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Merilien v. Emmons

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

June 9, 2017

SHAWN EMMONS, Defendant.



         This matter is before the Court on Magistrate Judge Alan J. Baverman's Final Report & Recommendation [130]. The R&R recommends the Court deny Petitioner Jean Jocelyn Merilien's (“Petitioner”) Amended 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus [96] (“Section 2254 Petition”). Also before the Court are Petitioner's Objections to the R&R [134], Motion for Leave to File Amended or Additional Objections [135], Motion to Change Respondent Name [136], Motion to Review Documents and Request for the Court to Review Documents to Support Objections and Amended Petition [138] (“Motion to Review Documents”), and Motion for Evidentiary Hearing to Allow Key Witness to Testify without fear of Deportation to El Salvador [139] (“Motion for Evidentiary Hearing”).

         I. BACKGROUND

         A. Facts[1]

         Petitioner, confined in Wilcox State Prison in Abbeville, Georgia, challenges his May 19, 2006, Rockdale County, Georgia convictions. Petitioner, who is a Haitian national, confessed to police that, on October 30, 2004, he “shot and killed his wife, with an automatic rifle, in the house with his children present and then gunned down and killed his mother-in-law in the same house.” ([14.2] at 6; [14.3] at 21, 24-34). Petitioner's state habeas court described Petitioner's indictment and conviction as follows:

Petitioner was indicted by the Rockdale County grand jury on March 6, 2006, for two counts of malice murder, two counts of felony murder, two counts of aggravated assault, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon. . . . The state sought the death penalty against Petitioner. . . .
On May 19, 2006, Petitioner entered a negotiated guilty plea to two counts of malice murder, and received consecutive life sentences; and possession of a firearm during the commission of a crime, for which he received a consecutive five year sentence.

([14.2] at 1-2). Petitioner did not appeal. ([96] at 2). “On December 6, 2006, Petitioner filed a motion to withdraw his guilty plea, which the court dismissed for lack of jurisdiction on December 12, 2007.” ([14.2] at 2). In his state habeas petition, filed on August 24, 2007, Petitioner raised the following grounds for relief:

1. The trial court improperly failed to
(a) “inform Petitioner of his rights prior to the guilty plea, ” causing him to “rel[y] solely on the pre-printed guilty plea form, ” and
(b) “advise Petitioner of his rights under the Geneva Convention.” 2. Trial counsel provided ineffective assistance by failing to
(a) “meet and discuss the case with Petitioner, ”
(b) “present the ‘mitigating Geneva Convention, '” and
(c) “advise Petitioner of his rights.” 3. (a) Petitioner “did not knowingly, intelligently, or voluntarily enter his guilty plea because he never waived his rights [(1)] to not incriminate himself, [(2)] to a trial by jury, [(3)] to confront his accusers, and [(4) under] the Geneva Convention.”
(b) The trial court improperly denied Petitioner “an interpreter at the guilty plea hearing, ” causing him not to “understand what he was doing.” 4. Trial counsel provided ineffective assistance by failing to
(a) “present mitigating evidence of Petitioner's social background, drug abuse, family abuse, [and] mental health impairment, ” and
(b) “investigate and engage in sufficient preparation to be able to present and explain [the] significance of all available mitigating evidence.”
5. (a) The trial court improperly “suppressed the evidence that another man allegedly committed the crime and that Petitioner was actually innocent.”
(b) “[T]he prosecutors failed to investigate the man who allegedly committed the crime and . . . failed to disclose before Petitioner's guilty plea evidence that was favorable to him to prove his innocence.”
6. “[T]he trial court violated [Petitioner's] due process rights to counsel under the [F]ifth, [S]ixth, and [F]ourteenth [A]mendments when the state used police and other law [enforcement] statements and perjured testimony to indict [him].” 7. Trial counsel provided ineffective assistance by failing to
(a) “investigate the state's evidence, ” and
(b) “cross-examine [the] state's witnesses.”
8. Trial counsel provided ineffective assistance by
(a) conspiring to have Petitioner “plead guilty to a crime of which [he] is innocent, in order to [(1)] ‘save' counsel's ‘best friend golf player' - i.e., the district attorney, [from] spend[ing] $450, 000 for a jury trial, and [(2)] keep up [counsel's] friendship with the district attorney so they both could have time to play golf together, ” and
(b) being disloyal and “racist and prejudiced against Petitioner.”
9. Trial counsel provided ineffective assistance by
(a) failing “to withdraw Petitioner's guilty plea and to perfect an appeal when Petitioner specifically instructed counsel to withdraw his plea because he was not satisfied with the sentence and the state used perjured testimony, ” and
(b) “inform[ing] Petitioner that the law did not allow for an appeal of a guilty plea, as Petitioner had waived his rights to one.”

(Id. at 2-3, 12-13, 15-16; see also [101] at 1-3 (explaining Petitioner did not raise any other claims in his state habeas petition)).

         On December 11, 2009, the state habeas court issued its Final Order denying relief to Petitioner. ([14.2] at 1). On September 7, 2010, the Georgia Supreme Court denied Petitioner's application for a certificate of probable cause to appeal ([14.4] at 1). The Court sets forth additional facts below.

         B. Procedural History

         On October 7, 2010, Petitioner filed his original Section 2254 petition. ([1] at 32). The Court determined that the original petition was timely submitted pursuant to 28 U.S.C. § 2244(d). ([85] at 3-9; [88] at 1).

         Pursuant to the Magistrate Judge's order, ([ 94] at 1-2), on May 10, 2014, Petitioner submitted his amended Section 2254 petition. On April 10, 2017, the Magistrate Judge issued his R&R. The Magistrate Judge interpreted the Section 2254 Petition as raising the same grounds adjudicated by the state habeas court, as well as additional unexhausted grounds, which the Magistrate Judge found were procedurally barred. The Magistrate Judge found that, with respect to Petitioner's claim of ineffective assistance of trial counsel, the Georgia Supreme Court's adjudication warrants deference pursuant to 28 U.S.C. §2254(d). He also found that deference is warranted on Petitioner's claims of errors preceding his guilty plea and regarding the voluntariness of his guilty plea The Magistrate Judge determined that Petitioner's actual innocence claims are not supported by reliable evidence. The Magistrate Judge recommends the Court deny Petitioner's Habeas Petition, and deny a certificate of appealability.

         On April 24, 2017, Petitioner filed his Objections to the R&R. The Objections, which consist of forty hand-written pages, largely restate the arguments Petitioner made in support of his Section 2254 Petition. Petitioner claims the Magistrate Judge failed to “fully or adequately review all [Petitioner's] claims/grounds and evidence enclosed with [his Section 2254 Petition] . . . .” (Obj. ...

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