United States District Court, S.D. Georgia, Augusta Division
SAJID F. LESLIE, Petitioner,
GLENN JOHNSON, Warden, Respondent.
HONORABLE J. RANDAL HALL DISTRICT JUDGE.
Sajid F. Leslie was convicted of malice murder and arson in
the Superior Court of Richmond County, Georgia, in January
2000. Through no fault of his own, his appeal was not filed
until February 8, 2012. The Supreme Court of Georgia affirmed
his conviction on February 4, 2013, concluding, inter
alia, that the evidence adduced at trial was sufficient
to support the conviction. Leslie v. State, 738
S.E.2d 42, 45 (Ga. 2013) .
then filed a state habeas petition, wherein he again
challenged the sufficiency of the evidence. After conducting
an evidentiary hearing-a hearing that was continued twice on
Petitioner's motion-the state habeas court denied relief
on December 17, 2014. The Georgia Supreme Court denied
Petitioner's request for a certificate of probable cause
to appeal on June 1, 2015.
then filed the instant case under 2 8 U.S.C. § 2254 on
August 20, 2015, again raising the ground that the evidence
presented at trial was insufficient to establish
Petitioner's guilt beyond a reasonable doubt. In his
Report and Recommendation of November 14, 2016, the United
States Magistrate Judge thoroughly and correctly explains the
stringent and highly deferential standard of review of a
state court's decision on the merits. That is, in order
to grant relief on sufficiency of the evidence grounds, a
court must determine 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. 307, 319 (1979)
(emphasis in original) (cited in Report and
Recommendation, Doc. 15, at 12). More particularly in the
context of this habeas review, this Court must determine that
the Georgia Supreme Court's application of
Jackson was unreasonable. See 28 U.S.C.
§ 2254(d)(1). In the Report and Recommendation, the
Magistrate Judge concludes that Petitioner's insistent,
contrary interpretations of the trial evidence is
"woefully inadequate to establish that the state court
unreasonably applied Jackson . . . and has not shown
the state court was objectively unreasonable in its
determination the evidence at trial was clearly sufficient
for a jury to find guilt beyond a reasonable doubt."
(Report and Recommendation, at 14-15.)
filed objections to the Report and Recommendation on January
5, 2017, in which he introduces for the first time in the
entirety of his case a discrepancy in the description of the
carburetor examined by the state's witness. In his
objections, Petitioner points out that while the state's
expert, Larry Newell, testified at trial that he examined
"a four-barrel Holley, " the property receipt from
the Georgia Bureau of Investigation (XXGBI")
describes Petitioner's carburetor as an "Edelbrock
4-Barrel Carburetor.",  (Pet.'s Objections, Doc. 19, at 8.)
"Edelbrock" and "Holley" are the names of
two different manufacturers of carburetors. According to
Petitioner, this new evidence shows that the state's
expert did not examine his actual carburetor, and therefore
the expert's testimony that Petitioner's carburetor
did not show signs of a recent backfire is irrelevant and
prejudicial. In short, Petitioner contends that the new
evidence impeaches the expert's testimony. Ultimately, upon
a de novo review of Petitioner's objections with
respect to Mr. Newell's testimony and the other grounds
raised by Petitioner, this Court adopted the Report and
Recommendation without further comment. (Order of Jan. 9,
2017, Doc. 20.) Upon entry of this Order, the Clerk of Court
entered judgment in favor of Respondent and closed the case
on January 9, 2017. (Id.)
January 17, 2017, Petitioner filed a "Motion to Expand
the Record" in which he seeks to include the GBI
property receipt and a GBI investigative note reflecting the
examination of Petitioner's vehicle. Petitioner also
filed a "Rule 60(b) Motion and Motion for
Reconsideration" on February 1, 2017. The Court will now
address each in turn.
to Expand the Record
order to expand the habeas record with new evidence, a
petitioner is required to comply with the statutory
requirements of 28 U.S.C. § 2254(e) (2) (A) . Ward
v. Hall, 592 F.3d 1144, 1162-63 (11th Cir.
2010). Thus, a petitioner must demonstrate either that his
claim relies upon a new rule of constitutional
or upon a factual predicate that could not have been
previously discovered through the exercise of due diligence.
See 28 U.S.C. § 2254(e) (2) (A) . In other
words, a petitioner must show that he made a reasonable
attempt, in light of the information available at the time,
to investigate and pursue his claims in state court.
Williams v. Taylor, 529 U.S. 420, 437 (2000) . Of
note, "where a petitioner was granted an evidentiary
hearing or other means of presenting evidence to the state
court on the particular claim, and the petitioner failed to
take full advantage of that hearing, despite being on notice
of and having access to the potential evidence and having
sufficient time to prepare for the hearing, that petitioner
did not exercise diligence in developing the factual
foundation of his claim in state court." Pope v.
Sec'y Dep't of Corr, , 680 F.3d 1271, 1289 (11th
first inquiry then is whether Petitioner in this case acted
with due diligence to present this impeachment evidence to
the state habeas court and, for that matter, to this Court in
prosecution of his § 2254 petition. The Court concludes
that he did not. While Petitioner claims that he asked his
counsel for discovery documents numerous times, the fact
remains that the trial of this case was concluded over
seventeen years ago. Tellingly, Petitioner was able to obtain
the discovery material through an open record request, yet he
does not explain why he waited over a decade to make such a
request. Further, by Petitioner's own admission he had
possession of, or at least access to, the new evidence as
early as March 2016. He had actual possession in October 2016
prior to the issuance of the Report and Recommendation.
Petitioner's hope that he could hold the information
until an evidentiary hearing was misplaced because a federal
habeas petitioner is not entitled to a hearing as of right.
In any event, Petitioner's excuses for delaying the
introduction of the new evidence demonstrate a lack of due
diligence and in no way justify the delay of sixteen years in
obtaining the documents in the first instance.
had this Court determined that Petitioner diligently sought
to develop the factual basis of his claim regarding the
carburetor discrepancy, the inquiry does not stop. Rather,
Petitioner must still persuade the Court that the proffered
evidence would affect the resolution of the claim. See
Breedlove v. Moore, 74 F.Supp.2d 1226, 1233 (S.D. Fla.
1999) (citing Bolender v. Singletary, 16 F.3d 1547,
1555 n.9 (11th Cir. 1994)). Therefore, even if Petitioner can
show he made a reasonable attempt to obtain the evidence, he
must also show that the evidence could change the outcome of
his case. See Holloway v. Martin, 2008 WL 372732, at
*2 (S.D. Ga. Jan. 30, 2008) .
case, Petitioner's § 2254 petition, his objections
to the Report and Recommendation, his motion for,
reconsideration, and his motion to expand the record demand
the conclusion from this Court that he could not be convicted
of malice murder and arson because the State relied upon
circumstantial evidence, i.e., there was no direct evidence
to identify Petitioner as the person who committed the
crimes. The new evidence he seeks to introduce further
buttresses his argument by purportedly impeaching the
State's expert who discredited the account of his
injuries. Even if the Court were to presume that the jury
would have concluded that the expert's error in
identifying the carburetor's manufacturer necessarily
proves that he did not examine Petitioner's carburetor,
this Court cannot conclude that no reasonable fact finder
would nevertheless have found Petitioner guilty beyond a
reasonable doubt. In viewing the evidence in the light most
favorable to the prosecution, there remains sufficient
circumstantial evidence to convict Petitioner. For instance,
Petitioner first told investigators that he was injured from
a motorcycle accident; the victim received a text from
Petitioner one hour prior to her murder; and Petitioner could
not corroborate his offered alibi that he was at a dog fight
in a different county when the murder occurred. Notably,
Petitioner testified at trial and denied he killed the
victim. A jury may have simply disbelieved his testimony.
short, Petitioner's motion to expand the record (doc. 22)
is DENIED because he cannot show that he exercised due
diligence in obtaining the additional exhibits, and even if
allowed, this new evidence would not compel this Court's
conclusion that the Georgia Supreme Court's application
of Jackson was unreasonable in that no rational fact
finder could have found Petitioner guilty.
60(b) Motion and Motion for Reconsideration"
Petitioner's motion was filed within twenty-eight days of
judgment, Federal Rule of Civil Procure Rule 59(e), not Rule
60(b), governs. See Rivero v. Taylor, 465
F.App'x 839, 840 (11th Cir. 2012) (holding
that motions filed within twenty-eight days of the entry of
judgment are governed by Rule 59(e), whereas later motions
are governed by Rule 60 (b)). Although Rule 59(e) does not
specify grounds for relief, courts in the Eleventh Circuit
have stated that there are three grounds justifying
reconsideration of an order: (1) an intervening change in
controlling law; (2) the availability of new evidence; and
(3) the need to correct clear error or prevent manifest
injustice. E.g., Center for Biological Diversity
v. Hamilton, 385 F.Supp.2d 1330, 1337 (N.D.Ga. 2005);
Sussman v. Salem, Saxon & Nielsen, P.A., 153
F.R.D. 689, 694 (M.D. Fla. 1994); Estate of Pidcock v.
Sunnyland America, Inc., 726 F.Supp. 1322, 1333 (S.D.
Ga. 1989). A movant must "set forth facts or law of a
strongly convincing nature to induce the court to reverse its
prior decision." Cover v. Wal-Mart Stores,
Inc., 148 F.R.D. 294, 294 (M.D. Fla. 1993).
"[R]econsideration of a previous order is 'an
extraordinary remedy, to be employed sparingly.'"
Williams v. Cruise Ships Catering & Serv.
Internat'l, N.V., 320 F.Supp.2d 1347, 1358 ...