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Allen v. Perry

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

June 25, 2015

EUGENE ALLEN, Petitioner,


G. R. SMITH, Magistrate Judge.

A Chatham County Superior Court jury found Eugene Allen guilty of felony murder, aggravated assault, and possession of a firearm during the commission of a felony. Doc. 1 at 1. He received consecutive sentences of life in prison plus twenty years to serve. Id. Represented by counsel before this Court, he petitions for 28 U.S.C. § 2254 relief. Id. The state opposes. Doc. 6.


On May 26, 2004, petitioner repeatedly visited the home of Raheem Wilson because Wilson had "robbed" him by failing to pay for two ounces of crack cocaine. Allen v. State, 286 Ga. 392, 393-94 (2010). He finally spotted Wilson, Brandon Smalls, and Daniel Johnson sitting on the steps at an apartment complex. Id. He snuck around the building, donned a black cap, ran towards Wilson, and began firing a pistol at the group of men. He killed Wilson with a gunshot wound to the head. Id. Johnson was shot in the hand and the right buttock. Id. Smalls was not injured. Id.

A jury found Allen not guilty of malice murder, but it convicted him of two counts of felony murder, two counts of aggravated assault, and three counts of possessing a firearm during the commission of a crime. Doc. 12-5 at 19-21. At sentencing, the judge imposed the mandatory minimum sentence of life imprisonment as to the first count of felony murder and "merged" it with the second count, since Allen could "only be sentenced once for homicide." Doc. 13-4 at 116-117. He thus sentenced him to serve twenty years' imprisonment for the aggravated assault against Daniel Johnson to run consecutively to the life sentence for felony murder. Id. at 117. On the remaining charges he sentenced Allen to 35 years' probation, to run concurrently with his life-plus-twenty-year sentence. Id. at 117.

Allen's conviction and sentence survived appeal. Allen, 286 Ga. at 399. He then petitioned for habeas corpus in Calhoun County, Georgia. Doc. 8-1. That court held a hearing on the motion and denied the petition. Doc. 8-3. After his certificate of probable cause to appeal was denied, doc. 8-5, he filed the instant § 2254 petition in this court. Doc. 1.


State court adjudications must "be given the benefit of the doubt" on federal habeas review. Felkner v. Jackson, 562 U.S. 594, 131 S.Ct. 1305, 1307 (2011) (quotes and cites omitted). This Court cannot disturb them unless they

(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.

28 U.S.C. § 2254(d) (emphasis added). "Clearly established" means a Supreme Court holding, not dicta, that existed at the time of the state court decision that applied the legal principle at issue. Cullen v. Pinhoister, 563 U.S. ___, 131 S.Ct. 1388, 1399 (2011); Bowles v. Sec'y for Dep't of Corrs., 608 F.3d 1313, 1315 (11th Cir. 2010). Lower court opinions, even if directly on point, will not suffice. Bowles, 608 F.3d at 1316.

Allen thus faces a highly deferential, "difficult to meet" standard on federal habeas review. Harrington v. Richter, 562 U.S. 86, 102 (2011); Cullen 131 S.Ct. at 1398. "[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." Hill v. Humphrey, 662 F.3d 1335, 1345 (11th Cir. 2011) (en banc) ( quoting Harrington, 562 U.S. at 103).

Allen's ineffective assistance of counsel ("TAC") claims face an additional hurdle. Even when reviewed de novo, JAC claims are subject to their own internal layer of deference. Strickland v. Washington, 466 U.S. 668 (1984). "Defendant[s] must show both deficient performance and prejudice." Knowles v. Mirzayance, 556 U.S. 111, 122 (2009). A lawyer's representation is deficient when it falls below an objective standard of reasonableness. Strickland, 466 U.S. at 688. And courts apply a "strong presumption" that counsel's representation was within the "wide range" of reasonable professional assistance. Id. at 689. Strickland error must be so serious "that counsel was not functioning as the counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. To establish prejudice, the petitioner must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id.

"Surmounting Strickland's high bar is never an easy task, " Harrington, 562 U.S. at 88 (cite omitted), and no hindsight or second-guessing is permitted. Id. But where a state court has already ruled on JAC claims, the petitioner's burden of

[e]stablishing that [its] application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both highly deferential, ' id., at 689 [104 S.Ct. 20521; Lindh v. Murphy, 521 U.S. 320, 333, n. 7, 117 S.Ct. 2059) 138 L.Ed.2d 481 (1997), and when the two apply in tandem, review is doubly' so, Knowles, 556 U.S., at ____, 129 S.Ct., at 1420. The Strickland standard is a general one, so the range of reasonable applications is substantial. 556 U.S., at ____ [129 S.Ct., at 14201. Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.

Id. at 788. Because this "[d]ouble deference is doubly difficult for a petitioner to overcome... it will be a rare case in which an ineffective assistance of counsel claim that was denied on the merits in state court is found to merit relief in a federal habeas proceeding." Johnson v. Sec'y, DOG, 643 F.3d 907, 911 (11th Cir. 2011); Hamner v. Deputy Sec'y of the Fla. Dep't of Corrs., 438 F.Appx. 875, 880 (11th Cir. 2011) ("Our standard of review is doubly deferential' when a Strickland claim [is] evaluated under the § 2254(d)(1) standard.") (quoting Knowles, 129 S.Ct. at 1420).


Allen contends his appellate attorney, Richard Darden, was ineffective for: (1) not raising as error the trial court's jury instruction on a form of aggravation not charged in count 2; (2) not challenging trial counsel's failure to demur[1] to the indictment because it did not specify the cause of death; (3) not raising trial counsel's failure to object when a juror was excused outside the presence of petitioner; and (4) not raising trial counsel's failure to demur to the count 2 felony murder charge because it did not specify how the predicate felony caused the victim's death. Doc. 1 at 5-10.

A. Grounds 1 and 4

Grounds 1 and 4 involve count 2 of the indictment, which reads as follows:

COUNT 2: FELONY MURDER (O.C.G.A. § 16-5-1)
And the jurors aforesaid, in the name and behalf of the citizens of Georgia, further charge and accuse EUGENE MARKEITH ALLEN, with having committed the offense of FELONY MURDER, for that the said EUGENE MARKEITH ALLEN, in the County of Chatham and State of Georgia, on or about May 26, 2004, in the commission of a felony, to wit: aggravated assault against Raheem Wilson, caused the death of Raheem Wilson, contrary to the laws of the State of Georgia the good order, peace and dignity thereof.

Doe. 9-1 at 26. In Ground 1, Allen complains that Darden failed to raise as error the trial court's jury instruction on a form of "aggravation" not charged in count 2. Doe. 1 at 5. The judge told the jury that Allen could be convicted if he committed aggravated assault by use of a deadly weapon or had the intent to murder. But he was only indicted for committing aggravated assault by the use of a deadly weapon. Id. Allen also faults trial counsel for failing to object to count 2 as fundamentally flawed since it "never listed the manner of aggravation for the aggravated assault." Doe. 15 at 5. In Ground 4, Allen claims that Darden erred by not arguing that trial counsel was ineffective for failing to demur to count 2 because it failed to specify the victim's cause of death. Doe. 1 at 10.

While the state habeas court found that these errors were not fatal under state law, and thus Darden performed competently, it also held, without elaboration, that Allen cannot show prejudice. Doe. 8-3 at 7. The Court agrees.[2] Even if count 2 of the indictment was fatally flawed, Allen was also convicted of felony murder on count 3, which had as its predicate felony possession of a firearm by a convicted felon. Doe. 12-5 at 19; doe. 9-1 at 27. At the time of Allen's sentencing, O.C.G.A. § 16-5-1(d) provided that "a person convicted of the offense of [felony] murder shall be punished by death or by imprisonment for life." Id. (prior to 2009 amendment); see Phelps v. State, 293 Ga. 873, 878 (2013) ("Of course, a sentence of life in prison is the mandatory minimum sentence upon conviction of felony murder."). While the sentences "merged" here, since Allen "can only be sentenced once for homicide, " he would still be serving a life sentence for felony murder on count 3 even if count 2 disappeared.[3] Doc. 13-4 at 116-117.

In similar out-of-circuit cases, courts have found no prejudice where a petitioner was sentenced for one crime when the evidence did not support that conviction, but the evidence clearly established elements of another crime which carried the same mandatory sentence. See, e.g., Rainey v. Varner, 603 F.3d 189, 201-202 (3d Cir. 2010) (no prejudice where evidence was insufficient to sustain first degree murder conviction petitioner was actually sentenced on, but evidence was sufficient for second degree murder, which carried same mandatory minimum sentence); Clark v. Maggio, 737 F.2d 471, 475 (5th Cir. 1984) (same).

Unlike Rainey and Clark, this Court is not faced with a situation in which a petitioner will be forced to live the rest of his life with the social stigma attached to a first degree murder conviction that he did not commit. Here, Allen would simply have been convicted and sentenced under count 3 for felony murder - the same charge and minimum sentence as count 2 - and thus cannot show prejudice. Far from violating "clearly established Federal law, as determined by the Supreme Court of the United States, " 28 U.S.C. § 2254(d)(1), then, the state habeas court correctly concluded that Allen suffered no prejudice.

B. Ground 2

In Ground 2, Allen contends that Darden erred by not challenging the indictment's failure to specify the cause of Wilson's death. See O.C.G.A. § 16-15-1(a); Doc. 1 at 7. Additionally, he asserts that trial counsel, Willie Yancey, was ineffective for failing to move to dismiss that part of the indictment on that basis. Id.

Allen cites two cases - Hinton v. State, 280 Ga. 811 (2006), and Phillips v. State, 258 Ga. 228 (1988) - that address the failure to specify the means of death in connection with convictions for malice murder, which requires proof that a person "unlawfully and with malice aforethought, either express or implied, causes the death of another human being." O.C.G.A. § 16-15-1(a) (emphasis added). Felony murder also requires that a person, while in the commission of a felony, "cause[] the death" of another human being. O.C.G.A. § 16-5-1.

Hinton and Phillips state that it is not error for a murder charge to fail to specify the exact means of death if the circumstances of the case are too uncertain to clearly establish it. See, e.g., Phillips, 258 Ga. at 228. Neither case says it's reversible error to fail to specify the means of death when that evidence is readily available. The state habeas court held as much, stating that "the indictment does not need to specify the cause of death in order to track the language of the code, only that Petitioner caused the death of the victim during the commission of a felony."[4] Doc. 8-3 at 10. For that matter, Allen does not dispute that the charges here tracked the language of the statute.

Hence, even if Yancey had demurred to the indictment, petitioner has not shown any real likelihood that the outcome of the case would have changed. As Georgia courts have noted, "because a defendant can be re-indicted after the grant of a special demurrer, a failure to file such a demurrer generally will not support a finding of ineffective assistance of counsel." Washington v. State, 298 Ga.App. 105, 106 (2009). The state habeas court therefore reasonably applied Strickland by holding that Allen "cannot establish that, but for counsel's failure to raise these grounds on appeal, the outcome of [his] appeal would have been different." Doc. 8-3 at 10. Put another way, Allen failed to show prejudice, and there is nothing unreasonable about the state court's conclusion on that score.

C. Ground 3

In Ground 3, Allen claims ineffective assistance of appellate counsel based on trial counsel's failure to object when a juror was excused, allegedly outside Allen's presence. Doc. 1 at 8. "Had trial counsel objected, " he argues, "the issue [with juror dismissal] would have been properly preserved for appeal in which case prejudice would have been presumed [under Georgia law]." Doc. 15 at 15. By extension, Allen contends, Darden's failure to raise this issue cost him a reasonable chance that he would have won a reversal on appeal. Id.

On the second day of trial, after directing deputies to bring Allen and the jury into the courtroom, the court addressed the jury:

Good morning. You may have noticed that we are minus one juror this morning. It seems that someone got ill this morning right here at the courthouse and I had to excuse her.
That, of course, is why we have alternate jurors, because every now and then, that does happen, so luckily for us, because otherwise we might have had to start this trial all over again with a different jury, and I think you can easily understand why we wouldn't want to do that. So we can simply move right along.

Doc. 13-2 at 105-106.

Yancey did not object to the juror dismissal. At the state habeas hearing, he could not recall "whether [Allen] was present when the juror was dismissed, " while Allen "argues he was not present." Doc. 8-3 at 11. Darden, however, testified that he recalled a juror being excused and stated "if I'm not mistaken, [Allen] was present when that happened and there was no objection." Doc. 13-5 at 110. Darden acknowledged that nothing in the record showed Allen's presence when the court excused the juror, but believed he learned that from Yancey during an interview. Id. at 111. Nevertheless, Darden stated that "I think in the way that it's worded... it could possibly be a good issue, because there's nothing on the record to indicate [Allen's presence] until [the court] gets to [trial counsel]." Id. at 112.

The state habeas court ultimately concluded that Georgia law would have entitled Allen to presumed prejudice if the trial court excused the juror outside of his presence and he raised the underlying claim on direct appeal. Doc. 8-3 at 11 (citing Griffin v. Terry, 291 Ga. 326, 328 (2012)). Nevertheless, the court held that

[t]o show prejudice under Strickland where appellate ineffectiveness is alleged due to the failure to assert an error that carries presumed prejudice on direct appeal, the appellant must establish a reasonable probability that the error would have been reversible on appeal, and, to do so must establish a reasonable probability of a different outcome at trial had the error been prevented or corrected.

Doe. 8-3 at 11 (quoting Griffin, 291 Ga. at 329). It then concluded that Allen showed no prejudice because he "adduced no evidence" showing "that the result of his trial would have been different had his absence... been prevented or corrected." Id.

Ground 3 is more complex than initially meets the eye. Broken down, it necessarily asserts that (1) Allen had a right under state law to be present when the juror was dismissed (not simply when the court announced the dismissal); (2) trial counsel provided ineffective assistance by not objecting to his absence; (3) appellate counsel also provided ineffective assistance by not raising trial counsel's failure to object on direct appeal; and (4) the state habeas court unreasonably applied Strickland [5] to find that Allen showed no prejudice from appellate counsel's alleged error.

The state court in fact did not unreasonably apply Strickland, so this claim fails. The state court's treatment of Ground 3 simply applied the Griffin rule that right-to-be-present claims do not trigger presumed prejudice when raised on collateral review. Doc 8-3 at 11. In doing so, it found that Allen failed to prove a reasonable probability of a different result at trial had Yancey objected to the juror's removal. See id. At their core, Griffin and its predecessors reasoned that Strickland requires a showing of actual prejudice except in three limited circumstances, none of which are present here.[6] Griffin, 291 Ga. at 229; Reid v. State, 286 Ga. 484, 488 (2010) ("It is one thing to recognize that structural errors and defects obviate any requirement that prejudice be shown on direct appeal and rule out an application of harmless error in that context. It is another matter entirely to say that they vitiate the prejudice requirement for an ineffective assistance claim."). The Eleventh Circuit agrees and in doing so precludes Allen from showing that the state habeas decision involved an unreasonable application of federal law.

In Purvis v. Crosby, Purvis, on state collateral review and in his § 2254 petition, sought to have his conviction set aside because trial counsel failed to object when the state trial court cleared the courtroom during certain testimony. 451 F.3d 734, 735 (11th Cir. 2006). He did not raise the courtroom closure claim on direct appeal. Id. at 736. Both the state and district courts rejected his IAC claim because he failed to show a reasonable likelihood that the closure impacted the outcome of the trial. Id. at 737.

On appeal, Purvis reasoned that closure of the courtroom was structural error and therefore "justifihied] reversal even without any showing of prejudice." Id. Alternatively, he argued that he demonstrated prejudice because "an objection by counsel would have properly preserved the issue, allowing him to obtain a reversal of his conviction on appeal." Id. The Eleventh Circuit rejected both arguments, instead holding that (1) Purvis could not "show that an objection from counsel would have caused the factfinder to have a reasonable doubt about his guilt;" and (2) Strickland instructs that other than its three limited exceptions, prejudice must be shown and will not be presumed. Id. at 739-40.

The only difference here is the name of Allen's claim. Allen asserts ineffective assistance of appellate counsel, unlike Purvis' trial-related claim. But Allen's claim is a "nested" IAC-on-appeal claim, where ineffective assistance of trial counsel is the claim which appellate counsel allegedly should have raised. Hence, Allen must demonstrate the ineffective assistance of his trial counsel as well. See, e.g., Holiday v. Gilmore, 32 F.3d 570 (7th Cir. 1994) (analyzing only the ineffective assistance of trial counsel component of a "nested" claim); Potter v. Taylor, 2013 WL 5947020 at * 2 (S.D. Ga. Nov. 6, 2013) (Section 2254 petitioners must show both IAC at trial and on appeal for a "nested" claim to prevail).

Otherwise, Allen and Purvis row the same boat. Instead of Purvis' courtroom closure-based ineffective assistance claim, Allen asserts that his trial counsel failed to object to a violation of his right to be present. Doc. 1 at 8. Both courtroom closure claims under federal law and right-to-be-present claims under the Georgia constitution[7] carry presumed prejudice if asserted on direct appeal. See Wailer v. Georgia, 467 U.S. 39, 49-50 & n. 9 (1984) ("[A] requirement that prejudice be shown would in most [courtroom closure] cases deprive [the defendant] of the [public-trial] guarantee, for it would be difficult to envisage a case in which he would have evidence available of specific injury.") (quotes and cite omitted); Griffin, 291 Ga. at 327 ("[W]here structural errors are raised in the context of an ineffective assistance claim, prejudice will not be presumed."). Both Allen's and Purvis' trial attorneys failed to object to the alleged errors. Purvis, 451 F.3d at 736; doc. 13-2 at 106-08. And both argued in their state and § 2254 proceedings that prejudice should be presumed even in a collateral proceeding because the errors were structural "defect[s] affecting the framework within which [a] trial proceeds, rather than simply an error in the trial process itself." Arizona v. Fulminante, 499 U.S. 279, 310 (1991); Purvis, 451 F.3d at 737; doe 15 at 19.

Whether or not the right to be present when a court excuses jurors for illness is a structural error, [8] Purvis held ( Griffin too) that "in all but three exceptional circumstances prejudice must be shown before an ineffective assistance of counsel claim merits relief." 451 F.3d at 740. The state habeas court's application here of just that understanding of prejudice, then, cannot be "so lacking in justification that there was an error well understood... beyond any possibility for fairminded disagreement."[9] Viers v. Warden, ___ F.Appx. ____, 2015 WL 2373206 at * 11 (11th Cir. May 19, 2015) (quoting Harrington, 562 U.S. at 103).[10]

Since the state court's prejudice decision was reasonable, Allen can only prevail if the state court's finding that he failed to show prejudice constitutes an "unreasonable determination of the facts." 28 U.S.C. § 2254(d)(2). It does not. Like Purvis, Allen has not come forward with any evidence of prejudice. Instead, he offers nothing more than the argument that had trial counsel objected to the juror's dismissal and the trial court done nothing, "prejudice would have been presumed, " and thus appellate counsel should have raised the issue. Doc. 15 at 15; see Purvis, 451 F.3d at 739 (same argument rejected in courtroom closure context).[11] Without more - without something to show a reasonable probability of a different result had Allen's trial counsel objected to the exclusion of the juror - Ground 3 fails.


Eugene Allen's 28 U.S.C. § 2254 petition should be DENIED. Applying the Certificate of Appealability (COA) standards set forth in Brown v. United States, 2009 WL 307872 at * 1-2 (S.D. Ga. Feb. 9, 2009), the Court discerns no COA-worthy issues at this stage of the litigation, so no COA should issue. 28 U.S.C. § 2253(c)(1). And, as there are no non-frivolous issues to raise on appeal, an appeal would not be taken in good faith. Thus, in forma pauperis status on appeal should likewise be DENIED. 28 U.S.C. § 1915(a)(3).


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