Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Brown v. McLaughlin

United States District Court, N.D. Georgia, Atlanta Division

February 8, 2017

REGINALD BROWN, Petitioner,
v.
GREGORY MCLAUGHLIN, Respondent.

          OPINION AND ORDER

          WILLIAM S. DUFFEY, JR., UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Magistrate Judge John K. Larkins III's Final Report and Recommendation [12] (“R&R”). The R&R recommends the Court deny Petitioner Reginald Brown's (“Petitioner”) 28 U.S.C. § 2254 petition for a writ of habeas corpus [1] (“Section 2254 Petition”).

         I. BACKGROUND

         A. Facts[1]

         On October 24, 2006, Petitioner was indicted by a Fulton County grand jury for hijacking a motor vehicle, aggravated assault with intent to rob, three counts of aggravated assault with a deadly weapon, three counts of kidnapping, and three counts of possession of a firearm during the commission of a crime. ([7.8] at 13-17). A trial jury found Petitioner guilty of aggravated assault with intent to rob, two counts of aggravated assault with a deadly weapon, and one count of kidnapping. ([7.9] at 81-82).

         A summary of the evidence presented at trial is as follows:

[A]t approximately 8:30 p.m. on October 3, 2006, Kurnollion Butler, Bashona Mapp, and Rosa Davis, who were employees at a Family Dollar store in East Point, drove to a nearby bank after closing the store for the evening. Butler, who was the manager of the store, got out of her car and was walking toward the bank's ATM to make a withdrawal when she was approached by [Petitioner]. [Petitioner] pointed a gun at Butler's head and demanded that she give him “the deposit.” Butler understood [Petitioner] to be asking for the store's money, and she told him that the money remained at the store because she made deposits in the mornings. [Petitioner] then demanded that they return to the store in Butler's car to get the money.
As Butler and [Petitioner] entered the car, Mapp attempted to flee from the scene. [Petitioner] pointed the gun at Mapp, and told her that he would shoot her if she did not get back in the car. [Petitioner] demanded that the women throw their cell phones in the back of the car, and he drove Butler, Mapp, and Davis back to the Family Dollar store. [Petitioner] told the women that he would give them some money if they cooperated, and Butler told him that she would help him. When they arrived at the store, [Petitioner] told Butler to get the money and then come right back to the car, but as soon as Butler entered the store, she locked the door and called the police.
After Butler did not return to the car for several minutes, [Petitioner] began driving away from the store in Butler's car; but shortly thereafter, he stopped the car and fled on foot. Approximately two hours later, [Petitioner] was apprehended by the police when he returned to the bank to retrieve his vehicle. At trial, [Petitioner's] defense was that Butler, Mapp, and Davis were each co-conspirators with him in a scheme to steal money from the Family Dollar store, and that he could not have been convicted of kidnapping or assaulting the women because they were participants in the attempted theft.

Brown v. State, 683 S.E.2d 874, 876 (Ga.Ct.App. 2009). The trial court sentenced Petitioner to twenty years in prison on each of the four counts to run concurrently. ([7.9] at 81). Trial counsel, Barry Hazen, made a motion for new trial, which was denied.

         Appellate counsel, April Williams, was appointed to represent Petitioner. She filed an amended motion for new trial, which was denied, after an evidentiary hearing, on November 8, 2008. Appellate counsel also filed a direct appeal, raising five enumerations of error: (1) the trial court erred in denying Petitioner's motion for directed verdict as to count five of the indictment, which charged aggravated assault of Davis, where Davis testified that Petitioner never pointed a gun at her or threatened to shoot her as alleged in the indictment; (2) the trial court erred in answering a jury question incorrectly; (3) the trial court erred in not disclosing to Petitioner the contents of a note from the jury before responding to it; (4) the trial court erred in not granting Petitioner a new trial because trial counsel was ineffective for failing to obtain testimony from one of the state's witnesses that would have shown Petitioner was in a relationship with a female employee at the Family Dollar; and (5) the trial court's sentence violated Uniform Superior Court Rule 22.6(B). ([7.7] at 9). The Court of Appeals found the enumerated errors regarding the jury question were not preserved, found the remaining three claims lacked merit, and affirmed Petitioner's convictions and sentences. Brown, 683 S.E.2d at 877-78.

         On July 16, 2010, Petitioner filed a state habeas corpus petition, pro se, in the Superior Court of Macon County, alleging two grounds of ineffective assistance of appellate counsel. ([7.1]). On March 7, 2013, new counsel, Scott King and Sanford Wallack, entered appearances and amended the petition, adding several more grounds. ([7.2]). On August 28, 2013, the court held an evidentiary hearing during which depositions of Petitioner's trial and appellate counsel were entered into evidence. In a post-hearing brief, Petitioner stated he would proceed on three grounds set forth in the brief: (1) the evidence of the asportation element of kidnapping was insufficient to support Petitioner's conviction pursuant to Garza v. State, 284 Ga. 696, 702 (2008); (2) Petitioner's aggravated assault and kidnapping counts against one of the victims should have been merged for sentencing; and (3) Petitioner received ineffective assistance of appellate counsel. ([7.3] at 1).

         The state habeas court agreed that Petitioner's aggravated assault and kidnapping counts should have been merged for sentencing, but denied relief on the other two grounds on the merits. ([7.4]). On September 22, 2014, the Georgia Supreme Court denied Petitioner's application for a certificate of probable cause. ([7.5]).

         B. Proce ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.