United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMMENDATION
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 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
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. 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)).
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
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.
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.
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
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.
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.
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