Opinion
Civil Action No. 1:05-CV-1159-TWT-CCH, 28 U.S.C. § 2254.
February 14, 2006
ORDER FOR SERVICE OF REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Attached is the Report and Recommendation of the United States Magistrate Judge, made in accordance with 28 U.S.C. § 636(b)(1) and this Court's Local Rule 72. Let the same be filed and a copy, together with a copy of this Order, be served upon counsel for the parties.
Pursuant to 28 U.S.C. § 636(b) (1) (C), within ten (10) days of service of this Order, each party may file written objections, if any, to the Report and Recommendation. Should objections be filed, they shall specify with particularity the alleged error or errors made (including reference by page number to the transcript if applicable) and shall be served upon the opposing party. The party filing objections will be responsible for obtaining and filing the transcript of any evidentiary hearing for review by the District Court. If no objections are filed, the Report and Recommendation may be adopted as the opinion and order of the District Court and any appellate review of factual findings will be limited to a plain error review. United States v. Slav, 714 F.2d 1093, 1095 (11th Cir. 1983).
The Clerk is DIRECTED to submit the Report and Recommendation with objections, if any, to the District Court after expiration of the above time period.
IT IS SO ORDERED.
MAGISTRATE JUDGE'S ORDER AND FINAL REPORT AND RECOMMENDATION
Petitioner, Eugene Peterson, Jr., challenges via constitutionality of his June 30, 2000, Gwinnett County convictions for armed robbery and criminal attempt to commit armed robbery The matter is now before the Court on the Petition and brief in support (Doc. Nos. 1, 6), Respondent's Answer-Response and brief in support (Doc. No. 4), Petitioner's Motion to Obtain Racial Composition of Jury Panel and Jury of Petitioner's Jury Trial in Gwinnett County Superior Court (Doc. No. 5), Petitioner's Reply-Response (Doc. No. 8), and Petitioner's Motion for Status of Case (Doc. No. 9). I. BackgroundBased on crimes that occurred on July 27, 1998, at the Hometown Inn in Gwinnett County, Petitioner and others were indicted in case number 99-8-1833-4 (hereinafter "case 1833") on the following counts: Count One, armed robbery of Twana Williams; Count Two, armed robbery of Tony Thomas; Count Three, aggravated battery of Thomas; and Count Four, entering an automobile with intent to commit theft. (See Resp't Ex. 2a at 192-94,252-54.) Based on crimes that occurred on July 28, 1998, at the Villager Lodge in Gwinnett County, Petitioner and others were indicted in case number 99-13-1506-4 (hereinafter "case 1506") on the following counts: Count One, felony murder of Dialloguila Montoute; Count Two, armed robbery of Gerard Williams; Count Three, criminal attempt to commit armed robbery of Kisha Rutledge; and Count Four, aggravated assault upon Rutledge. (Id. at 44-48, 122-124.) Respondent moved to join Petitioner's trials on the above charges, and the trial court granted that motion.(Id. at 78, 91, 212, 221.) Petitioner had moved to sever his trial from that of his co-defendants; that motion apparently was granted, and Petitioner proceeded to trial alone. (See id. at 55, 317.)
In case 1833, the jury found Petitioner guilty of armed robbery of Thomas (Count Two) and entering an automobile with intent to commit theft (Count Four) but found him not guilty on the remaining counts.(Id. at 255.) In case 1506, the jury found Petitioner guilty of criminal attempt to commit armed robbery against Rutledge (Count Three) and found him not guilty on the remaining counts.(Id. at June 30, 2000, Petitioner received a 20-year sentence (to serve 15), a 10-year concurrent sentence, and a 5-year consecutive sentence on the above convictions. (Id. at 145, 260.) Petitioner (initially through trial counsel and later through appellate counsels) moved for a new trial.(Id. at 141-42, 146, 187-88, 256-57, 262, 311-12.) On October 2, 2002, the trial court denied the motion (as amended) for a new trial. (Id. at 189.)
On January 9, 2004, the Georgia Court of Appeals affirmed Petitioner's convictions.(Id. at 14-21.) Petitioner filed a state habeas corpus petition in the Superior Court of Mitchell County. (Resp't Ex. 1.) On October 21, 2004, the state habeas court denied Petitioner's state petition. (Resp't Ex. 3.) Petitioner applied in the Georgia Supreme Court for a certificate of probable cause to appeal the denial of his state habeas corpus petition, and on March 28, 2005, the Georgia Supreme Court denied that application. (Resp't Ex. 4.) Additional facts from the state court proceedings will be introduced, as necessary, below. II. Discussion
Petitioner initially raised eight grounds for relief in this Court. (Doe. No. 1.) In his Reply-Response, Petitioner withdraws Grounds Five and Eight. (Doc. No. 8 at 9.) The following six grounds remain (for clarity Petitioner's original enumerations are retained) Ground One, trial court error in jointly trying cases 1506 and 1833; Ground Two, the sufficiency of the evidence in case 1833; Ground Three, the sufficiency of the evidence in case 1506; Ground Four, trial counsel's ineffective performance in regard to jury instructions in case 1833; Ground Six, trial counsel's ineffective performance in regard to the composition of the jury; and Ground Seven, trial court error in case 1506 in regard to its evidentiary ruling on playing video-taped police interviews during trial. (Doe. No. 1 at 5-6 and attach.)
A. Federal Habeas Corpus Standard
Pursuant to 28 U.S.C. § 2254, a federal court may issue a writ of habeas corpus on behalf of a person held in custody pursuant to a judgment of a state court if that person is held in violation of his rights under federal law. 28 U.S.C. § 2254(a). This power, however, is limited. A district court may not grant an application for a writ of habeas corpus unless —
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant.28 U.S.C. § 2254(b)(1). Notwithstanding a failure to exhaust state remedies, however, a federal district court retains authority to deny a federal habeas corpus petition on the merits. 28 U.S.C. § 2254(b)(2).
Further, a federal court may not grant habeas relief on claims adjudicated by the state court unless the Petitioner shows or demonstrates that the state court adjudication resulted in a decision that (1) "was contrary to, or involved an unreasonable application of, clearly established Federal law," or (2) "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1) (2). Under the "contrary to" prong of subsection (d)(1), a federal court may grant relief if the state court (1) applied a rule that contradicts Supreme Court holdings or (2) arrives at a different result from Supreme Court precedent based on facts that are "materially indistinguishable" from the facts before the state court. Hart v. Attorney Gen. of the, State of Fla., 323 F.3d 884, 891 (11th Cir. 2003) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Under the "unreasonable application" prong of subsection (d)(1), a federal court may grant relief "`if the state court identifies the correct governing legal principle from [Supreme Court] decisions but unreasonably applies that principle to the facts' of petitioner's case." Wiggins v. Smith, 539 U.S. 510, 520-21 (2003) (citingWilliams, 529 U.S. at 413). This "unreasonable application" determination is objective, and the federal court may not issue a writ of habeas corpus simply because it concludes in its independent judgment that the state court decision was erroneous or incorrect. Id. Under subsection (d)(2), the "federal court may grant a writ of habeas corpus to a state prisoner . . . where the state court's conclusion is based on an `unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'" Henderson v. Campbell, 353 F.3d 880, 890 n. 15 (11th Cir. 2003) (quoting 28 U.S.C. § 2254(d)(2)),cert. denied, ___ U.S. ___, 125 S. Ct. 44 (2004). A state court's determination of factual issues are presumed correct unless the petitioner presents clear and convincing evidence showing otherwise. 28 U.S.C. § 2254(e).
This Court has reviewed the pleadings and exhibits and finds that the record contains sufficient facts upon which the issues may be resolved. As Petitioner has made no showing as required by 28 U.S.C. § 2254(e)(2), no federal evidentiary hearing is permitted, and the case is now ready for disposition. B. Federal Ground One — Trial Court Error in Allowing Joint Trial of Offenses 1. State Court Proceedings
Prior to trial, Respondent moved to join Petitioner's trials on the charges in indictments 1506 and 1833, and, over Petitioner's objections, the trial court granted that motion. (Resp't Ex. 2a at 78, 91, 212, 221.) (See id. at 94 ¶ 1.) The trial court rejected Petitioner's renewed joinder challenge in his motion for a new trial. (Id. at 141-42, 187-88, 189, 256-57, 311-12.) On direct appeal, Petitioner argued that the trial court erred in joining the two cases for trial. (Id. at 323-30.) He asserted that the trial court had abused its discretion and, because of the joinder, "he did not receive a fair trial." (Id. at 324.) Petitioner cited Georgia law and did not reference federal due process rights. (Id. at 324-26, 333-34.) The Georgia Court of Appeals rejected this claim and found:
The incidents occurred close in time and location. In both cases, [Petitioner] participated in armed robberies and assaults of victims in hotel rooms. By [Petitioner's] admission, both incidents were motivated by a desire to obtain drugs. And [Petitioner's account of the events shows that the two incidents were linked by nearly continuous drug use. The evidence showed a series of events connected together and evincing ongoing criminality. The trial court did not abuse its discretion by granting the motion to try the indictments together. (Id. 16-18, citations omitted.) In his state habeas petition, Petitioner, without reference to federal due process, again argued that because of the joint trial of offenses, he had not received a fair trial. (Resp't Ex. 1 at 4.) The state habeas court found that, because the Georgia Court of Appeals had rejected the claim, it did not provide grounds for state habeas corpus relief. (Resp't Ex. 3 at 3.)2. Petitioner's Argument and Respondent's Response
In this Court, Petitioner contends that the state trial court violated his constitutional right to a fair trial in allowing a joint trial of cases 1506 and 1833. (Doc. No. 1 at 5.) Petitioner argues that the joint trial of offenses confused the jury. (Id.) Petitioner argues that the jury demonstrated its confusion in case 1506 in that the jury (1) heard Rutledge testify that Petitioner "put a gun to her" and told her outside the room that he would not hurt her, but (2) inconsistently found him guilty of attempted armed robbery of Rutledge and not guilty of aggravated assault of Rutledge. (Doc. No. 6 at 12.) Petitioner argues that the jury demonstrated its confusion in case 1833 in that the jury (1) heard Twana Williams testify that Petitioner robbed her and took a bag belonging to Thomas, and did not hear testimony from Thomas, but (2) inconsistently found him guilty of armed robbery of Thomas and not guilty of armed robbery of Twana Williams. (Id. at 12-13.) Petitioner also argues that the Georgia Court of Appeals based the affirmance on the joinder claim on an unreasonable determination of the facts. (Doc. No. 8 at 5-6.) Respondent responds that Petitioner does not allege the violation of a constitutional right that warrants federal habeas corpus relief. (Doc. No. 4, Br. in Supp. at 12-15.)
3. Law and Recommendation
As stated above, a federal district court generally cannot grant relief on a claim that has not been exhausted in state court. 28 U.S.C. § 2254(b)(1).
In order to be exhausted, a federal claim must be fairly presented to the state courts. "It is not sufficient merely that the federal habeas petitioner has been through the state courts . . . nor is it sufficient that all the facts necessary to support the claim were before the state courts or that a somewhat similar state-law claim was made."McNair v. Campbell, 416 F.3d 1291, 1302 (11th Cir. 2005) (holding that petitioner must "fairly present his federal constitutional claim to the state court" and do more than "scatter some makeshift needles in the haystack" to do so) (citations omitted), petition for cert. filed, (U.S. Jan. 10, 2006) (No. 05-8664). Petitioner did not raise Ground One in state court as a federal due process claim, and the Georgia Court of Appeals did not address it as such. However, notwithstanding lack of exhaustion, Ground One should be denied on the merits. See 28 U.S.C. § 2254(b)(2).
A "simultaneous trial" for more than one offense does not entitle a federal habeas corpus petitioner to relief unless he demonstrates that the contested joinder of offenses rendered his trial "fundamentally unfair" in violation of his right to due process. Bronstein v. Wainwright, 646 F.2d 1048, 1050-51 (5th Cir. Unit B June 1981). A petitioner cannot simply speculate that prejudice resulted from the contested joinder, but must concretely demonstrate prejudice. (Id.) Here, the inconsistent verdicts of which Petitioner complains show no confusion in the juror's minds between the facts in cases 1833 and 1506. Petitioner's speculation that the jury may have been confused and his arguments regarding inconsistent verdicts fail to demonstrate any kind of fundamental unfairness in his joined trial. See id. Accordingly, he is not entitled to relief on Ground One. Because Ground One fails without reference to the Georgia Court of Appeals decision, this Court need not decide whether the appellate decision on the joinder issue was based on an unreasonable determination of the facts.
C. Federal Grounds Two and Three, Sufficiency of the Evidence 1. State Court Proceedings
On direct appeal, Petitioner argued that, under the standard ofJackson v. Virginia, 443 U.S. 307 (1979), there was insufficient evidence to support a guilty verdict for armed robbery of Thomas (case 1833, Count Two) or for criminal attempt to commit armed robbery of Rutledge (case 1506, Count Three). (Resp't Ex. 2a at 323-30.) The Georgia Court of Appeals found that:
[T]he evidence shows the following. The first incident occurred on the afternoon of July 27, 1998[,] at a hotel in Norcross. Cooper, accompanied by [Petitioner], knocked on the door of the hotel room of the victims. Once allowed inside the room, Cooper and [Petitioner] demanded money and threatened the victims. Cooper brandished a gun initially, and [Petitioner] did so later during the incident. One of the victims was tied up, beaten and shot. The room was ransacked, and the intruders left with the victims' property.
The second incident occurred about 13 hours later, and just 2 miles away. This time, one of the victims opened the door to his Norcross hotel room and let three men into the room. One of the men approached [Gerard] Williams and said he wanted to buy crack cocaine. He showed Williams some money, and Williams pulled a quantity of crack cocaine from his pants. As Williams tried to stand up, one of the men pointed a gun at his head. The other two men, including [Petitioner], also pulled out guns. [Petitioner] held a gun to [Rutledge's] face, while the other men pointed guns at Williams and Montoute. One man struck Williams in the head with a gun and took his wallet, money and jewelry. Rutledge ran out of the room and began banging on the office window for help. [Petitioner] ran out after her, said something to her, then fled. Two gunshots rang out, and the other assailants ran from the room. Montoute died from gunshot wounds.
(Resp't Ex. 2a at 16-18.) The court determined that there was sufficient evidence to support the conviction for armed robbery of Thomas (case 1833, Count Two), stating as follows:
Twana Williams testified that about 4:00 p.m, she was in the bed when someone knocked on the hotel room door. Thomas answered the door, and let [Petitioner] and Cooper into [the] room. Cooper, with whom Thomas seemed to be acquainted, asked to use the bathroom. When Cooper came out of the bathroom, he said something to Thomas, and [Petitioner] snatched the blankets off of Williams, saying "(b)itch, you know what it is. Get up." [Petitioner] held a 40-ounce glass bottle of beer over her head. She managed to slip out of the bed and into the bathroom. She heard struggling going on in the kitchen area. Both [Petitioner] and Cooper, "were like, you know what it is. Ya'll know what it is. Where the f- is the money at?" [Petitioner] questioned Thomas about the money. Williams heard two gunshots, and saw Cooper kick Thomas and beat him in the face with a pistol. [Petitioner] rummaged through Williams' purse and removed her money and car keys. He went outside and came back brandishing a gun. Williams was in the bathroom, screaming. [Petitioner] and Cooper ordered her to "shut up" and demanded more money. [Petitioner] searched the room and the couple's belongings, including Thomas' duffel bag. [Petitioner] kept some items and remarked: "just go ahead and kill them, man." At Cooper's direction, [Petitioner] ripped a phone cord out of the wall and bound Thomas with it. [Petitioner] and Cooper then left the hotel room. A rational trier of fact could have found from the evidence that [Petitioner] was guilty beyond a reasonable doubt of committing the armed robbery of Tony Thomas.
(Id. at 18-19, citations omitted.) The appellate court further determined that there was sufficient evidence to support the conviction for criminal attempt to commit armed robbery of Rutledge (case 1506, Count Three), stating as follows:
Rutledge testified that [Petitioner] held a gun to her face, while his two companions pointed guns at Diallouguila Montoute and Gerald Williams. [Petitioner] was still present when his co-indictee struck Williams in the head with a gun. Although [Petitioner] left the room when Rutledge did, he and the other men had already completed substantial steps toward robbing their victims at gunpoint. We note that [Petitioner] testified that he had been smoking crack cocaine, that he wanted more drugs but was running out of money, and that the men he was with, including Cooper from the earlier robbery, were armed and were going to the victims' hotel room to rob the occupants. The evidence was sufficient for a rational trier of fact to find [Petitioner] guilty beyond a reasonable doubt of attempting to commit the armed robbery of Kisha Rutledge.
(Id. at 21, citations omitted.) Petitioner raised the same grounds in his state habeas corpus petition (Resp't Ex. 1), and the state habeas court found that, because the Georgia Court of Appeals had considered and rejected these claims, they provided no ground for state habeas corpus relief (Resp't Ex. 3 at 2-3).
2. Petitioner's, Argument and Respondent's Response
In the instant petition, Petitioner again argues that there was insufficient evidence to support his conviction for armed robbery of Thomas (case 1833, Count Two). (Doc. No. 1 at 5; Doc. No. 6 at 14-15; Doc. No. 8 at 6-7.) Petitioner contends that (1) a detective testified that he, Petitioner, had not been armed; (2) Thomas did not testify that Petitioner had taken any of his property; and (3) only Twana Williams testified that Petitioner had taken a bag belonging to Thomas, and her testimony was inconsistent. (Doc. No. 1 at 5; Doc. No. 6 at 14-15.) Petitioner argues that no rational juror could have found him guilty of armed robbery of Thomas (case 1833, Count Two), but not guilty of armed robbery of Twana Williams. (Id. at 15.) Petitioner also argues that there was insufficient evidence to support his conviction for criminal attempt to commit armed robbery of Rutledge (case 1506, Count Three). (Doc. No. 1 at 5.) Petitioner contends that Rutledge and Gerald Williams gave conflicting testimony. Petitioner further argues that, by finding him not guilty of aggravated assault on Rutledge, the jury showed it did not believe Rutledge's testimony that he pulled a gun on her. Thus, he argues, there was no rational basis for the jury to find him guilty of attempted armed robbery. (Doc. No. 6 at 16.) Petitioner also takes issue with the Georgia Court of Appeals's factual summary. (Doc. No. 8 at 5-6.) He asserts that the record shows that he fled the scene in case 1506, and therefore, the appellate court wrongly stated that he participated in the case 1506 robbery. Petitioner further argues that he never said he was motivated by a desire to obtain drugs and the appellate court wrongly stated that he had. (Id.)
The State responds that the Georgia Court of Appeals reasonably applied the Jackson standard in reviewing the sufficiency of the evidence claims, and Grounds Two and Three provide no ground for relief. (Doc. No. 4, Br. in Supp. at 6-7.) 3. Law and Recommendation
To review a sufficiency of the evidence argument under federal due process requirements, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."Jackson v. Virginia, 443 U.S. 347, 319 (1979). The deference owed to the jury or trier of fact "sharply limit[s the] nature of constitutional sufficiency review." Wright v. West, 505 U.S. 277, 296 (1992). The jury's decisions regarding the credibility of witnesses and the weight that it wishes to assign to various testimonies are not subject to review, and, when reviewing the evidence in the light most favorable to the prosecution, "a reviewing court `faced with a record of historical facts that supports conflicting inferences must presume . . . that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.'" Id. at 296-97 (quotingJackson, 443 U.S. at 326).
In Georgia, armed robbery is committed when there is (1) an intent to commit theft, (2) the taking of property, and (3) the use of an offensive weapon. O.C.G.A. § 16-8-41(a); Jones v. State, 270 Ga. App. 368, 369, 606 S.E.2d 592, 593 (Ga.Ct.App. 2004). Criminal attempt in Georgia requires intent to commit the crime and the performance of an act that is a substantial step toward the commission of that crime. O.C.G.A. § 16-4-1.
Petitioner's disagreements with the appellate court's factual summary fail The appellate court included in its summary of the evidence in case 1506 that Petitioner fled the scene. (Resp't Ex. 2a at 16-21.) Further, that Petitioner fled does not negate the testimony that also shows: (1) Petitioner entered the hotel room with two other men, (2) Petitioner knew these men were armed and intended to rob the victims, (3) Petitioner held a gun to Rutledge's face, and (4) before Petitioner fled, one of the men struck Gerard Williams in the head and took his wallet, money, and jewelry. As to whether Petitioner stated that he was motivated by a desire to obtain drugs, Petitioner testified that: (1) he had been smoking crack cocaine on July 27, 1998, (2) at one point during that time he had $80.00, (3) he bought more crack, (4) he and others continued to smoke crack, (5) he was left with approximately $20.00, (6) he bought more crack for $10.00, and, (7) at that point in time, he was looking for a way to "make me a nice dime." (Resp't Ex. 2e at 1484-85, 1489, 1508-14, 1518, 1519.) Otherwise, Petitioner simply takes issue with the credibility of Twana Williams and Rutledge, and disapproves of the weight that the jury assigned to various aspects of the trial testimony. The undersigned finds that Petitioner fails to present clear and convincing evidence sufficient to bring into question the Georgia Court of Appeals's factual summary of the evidence presented at trial. Accordingly, that summary is properly adopted by this Court. See 28 U.S.C. § 2254(e)(1).
The Georgia Court of Appeals's summary shows that in case 1833, Twana Williams testified that Petitioner brandished a gun, Petitioner and Cooper demanded money, and Petitioner searched Thomas's duffel bag and kept some items. Those facts, if believed by the jury, are sufficient to support a conviction for armed robbery. See O.C.G.A. § 16-$-41 (a); Jones, 270 Ga. App. at 369, 606 S.E.2d at 593. As stated above, the summary also shows that in case 1506: (1) Petitioner was running out of drugs and wanted more money, (2) Petitioner was with armed persons who were going to the victims' hotel room for the purpose of robbing them, (3) Petitioner entered the hotel room with those persons, (4) Petitioner held a gun to Rutledge's face, and (5) before Petitioner left or fled, one of the men struck Gerard Williams in the head and took his wallet, money, and jewelry. Those facts, if believed by the jury, are sufficient to support a conviction for attempted armed robbery. See O.C.G.A. §§ 164-1, 16-8-41(a);Jones, 270 Ga. App, at 369, 606 S.E.2d at 593.
In light of the jury's responsibility to determine witness credibility and resolve testimonial conflicts, the Georgia Court of Appeals's conclusions on the sufficiency of the evidence are not an "unreasonable application of or "contrary to" the principles announced in Jackson, 443 U.S. at 319, and Wright, 505 U.S. at 296. Accordingly, Petitioner is not entitled to federal habeas corpus relief on Ground Two or Three.
D. Federal Ground Four-In effective Assistance of Trial Counsel in Regard to Jury Instructions 1. State Court Proceedings
In the motion for a new trial (as amended), Petitioner generally complained that trial counsel provided ineffective assistance. (Resp't Ex. 2a at 146, 262.) On direct appeal, Petitioner argued that the trial court erred in failing to give a jury instruction for the lesser included offense of robbery by intimidation in regard to the alleged armed robbery of Thomas (case 1833, Count Two), but raised no issue regarding trial counsel's performance on the matter. (Id. at 323-30.) In his state habeas corpus petition, Petitioner again argued trial court error in regard to this jury instruction (Resp't Ex. 1.)
2. Petitioner's Argument and Respondent's Response
Petitioner now asserts that trial counsel provided ineffective assistance by failing to request a written jury instruction for the lesser included offense of robbery by intimidation in regard to the alleged armed robbery of Thomas. (Doc. No. 1 at 6; Doc. No. 6 at 17-18.) Respondent argues that: (1) Petitioner procedurally defaulted this ground in state court, (2) Petitioner provides no reason why he could not have raised it in state court, and (3) Ground Four, therefore, provides no basis for federal relief. (Doc. No. 4, Br. in Supp. at 7-11.) Petitioner replies that because he is not "professionally knowledgeable," he failed to raise this issue as an ineffective assistance of trial counsel claim. (Doc. No. 8 at 8.) He also argues that based on the "miscarriage of justice" exception his procedural default should be excused. (Id.)
3. Law and Recommendation
Georgia law requires that ineffective trial counsel claims be raised at the "earliest practicable moment." White v. Kelso, 261 Ga. 32, 32, 401 S.E. 2d 733, 734 (Ga. 1991). "New counsel must raise the ineffectiveness of previous counsel. at the first possible stage of post-conviction review" — during a motion for a new trial or, if newly appointed for appeal, on direct appeal — or such claims are waived and procedurally defaulted. Id. Further, a claim that is not raised, or properly renewed, on direct appeal is deemed waived and, thus, procedurally barred from consideration in a subsequent state proceedings. Black v. Hardin, 255 Ga. 239, 239-40, 336 S.E.2d 754, 754-55 (Ga. 1985). If a state prisoner fails to properly avail himself of state remedies, federal habeas corpus review of his of her claims generally is barred. Bailey v. Nagle, 172 F.3d 1299, 1302 (11th Cir. 1999). The bar applies (1) if, based on adequate and independent state law, the state court clearly and expressly finds that, because the petitioner has failed to follow state rules, state law procedurally bars consideration of a claim, or (2) if a claim has not been properly exhausted in state court and it is clear that the state courts would refuse, because of a state procedural bar, to allow any further attempts at exhaustion. Id. at 1302-03. The federal bar may be overcome if there is a showing of (1) cause for the default and actual prejudice, or (2) a resulting fundamental miscarriage o#'justice if the federal court does not consider the claims. Bailey, 172 F.3d at 1306. To establish cause, a petitioner must show that "some objective factor external to the defense impeded [his or] counsel's efforts to comply with the State's procedural rules." Murray v. Carrier, 477 U.S. 478, 488 (1986). A fundamental miscarriage of justice is shown, and the procedural bar lifted, if the petitioner demonstrates that he is actually innocent. Id. at 496. To make a credible showing of actual innocence, Petitioner must "with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial," demonstrate that "it is more likely than not that no reasonable juror would have convicted him." Schlup v. Delo, 513 U.S. 298, 324, 327 (1995). In the event that a petitioner has procedurally defaulted claims in the state court and makes no attempt in his federal habeas proceedings to show cause or prejudice for the default, those claims are not cognizable in federal court. Gray v. Netherland, 518 U.S. 152, 162 (1996).
On direct appeal and in his state habeas corpus petition, Petitioner raised the jury-instruction claim only as a matter of trial court error. Although Petitioner had new counsel at the motion for a new trial and on appeal, in the motion for a new trial he raised only a general claim of ineffective assistance of trial counsel and on appeal he failed to raise any claim that trial counsel was ineffective on the jury-instruction issue. Accordingly, such claim is procedurally defaulted under Georgia law, and the federal bar applies. See Bailey, 172 F.3d at 1302-03; White, 261 Ga. at 32, 401 S.E. 2d at 734; Black, 255 Ga. at 239-40, 336 S.E.2d at 754-55. Petitioner fails to overcome that bar. Petitioner's lack of professional knowledge does not provide cause for a procedural default. See McCoy v. Newsome, 953 F.2d 1252, 1258 (11th Cir. 1992) (holding that pro se status, "failure to act or think like a lawyer," and/or lack of legal education do not provide cause for a procedural default). Lastly, Petitioner has made no credible showing of actual innocence that entitles him to a fundamental miscarriage of justice exception. See Schlup, 513 U.S. at 324, 327. Accordingly, Ground Four is barred from review. E. Federal Ground Six-Trial Counsel Performance and the Composition of the Jury 1. State Court Proceedings
In his motion for a new trial (as amended), Petitioner argued that trial counsel had been ineffective in failing to challenge the array of the jury panel and trial jury. (Resp't Ex. 2a at 187-88, 311-12.) After the trial court denied that motion, Petitioner did not raise the issue on direct appeal. (See id. at 189, 323-30.) In his state habeas petition, Petitioner again argued that trial counsel was ineffective in failing to challenge the array of the jury panel and the trial jury. (Resp't Ex. 1.) The state habeas court found that Petitioner had procedurally defaulted the claim and had not shown cause or prejudice to overcome his default, and concluded that the claim was barred. (Resp't Ex. 3 at 2-3.)
2. Petitioner's Argument and Respondent's Response
Petitioner argues that trial counsel provided ineffective assistance of counsel in failing to challenge the array of the jury panel and jury. (Doc. No. 1, attach.; Doc. No. 6 at 20.) Respondent argues that this Court should (1) defer to the state habeas court's determination that this claim is procedurally barred in state court and (2) decline federal review. (Doc. No. 4, Br. in Supp. at 11-12.) Petitioner replies that he raised this claim in his motion for a new trial and, thus, it was not procedurally defaulted in state court. (Doc. No. 8 at 9.)
3. Law and Recommendation
Although this Ground was raised in the motion for a new trial, under Georgia law, a claim that is not pursued on direct appeal is procedurally defaulted. See Black, 255 Ga. at 239-40, 336 S.E.2d at 754-55. Accordingly the federal bar to review applies.See Bailey, 172 F.3d at 1302-03. Petitioner fails to show cause or prejudice for the state court default of this claim, and, therefore, Ground Six is not cognizable in this Court. See Gray, 518 U.S. at 162.
F. Federal Ground Seven-Trial Court's Evidentiary Decision on Playing Video-Taped Police Interviews 1. State Court Proceedings
Petitioner raised trial court error on the video-tape issue in his motion for a new trial. (Resp't Ex. 2a at 141-42.) Petitioner did not directly appeal the issue, but did raise it in his state habeas corpus petition. (Id. at 323; Resp't Ex. 1.) The state habeas court found that Petitioner had procedurally defaulted the video-tape claim and had not shown cause or prejudice to overcome his default, and concluded that the claim was barred. (Resp't Ex. 3 at 2-3.) 2. Petitioner's Argument and Respondent's Response
Petitioner contends that the trial court violated his due process rights by denying his request to play the entire video-taped police interviews of certain witnesses in case 1506. (Doc. No. 1, attach.) Respondent argues that this Court should (1) defer to the state habeas court's determination that this claim is procedurally barred in state court and (2) decline federal review. (Doc. No. 4, Br. in Supp. at 11-12.) Petitioner replies that this issue was properly preserved at trial and, thus, was not procedurally defaulted in state court. (Doc. No. 8 at 9.)
3. Law and Recommendation
As stated above, under Georgia law, a claim of trial error that is not raised on direct appeal is deemed waived and, thus, procedurally barred from consideration in a subsequent state proceedings. Black, 255 Ga. at 239-40, 336 S.E.2d at 754-55. Accordingly the federal bar to review applies. See Bailey, 172 F.3d at 1302-03. In the instant petition, Petitioner fails to show cause or prejudice for his state court default of this claim, and, therefore, Ground Six is not cognizable in this Court. See Gray, 518 U.S. at 162. III. Conclusion
For the reasons stated above, IT IS RECOMMENDED that the instant petition (Doe. No. 1) be DENIED. IT IS ORDERED that Petitioner's Motion to Obtain Racial Composition of Jury Panel and Jury of Petitioner's Jury Trial in Gwinnett County Superior Court (Doc. No. 5) and Petitioner's Motion for Status of Case (Doc. No. 9) are DENIED as moot.
The Clerk is DIRECTED to withdraw the reference to the Magistrate Judge.