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Floyd v. Johnson

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

June 19, 2014

TONY EDWARD FLOYD, Petitioner,
v.
GLEN JOHNSON, Warden, Respondent.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

BRIAK K. EPPS, Magistrate Judge.

Petitioner, an inmate incarcerated at Ware State Prison in Waycross, Georgia, brought the above-captioned petition pursuant to 28 U.S.C. § 2254. Having considered all the relevant pleadings, for the reasons set forth below, the Court REPORTS and RECOMMENDS that Petitioner's motions to amend be DENIED (doc. nos. 13, 14, 15), his § 2254 petition be DENIED, this civil action be CLOSED, and that a final judgment be ENTERED in favor of Respondent.

I. BACKGROUND

On April 22, 2002, a Laurens County grand jury indicted Petitioner for one count of armed robbery. (Doc. no. 5-5, pp. 38-39.) Following a jury trial in the Superior Court of Laurens County, Petitioner was found guilty of armed robbery and sentenced to life imprisonment without parole. (Id. at 40-41, 143-44.) Petitioner was represented by attorney Mitch Warnock at trial. (Id. at 231.)

Petitioner filed a motion for a new trial and was appointed new counsel, attorney Morris Robertson. (Id. at 110-12, 146.) Through his new counsel, Petitioner filed an amended motion for a new trial, and the trial court denied both the original and amended motions on April 14, 2009. (Id. at 202-05). In ruling on the motions, the trial court provided the following description of the facts underlying the offense:

The evidence shows that the Defendant and Angela Polk went to Samuel Huerta's residence around 11:30 p.m. on November 27, 200[1]. Polk went into the house alone. Defendant later entered wearing a mask and carrying a gun. Huerta's wallet was taken from him. The Defendant and Polk left in Polk's car together. Huerta's wallet was found in Polk's car. Defendant turned over the BB gun used in the robbery, and a search warrant resulted in the seizure from Defendant's residence of beige pants and a black hood with a space for the eyes and nose cut out. Both Polk and Huerta testified that these items were similar to the ones used the night of the robbery.

(Id. at 204.)

Petitioner then filed a direct appeal in which he claimed that: (1) the State did not prove his identity beyond a reasonable doubt and could not rely on uncorroborated testimony of a co-defendant to do so; (2) there was insufficient evidence to support the guilty verdict; (3) trial counsel provided ineffective assistance for failing to move for a directed verdict at the conclusion of the State's case; (4) the trial court erred by allowing evidence of Petitioner's bad character to be introduced; and (5) trial counsel provided ineffective assistance for failing to object to such character evidence. The Georgia Court of Appeals affirmed Petitioner's conviction in an unpublished decision on January 28, 2010. Floyd v. State, No. A09A1841 (Ga.Ct.App. Jan. 28, 2010) (contained in Defendant's Exhibit 5 (doc. no. 5-5, pp. 27-30)).

On May 13, 2010, Petitioner filed a state habeas corpus petition in the Ware County Superior Court, in which he asserted five claims of ineffective assistance of appellate counsel based on his attorney's failure to: (1) challenge the validity of his sentence; (2) raise an insufficient evidence claim; (3) argue that the trial court erred by failing to instruct the jury regarding conspiracy; (4) argue that Petitioner's right to a fair trial had been violated by investigators' failure to preserve exculpatory evidence; and (5) argue that the trial court applied the wrong standard in denying his motions for a new trial. (Doc. no. 5-1, pp. 5-6.) Following an evidentiary hearing on September 21, 2010, the state habeas court denied the petition on July 6, 2011. (Doc. no. 5-2.) The Georgia Supreme Court denied Petitioner's application for a certificate of probable cause to appeal on April 13, 2013. (Doc. no. 5-4.)

Petitioner then timely filed the above-captioned § 2254 petition, raising four grounds for relief. (Doc. no. 1.) In Ground One, Petitioner claims the state failed to prove his identity beyond a reasonable doubt because it could not rely on uncorroborated testimony of a co-defendant to do so. (Id. at 5.) In Ground Two, he claims there was insufficient evidence to support the guilty verdict. (Id.) In Ground Three, he claims trial counsel was ineffective for failing to move for a directed verdict. (Id.) In Ground Four, Petitioner claims the trial court erred by allowing evidence of his bad character. (Id.)

On August 27, 2013, Respondent filed his answer to the § 2254 petition. (Doc. no. 4.) Petitioner thereafter filed a traverse response, a motion to amend his petition to add additional grounds for relief, and a motion for an extension of time to file a brief. (Doc. nos. 6, 7, 10.) On October 30, 2013, the Court issued an Order denying Petitioner's request for leave to amend because he did not identify the grounds he sought to add or state when he would file the requested amendment. (Doc. no. 11, pp. 1-2.) The Court instructed Petitioner how to properly amend his petition, and stated "[i]f Petitioner wishes to file such a motion [to amend] in this case, he must do so within 14 days of the date of this Order." (Id. at 2.) The Court also granted Petitioner's request for an extension to file a brief, which Petitioner submitted on November 13, 2013. (Doc. no. 12.)

Petitioner did not, however, file a motion to amend his § 2254 petition within the allotted time. Rather, Petitioner waited nearly four months to file a motion requesting leave to amend, docketed February 28, 2014, in which he again provided no description of the proposed amendment. (Doc. no. 13, p. 2.) Petitioner again asked for leave to amend in the first of two motions docketed on March 10, 2014, because "some grounds are frivilous [sic] in nature and some argued incorrectly."[1] (Doc. no. 14, p. 2.)

Petitioner filed another motion that was docketed on March 10, 2014, this one titled a motion to amend. (Doc. no. 15.) In the motion, his fourth request to amend his petition, Petitioner finally provides his proposed amended grounds. (See id.) In the first proposed ground, Petitioner claims appellate counsel was ineffective for failing to raise on direct appeal several deficiencies of trial counsel. Petitioner argues his appellate counsel should have argued that trial counsel was deficient because he: (1) did not request voice identification; (2) did not call witnesses; (3) did not request fingerprint identification; (4) coerced Petitioner to go to trial; (5) failed to investigate the case; and (6) did not inform Petitioner he could be sentenced to life without parole if he proceeded to trial. (Id. at 1-2.) In his second proposed ground, Petitioner claims the trial judge erred because he "never gave requested jury instruction to question to defendant [sic] "Where were you?"" (Id. at 2.) Finally, Petitioner seeks to add a ground for prosecutorial misconduct because the prosecutor "requested life without possibility of parole for crime [sic] without notice to seek death penalty." (Id.)

II. STANDARD OF REVIEW

Under § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"):

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court 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.

The United States Supreme Court has characterized § 2254(d) as "part of the basic structure of federal habeas jurisdiction, designed to confirm that state courts are the principal forum for asserting constitutional challenges to state convictions." Harrington v. Richter , 131 S.Ct. 770, 787 (2011). Accordingly, § 2254(d) creates a "difficult to meet and highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt." Cullen v. Pinholster , 131 S.Ct. 1388, 1398 (2011) (quoting Richter , 131 S.Ct. at 786; Woodford v. Visciotti , 537 U.S. 19, 24 (2002)) (internal citation omitted).

In Brown v. Payton , 544 U.S. 133, 141 (2005), the Supreme Court explained the difference between the "contrary to" and "unreasonable application" clauses in § 2254(d)(1) as follows:

A state-court decision is contrary to this Court's clearly established precedents if it applies a rule that contradicts the governing law set forth in our cases, or if it confronts a set of facts that is materially indistinguishable from a decision of this Court but reaches a different result. A state-court decision involves an unreasonable application of this Court's clearly established precedents if the state court applies this Court's precedents to the facts in an objectively unreasonable manner.

Id. (internal citations omitted). Thus, under § 2254(d)(1), it is not enough to demonstrate that a state court's decision is "incorrect or erroneous"; only a showing that the decision was "objectively unreasonable" will entitle a petitioner to relief. Wiggins v. Smith , 539 U.S. 510, 520-21 (2003); see also Richter , 131 S.Ct. at 786-87 ("[A] state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement."). In ...


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