafter, temporary counsel was appointed and later permanent counsel.

On July 17, 1984, Petitioner was indicted for murder, rape and kidnapping. At the preliminary hearing on July 25, 1984, Petitioner pleaded not guilty to the charges of murder and rape. A nolle prosequi was later entered on the kidnapping charge. Petitioner filed a motion to suppress his prior inculpatory statement, and the motion was denied.

At the guilt and innocence phase of the trial, defense counsel offered no evidence. The jury convicted Petitioner on both charges. During the sentencing phase, defense counsel offered the expert testimony of a psychiatrist who never met or interviewed Petitioner but who had evaluated Petitioner based on a written multiple-choice examination.

The jury found three aggravating circumstances: (1) that the murder of the victim was outrageously and wantonly vile, horrible and inhuman in that it involved torture to the victim, depravity of mind and aggravated battery to the victim; (2) that the murder of the victim was committed while the defendant was engaged in the commission of the capital felony of kidnapping with bodily injury; and (3) that the murder was committed during the commission of another capital felony: rape. The jury found that Petitioner should be sentenced to death.

On direct appeal, Petitioner's rape conviction was set aside for the failure of the trial court to instruct the jury on the charge of child molestation as a lesser included offense of rape. The aggravating circumstance associated with the commission of rape was also set aside. Petitioner's murder conviction and sentence were affirmed.

Petitioner filed a state habeas petition which was denied. Petitioner now argues he was convicted and sentenced in violation of his Fifth, Sixth, Eight, and Fourteenth Amendment rights.

III. LEGAL ANALYSIS
A. Standard of Review1

Under 28 U.S.C. § 2254(d),

An application for a writ of habeas corpus shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

Generally, "Section 2254 forbids federal courts from granting habeas relief for claims previously adjudicated by state courts, unless the state court adjudication was contrary to or represented an unreasonable application of `clearly established Federal law, as determined by the Supreme Court of the United States.' Thus the first step in resolving a petitioner's claim is to determine the `clearly established' law at the relevant time." Neelley v. Nagle, 138 F.3d 917, 922 (11th Cir.1998), cert. denied, ___ U.S. ___, 119 S.Ct. 811, 142 L.Ed.2d 671 (1999). The district court determines the clearly established law at the relevant time by surveying the legal landscape to ascertain the federal law applicable to the petitioner's claim that is clearly established by the Supreme Court at the time of the state court's adjudication. Id. at 924. A rule is clearly established and not "`new' if a state court considering a habeas petitioner's claim would have felt `compelled by existing precedent' to conclude that the rule the petitioner seeks was required by the Constitution."2 (citations omitted) Id. at 923.

The second step in the analysis is to "determine whether the state court adjudication was contrary to the clearly established Supreme Court case law, either because the state court failed to apply the proper Supreme Court precedent, or because the state court reached a different conclusion on substantially similar facts." Id. Third, "If the state court's decision is not contrary to law, the reviewing court must then determine whether the state court unreasonably applied the relevant Supreme Court authority." Id. If the state court decision was not contrary to clearly established Supreme Court law, or was based on an unreasonable application of the law or an unreasonable determination of the facts, the state court decision must stand. Id.

In reviewing Petitioner's request for habeas relief, the Court is required to apply a presumption of correctness to determinations of factual issues made by the state court. 28 U.S.C. § 2254(e)(1). Petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). The statutory presumption of correctness applies only to findings of fact made by the state court, not to mixed determinations of law and fact. McBride v. Sharpe, 25 F.3d 962, 971 (11th Cir.1994).

Under the procedural default doctrine, where a state prisoner has defaulted his federal claim in state court by failing to present such claim at trial, on direct appeal or in the state habeas proceeding, federal habeas review of the claim is barred if pursuant to an independent and adequate state procedural rule. However, a procedural default is excused if the prisoner 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, 750, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991). Because a procedural default may be excused if it results from constitutionally ineffective assistance of counsel, the Court will first consider Petitioner's ineffective assistance of counsel claims. See Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986).

B. Sixth Amendment — Ineffective Assistance of Counsel Claims

Petitioner argues federal habeas relief on his claims is not precluded because he has a valid ineffective assistance of counsel claim which constitutes sufficient cause to excuse any possible procedural default.

Petitioner contends he was denied the right to effective assistance of counsel. Counsel repeatedly admitted that Petitioner was guilty of murder although Petitioner had entered a plea of not guilty. Petitioner contends this admission resulted in prejudice to P...

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