Prevatte v. French, Civil Action No. 1:02-CV-1709-RWS.

CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
Citation459 F.Supp.2d 1305
Docket NumberCivil Action No. 1:02-CV-1709-RWS.
PartiesTed Anthony PREVATTE, Petitioner, v. James FRENCH, Warden; Thurbert E. Baker, Attorney General, Respondents.
Decision Date27 November 2006
459 F.Supp.2d 1305
Ted Anthony PREVATTE, Petitioner,
James FRENCH, Warden; Thurbert E. Baker, Attorney General, Respondents.
Civil Action No. 1:02-CV-1709-RWS.
United States District Court, N.D. Georgia, Atlanta Division.
November 27, 2006.

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Ty Alper, University of California School of Law, Berkeley, CA, Vanessa Buch, Atlanta, GA, for Petitioner.

Paula K. Smith, Office of State Attorney General, Atlanta, GA, for Respondents.


STORY, District Judge.

This cause is before the Court on Petitioner Ted Anthony Prevatte's Petition for Habeas Corpus filed pursuant to 28 U.S.C. § 2254[1]; Respondent's Answer — Response to the Petition [8-2] and Brief in Support thereof [8-3]; and Petitioner's Memorandum in Support of Petition for Writ of Habeas Corpus and in Opposition to Respondent's Answer — Response [11]. It comes to this Court on consideration of the Report and Recommendation of United States Magistrate Judge Joel M. Feldman [30], and Petitioner's Objections thereto [33]. After considering the entire record, including the oral argument of counsel, the Court enters the following Order.


I. Procedural History

A. Petitioner's Convictions

On March 12, 1974, the grand jury in Gwinnett County, Georgia jointly indicted Petitioner and William Jordan for the March 6, 1974 murder and armed robbery of James Rouse, Jr. (Respondent's Ex. ("R.Ex.") 7 at 755; R. Ex. 8 at 890.) On May 23, 1974, while incarcerated in North Carolina where Petitioner was apprehended, Petitioner filed a pro se demand for speedy trial. The trial court then appointed Mr. E.L. Owens on May 28, 1974 to represent both Petitioner and his co-defendants. On May 31, 1974, Mr. Fred Bishop was appointed to represent Petitioner and to assist Mr. Owens. From June 10, 1974 through June 14, 1974, Petitioner's case was tried individually to a jury. Petitioner was found guilty of malice murder and armed robbery and sentenced to death on both convictions.

On direct appeal, the Georgia Supreme Court consolidated Petitioner's appeal with that of his co-defendant, and summarized the evidence presented at Petitioner's trial as follows:

Appellants were charged in two counts with the March 6, 1974, armed robbery and murder of James Addison Rouse, Jr. At separate trials, both were convicted and sentenced to death on each count.

The victim, Rouse, was an assistant principal of East Atlanta High School. On the day of the murder, Wednesday, March 6, he drove to work in his 1973 blue Toyota station wagon, wearing a wristwatch and carrying a grey briefcase. Though he telephoned his wife at about 8:00 p.m. that evening, he was last seen alive at about 7:30 p.m. at the Holiday Inn Motel located at the Suwanee exit from interstate highway I-85. He was identified by the bar manager of the Inn, who testified that Rouse left the bar near the time appellants entered. Appellants were also identified by the bar manager, who recognized Jordan by his `teased hair' and Prevatte by the mole on his face.

Appellants were arrested together on Thursday afternoon, March 7, by sheriff's deputies in Anson County, North Carolina, after a high speed chase during which appellants fired upon the deputies and threw a sawed-off shotgun from their vehicle. They were driving Rouse's blue Toyota and in the car was Rouse's briefcase, a polaroid camera, two polaroid pictures (one of each appellant holding the sawed-off shotgun and a pistol in front of Rouse's automobile),

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two black bags and other shotgun shells. Jordan was wearing Rouse's watch. Appellants explained the photographs as `just clowning around' and as a `souvenir.'

Rouse's body was discovered on the following Saturday afternoon, March 9, 1974, at a lake in Gwinnett County, Georgia, about one and one-half miles from the Holiday Inn. An autopsy revealed `a close range shotgun wound to the back of the head which completely disintegrated the head,' causing his death at a time approximately between 9:00 and 10:00 p.m., March 6th. A shotgun shell, found 14 feet from the body, was identified as having been fired from the sawed-off shotgun earlier found in the possession of Prevatte and Jordan.

Each testified for the other at his trial, both testifying that they knew nothing of the killing and had merely found Rouse's automobile abandoned in Atlanta, stolen it, and driven to North Carolina where they were apprehended.

Prevatte v. State, 233 Ga. 929, 214 S.E.2d 365, 365-66 (1975). The Georgia Supreme Court affirmed Petitioner's convictions for murder and armed robbery, but reversed his death sentence based upon certain prejudicial statements made by the prosecution during the sentencing phase, and remanded Petitioner's case for re-sentencing. See id. at 367-68. On December 6, 1979, Petitioner was re-sentenced on the murder count to life in prison. On December 19, 1983, Petitioner was re-sentenced on the armed robbery count to life in prison to run concurrently with the life sentence imposed on the murder conviction. Petitioner served his sentence and did not seek state habeas corpus relief, or otherwise challenge his 1974 Gwinnett County convictions for murder and armed robbery.

On October 18, 1991, Petitioner was paroled by the State of Georgia. Shortly thereafter, and while he was still on parole, Petitioner was arrested, tried, and convicted in the State of North Carolina on charges of kidnapping and murder. After having his initial convictions reversed on appeal, see State v. Prevatte, 346 N.C. 162, 484 S.E.2d 377, 379 (1997), Petitioner was re-tried and the jury again found Petitioner guilty of first-degree murder and two counts of second-degree kidnapping. The jury recommended, and the trial judge imposed, a sentence of death for the murder conviction and consecutive terms of imprisonment of thirty years each for the two kidnapping convictions. State v. Prevatte, 356 N.C. 178, 570 S.E.2d 440, 448-49 (2002). Petitioner's Georgia conviction for murder was presented as a "prior violent felony" statutory aggravating circumstance, and was one of four found by the jury to support its recommendation that Petitioner be sentenced to death. Id. at 483, 494. Petitioner's conviction and death sentence were affirmed by the North Carolina Supreme Court, and he remains incarcerated in North Carolina awaiting execution.

B. Petitioner's Collateral Proceedings

In February 1996, apparently while his first North Carolina conviction was pending on appeal, Petitioner filed a pro se petition for writ of habeas corpus in this Court pursuant to 28 U.S.C. § 2254, seeking to set aside his 1974 Gwinnett County convictions. (See Prevatte v. French, et al., Civil Action No. 1:96-CV-518-FMH (N.D. Ga. filed Feb. 28, 1996).) That petition was dismissed without prejudice on July 15, 1996 for failure to exhaust state remedies. (See Order of July 15, 1996[7], Prevatte v. French, et al., Civil Action No. 1:96-CV-518-FMH (N.D.Ga.1996).)

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On July 19, 1996, Petitioner filed a pro se habeas corpus petition pursuant to O.C.G.A. § 9-14-41 et seq. in the Superior Court of Gwinnett County, Georgia. That petition was initially dismissed on venue grounds, as Petitioner was then incarcerated hi North Carolina. However, the Georgia Supreme Court later reinstated the petition and remanded the case for further proceedings. (R. Ex. 2 at 3.) Petitioner, through counsel, then filed two amendments to his initial petition. In that petition, as amended, Petitioner raised the following grounds for relief:

1. Petitioner was effectively denied the right to counsel due to counsel being appointed on May 28 and 31, 1974, and Petitioner's death penalty trial starting on June 10, 1974;

2. Petitioner's attorneys had a conflict of interest as a result of representing Jordan and failed to advocate vigorously;

3. Petitioner was denied his right to remain silent as a result of extensive testimony and argument concerning his request for a lawyer and refusal to make a statement to police;

4. Petitioner was denied his right to a fair trial as a result of several instances of prosecutorial misconduct;

5. Petitioner was denied his right to a fair and impartial jury drawn from a fair cross-section of the community as African-Americans were excluded from the venire from which the jury was chosen;

6. Petitioner was denied a fair trial as a result of the trial court admitting certain State exhibits for which a proper chain of custody was not established;

7. Petitioner was denied a fair trial as result of highly prejudicial and inflammatory photographs being introduced at trial;

8. Petitioner was denied a fair trial as a result of the trial court permitting a witness to speculate as to the value of the victim's car and by failing to first qualify the witness as an expert on motor vehicle valuations;

9. Petitioner was denied a fair trial as a result of jury instructions that impermissibly shifted the burden of proof to the defense;

10. Petitioner was denied the right to effective assistance of trial and appellate counsel as a result of;

a. trial counsel's failure to seek a continuance;

b. trial counsel's continued representation despite a conflict of interest created by the joint representation of both Petitioner and Jordan;

c. trial counsel's failure to conduct a sufficient and useful factual investigation of Petitioner's case;

d. trial counsel's failure to consult with Petitioner;

e. trial counsel's failure to make an opening statement and failure to consult with Petitioner prior to waiving his opening statement;

f. trial counsel's failure to investigate the case adequately and failure to investigate alternate defenses;

g. trial counsel's failure to object to improper jury charges;

h. trial counsel's failure to object to the unconstitutional jury...

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3 cases
  • Jackson v. U.S., Civ. 1:04CV251.
    • United States
    • United States District Courts. 4th Circuit. Western District of North Carolina
    • June 19, 2009
    ...of work done in preparation for trial is grossly understated by the Petitioner, trial counsel, and habeas counsel. Prevatte v. French, 459 F.Supp.2d 1305, 1343 (N.D.Ga.2006), aff'd, 547 F.3d 1300 (11th Cir.2008). At the time of Petitioner's trial, both Lindsay and Belser were experienced at......
  • Prevatte v. French, Civil Action No. 1:02-CV-1709-RWS.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • July 24, 2007
    ...relief on this claim would "surely `violate[] the principle of treating similarly situated defendants the same,'" Prevatte v. French, 459 F.Supp.2d 1305, 1327 (N.D.Ga.2006), Petitioner's "objection" fails to address the basis for the Court's decision and ignores the alternative holdings of ......
  • Prevatte v. French, 07-14536.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • October 28, 2008
    ...his Georgia convictions pursuant to 28 U.S.C. § 2254. In a published opinion, the district court denied relief. Prevatte v. French, 459 F.Supp.2d 1305 (N.D.Ga.2006). It is this denial that we now III. STANDARDS OF REVIEW In examining a district court's denial of a § 2254 habeas petition, "w......

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