United States District Court, S.D. Georgia, Augusta Division
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
BRIAN K. EPPS, Magistrate Judge.
Petitioner, an inmate at Hays State Prison in Trion, Georgia, brings 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 § 2254 petition be DENIED, this civil action be CLOSED, and a final judgment be ENTERED in favor of Respondent.
On April 28, 2009, a Richmond County grand jury indicted Petitioner for one count of malice murder, one count of felony murder, one count of armed robbery, and one count of possession of a firearm. (Doc. no. 14-7, pp. 47-49.) In a second case, on May 12, 2009, a Richmond County grand jury indicted Petitioner for one count of burglary, one count of robbery, one count of theft by receiving stolen property, and one count of possession of a firearm by a convicted felon. (Doc. no. 14-6, pp. 54-56.)
Petitioner's attorney, Amanda Grantham (nee Hudock), moved for, and petitioner received a competency evaluation. (Doc. no. 14-8, pp. 17, 25-26; doc. no. 14-7, pp. 4, 16, 50; doc. no. 14-6, pp. 25, 57.) The evaluation revealed Petitioner was competent and had no mental illnesses or defects. (Doc. no. 14-3, p. 7.) Upon receiving these results, Ms. Grantham entered into plea negotiations with the State. (Id.) On January 26, 2010, Petitioner pled guilty to each charge from the first indictment and the charge of robbery from the second indictment. (Doc. no. 14-6, pp. 57-58; doc. no. 14-7, pp. 1-4, 50; doc. no. 14-8, pp. 1-5.)
Petitioner was sentenced to life in prison, plus five years, calculated as follows: a term of life imprisonment for felony murder; twenty years for armed robbery, to run concurrent to the to the single count for felony murder; five years for possession of a firearm during the commission of a crime, consecutive to all counts; and ten years for robbery, to run concurrently with all counts. (Doc. no. 14-7, pp. 7, 44.) The single count of malice murder merged with the single count of felony murder for sentencing purposes and the remaining charges of the second indictment were dismissed through an order of nolle prosequi . (Id.) Petitioner did not file a direct appeal of his convictions.
On October 25, 2010, Petitioner filed a state habeas corpus petition asserting five claims in Lowndes County Superior Court, which was transferred to Baldwin County on February 14, 2011 when Petitioner transferred to Baldwin State Prison. (Doc. no. 14-1, pp. 1-5.) Before the transfer, he amended his petition on January 24, 2011, adding four additional claims. (Doc. no. 14-2, pp. 1-3.) In all, Petitioner asserted the following nine claims:
(1) He is being held unlawfully because "the doctor who testified to the substantial and more factual probability that the alleged murder was more than the appearance of an accidental occurrence rather than malice aforethought as an essential element to a charge of malice murder;"
(2) The trial court and his counsel erred by failing to inform petitioner of his right to appeal under O.C.G.A. § 5-6-34;
(3) His counsel was ineffective, in that counsel:
(a) Should have raised the defense of involuntary manslaughter;
(b) Failed to investigate the case;
(c) Was aware that Petitioner had no general understanding of the law or any idea as to counsel's misrepresentation and counsel's primary attention was concentrated upon a guilty plea instead of properly preparing the case;
(d) Refused to provide Petitioner with a psychiatrist at the guilty plea hearing;
(e) Did not move to withdraw Petitioner's guilty plea or inform him that he had the right to do so;
(f) Did not move to withdraw Petitioner's guilty plea or inform him that he had the right to do so after she failed to bring up his mental health history and insist on a sua sponte competency hearing; and
(g) Did not inform trial court of Petitioner's diagnosed "irresistible impulse" disorder.
(Doc. no. 14-1, pp. 1-5; doc. no. 14-2, pp. 1-3.) Following an evidentiary hearing on July 20, 2010, the state habeas court denied the petition on August 14, 2012. (Doc. no. 14-6, pp. 1-34; doc. no. 14-3.)
The state habeas court provided the following description of facts underlying the offenses when assessing Petitioner's ineffective assistance of counsel claims:
... Petitioner and a co-defendant were driving around Augusta one night. Their girlfriends were in the back seat. One of the girlfriends saw the victim wearing a gold chain. The girlfriend commented on the necklace and, suddenly, the co-defendant pulled over. When the co-defendant got out of the car, he attempted to rob the victim. However, the victim fought back. Petitioner saw that the co-defendant was struggling with the victim. When Petitioner saw this, he got out of the car, pointed a gun, and shot the victim in the head. Petitioner and his co-defendant then fled the scene.
(Doc. no. 14-3, p. 4.) The state habeas court found that Petitioner had waived Ground One by entering a guilty plea because Petitioner's admission that he was in fact guilty of the offense with which he was charged and the ensuing conviction constituted all the factual and legal elements necessary to sustain a binding, final judgment of guilt. (Id. at 2-3.) As to his ineffective assistance of counsel claims, the state habeas court found that Petitioner had not shown that Ms. Grantham had committed any error and, therefore, there could not have been any prejudice. (Id. at 3-8.) Lastly, the state habeas court found that Ground Two provided Petitioner no basis for relief because he had no state or federal constitutional right to a direct appeal in his case, however, counsel had advised Petitioner of the avenue of pursuing an appeal. (Id. at 8-9.) The Georgia Supreme Court denied Petitioner's application for a certificate of probable cause to appeal on April 15, 2013. (Doc. nos. 14-4, 14-5.)
Petitioner then timely filed his original § 2254 petition on May 17, 2013, an amended petition on June 28, 2013, and a brief in support on August 7, 2013. (See doc. nos. 1, 9, 11, 12.) Petitioner's raises the following grounds for relief:
(1) "Affidavit" in which Petitioner alleges that the "the doctor who testified to the substantial and more factual probability that the alleged murder was more than the appearance of an accidental occurrence rather than malice aforethought as an essential element to a charge of malice murder";
(2) Petitioner received ineffective assistance of counsel, in that the totality of the evidence does not support the plea that counsel "misled" Petitioner into accepting because counsel failed to raise the defense of:
(a) Voluntary manslaughter; and
(b) Involuntary manslaughter;
(3) Petitioner received ineffective assistance of counsel, in that "counsel did not investigate Petitioner's case; counsel failed to pursue all avenues based on established favorable facts and evidence brought out by co-defendant's trial; Testimony from a doctor that had nothing to gain by giving testimony of material and substantial facts;"
(4) Petitioner received ineffective assistance of counsel, in that counsel failed:
(a) To move to withdraw Petitioner's guilty plea pursuant to O.C.G.A. §§ 17-7-93(b), 22-14-1, to correct manifest injustice;
(b) To inform Petitioner of his right to withdraw his guilty plea pursuant to those statutes; and
(c) To inform Petitioner of his right to appeal;
(5) Petitioner received ineffective assistance of counsel, in that counsel was "fully" aware that he "had absolutely no general understanding of the law" or any idea of the nature of counsel's "misleading" in the guilty plea or "misrepresentation in the legal process";
(6) Petitioner received ineffective assistance of counsel, in that counsel refused to provide Petitioner with a psychological evaluation prior to the guilty plea hearing;
(7) The trial court violated his due process rights by failing to provide a mental evaluation by a psychiatrist of Petitioner's choosing;
(8) Petitioner received ineffective assistance of counsel, in that counsel "hid" Petitioner's right to appeal any of the pre-plea hearing ...