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Welch v. Mickens

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

April 13, 2017

MARIA DAPHNE WIGGINS WELCH, CDC # 1001264711, Petitioner,
v.
SUE MICKENS, Warden, Respondent.

          REPORT AND RECOMMENDATION

         Maria Daphne Wiggins Welch's 28 U.S.C. § 2254 petition (doc. 1) seeks relief from her jury-trial "convictions for elder cruelty and elder exploitation." Doc. 20-6 at 2 (state appellate opinion affirming her conviction). Welch[1] fought those charges at trial, through an unsuccessful motion for new trial, and on appeal ~ where she challenged evidentiary sufficiency and, through new counsel, the effectiveness of her trial counsel. Id.; see also doc. 20-3 (new trial hearing); doc. 20-4 at 4 (appeal brief).

         Having lost at each of those steps, Welch failed to take the next: state habeas relief. Instead, she came here, arguing: (1) ineffective assistance of trial counsel (his failure to present helpful evidence, etc.); (2) specific defects in the evidence used against her; and (3) trial-evidence tampering.[2] Doc. 1. The State says she never raised these issues at trial or on appeal, so they are procedurally defaulted. Doc. 14-1 at 3. Nor can she rely on ineffective assistance of counsel (as cause to overcome that default), because the state provided her a remedy to air that claim (state habeas corpus) but she bypassed it. Hence, it concludes, her claims are procedurally defaulted and barred from federal review here. Id. at 3-5 (citing, inter alia, Snowden v. Singletary, 135 F.3d 732, 736 (11th Cir. 1998)).

         I. ANALYSIS

         A. Procedural Default

         Before seeking § 2254 relief here, petitioners must "fairly present" their claims to state courts to give them a "full and fair opportunity to resolve federal constitutional claims." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Brown v. McLaughlin, 2016 WL 8229213 at * 3 (N.D.Ga. July 18, 2016); supra n. 2. Georgia enforces its default doctrines against those who do not. Each failure triggers a cascading consequence:

Under Georgia law, a ground for relief that is not raised on direct appeal cannot be asserted later in state court unless the petitioner shows cause and prejudice for the failure to raise the issue on direct appeal. Head v. Ferrell, 274 Ga. 399, 401 (2001); Gaither v. Gibby, 267 Ga. 96, 97 (1996) ("[A]ny issue that could have been raised [on direct] appeal but was not, is procedurally barred from consideration in [state] habeas corpus proceedings absent a showing of adequate cause for the failure to raise it earlier and a showing of actual prejudice." (citation omitted)). And a ground for relief not raised in a state habeas cannot be presented in another state habeas petition unless the Constitution requires otherwise or a judge finds that the ground could not reasonably have been raised in the first habeas. O.C.G.A. § 9-14-51.

Brown, 2016 WL 8229213 at *3.[3]

         State-side defaults, in turn, bleed into federal. So "if the petitioner simply never raised a claim in state court, and it is obvious that the unexhausted claim would now be procedurally barred due to a state-law procedural default, the federal court may foreclose the petitioner's filing in state court; the exhaustion requirement and procedural default principles combine to mandate dismissal." Bailey v. Nagle, 172 F.3d 1299, 1302-03 (11th Cir. 1999)); see also Mize v. Hall, 532 F.3d 1184, 1190 (11th Cir. 2008) ("A claim is procedurally defaulted if it has not been exhausted in state court and would now be barred under state procedural rules."); Johnson, 2016 WL 1055926 at * 3 (upholding State's "second wave" default as illuminated in Pope v. Rich, 358 F.3d 852, 853 (11th Cir. 2004) (petitioner was procedurally barred from raising ineffective assistance of appellate counsel claims in his § 2254 petition, even though he raised it in his unsuccessful state habeas petition, because he failed to apply for a certificate of probable cause to appeal (CPC) that denial to Georgia Supreme Court; even though a CPC grant is discretionary, such review was hardly an extraordinary remedy that prisoner could not be expected to undertake to exhaust his state law remedies)). Here, Welch dropped the ball even before the missed, state habeas hoop illuminated in Johnson and Pope: She bypassed the state habeas phase outright.

         To determine whether a claim is procedurally barred from the face of the record, federal courts ask whether it is clear from state law that any future attempts at exhaustion would be futile. See Bailey, 172 F.3d at 1305; Johnson v. Hall, 2017 WL 1097208 at * 6 (S.D. Ga. Feb. 16, 2017). The record here shows that. Note that a defendant is not required to exploit state habeas remedies, but skipping them comes at a price: Welch has now lost her chance to show cause to overcome procedural default by way of an ineffective assistance of counsel (IAC) claim (i.e., that trial or appellate counsel failed to preserve a claim, thus causing the default) because the state provided a channel for hearing her IAC claim but she bypassed it. See, e.g., Mize, 532 F.3d at 1192; Stephens v. Sect'y, Dept. of Corrections, 2016 WL 7484888 at *5 (N.D. Fla. Oct. 20, 2016) ("an ineffective assistance of counsel claim must generally be presented to the state courts as an independent claim before it can be used to establish cause for a procedural default.").

         Since Welch never raised the instant claims before, they are barred, Johnson, 2017 WL 1097208 at * 7. And any attempt to resurrect them would be barred by the "second wave" (Pope) default doctrine. Johnson, 2016 WL 1055926 at * 3.

         There is one escape hatch:

The bar to federal habeas review may be lifted if the petitioner demonstrates either (1) cause for the default and actual prejudice from the alleged violation of federal law; or (2) failure to consider the defaulted claim will result in a fundamental miscarriage of justice, i.e., the continued incarceration of someone who is actually innocent. Coleman [v Thompson, 501 U.S. 722, 750 (1991)]; Murray v. Carrier, 477 U.S. 478, 488-89, 495-96 (1986). To establish cause, a petitioner must show "that some objective factor external to the defense impeded . . . efforts to comply with the State's procedural rule." Murray, 477 U.S. at 488. To establish prejudice, "a petitioner must show that there is at least a reasonable probability that the result of the proceeding would have been different" had he presented his defaulted claim. Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir. 2003) (citations omitted). To prevail on a claim of actual innocence, a petitioner must "support his allegations of constitutional error with new reliable evidence . . . that was not presented at trial, " thereby showing "that it is more likely than not that no reasonable juror would have convicted him" had the new evidence been presented. Schlup v. Delo, 513 U.S. 298, 324, 327 (1995).

Brown, 2016 WL 8229213 at *4.

         Welch makes no such "cause" or actual innocence showing here, and in fact any ineffective assistance claim (which ordinarily can be used to show cause) is barred because the state provided a (state habeas) remedy that she bypassed. See Brown, 2016 WL 8229213 * 5 ("Because Petitioner could have raised the grounds listed above in his earlier state court proceedings but did not, he cannot now raise them in the state courts. See O.C.G.A. § 9-14-48(d)"); Murray, 477 U.S. at 488-89 (an IAC claim is cause for procedural default but it must be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default), cited in Walker v. Davis,840 F.2d 834, 839 (11th Cir. 1988). Hence, all of Welch's claims, defaulted under state law, are barred from review here. See Smith v. Murray,477 U.S. 527, 534 (1986) ("a deliberate, tactical decision not to pursue a particular claim is the very antithesis of the kind of circumstance that would ...


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