United States District Court, S.D. Georgia, Augusta Division
J. RANDAL HALL, UNITED STATES DISTRICT JUDGE
before the Court is Robert Owen Arrington's petition for
writ of habeas corpus. (Doc. 1.) Upon review, the Court
DISMISSES WITHOUT PREJUDICE Claims One, Two,
Three, Four, Five, and Seven of Petitioner's petition for
failure to plead sufficient facts. It DISMISSES WITH
PREJUDICE Claim Eight for failure to state a claim
cognizable in habeas proceedings. It allows Claim Six to
2004, a jury in the Superior Court of Richmond County,
Georgia, convicted Petitioner of murder. He was sentenced to
death. From the time of his conviction until the filing of
the current petition, Petitioner has sought relief from
various state courts on direct appeal and in habeas actions.
Petitioner now petitions this Court for a writ of habeas
Habeas Corpus Rule 4, the Court, upon receiving a petition,
must "promptly examine it." "If it plainly
appears from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district court,
the judge must dismiss the petition . . . ."
Id. If the judge does not dismiss the petition,
"the judge must order the respondent to file an answer,
motion, or other response within a fixed time, or to take
other action the judge may order." Id. Thus,
before allowing this case to proceed, the Court must first
determine whether the petitioner "is [plainly] not
entitled to relief." The Court concludes that seven of
the eight claims in Petitioner's petition do not entitle
him to relief. Claims One, Two, Three, Four, Five, and Seven
fail to meet the pleading standards of Habeas Corpus Rule
2(c). See Mayle v. Felix, 545 U.S. 644, 65.5-56
(2005). Claim Eight is not a cognizable claim in habeas
Court first discusses the fact-pleading standards of Rule
2(c). It then explains why Claims One, Two, Three, Four,
Five, and Seven do not satisfy the fact-pleading standard.
Finally, it explains why Claim Eight cannot be asserted in a
Habeas Corpus Rule 2(c)
Rule 2(c), "[h]abeas petitions must meet heightened
pleading requirements." McFarland v. Scott, 512
U.S. 849, 856 (1994) (citing 28 U.S.C. § 2254 Rule
2(c)). While complaints in a civil case must contain only
"a short and plain statement of the claim showing that
the pleader is entitled to relief, " Fed.R.Civ.P. 8(a),
petitions for habeas corpus must "specify all grounds
for relief available to the petitioner" and "state
the facts supporting each ground." Habeas Corpus Rule 2.
In other words, habeas petitions must contain "'fact
pleading' as opposed to 'notice pleading.'"
Hittson v. GDCP Warden, 759 F.3d 1210, 1265 (11th
Cir. 2014) (internal quotation marks and citations omitted).
model form made available to prisoners seeking to file a
petition stresses the fact pleading requirement. The form
states, in boldface:
(9) CAUTION: You must include in this
petition all the grounds for relief from the
conviction or sentence that you challenge. And you must state
the facts that support each ground. If you fail to set forth
all the grounds in this petition, you may be barred from
presenting additional grounds on a later date.
for Relief From a Conviction or Sentence by a Person in State
Custody, Habeas Corpus Rules, Forms App., 28 U.S.C, (emphasis
in original) . Any petitioner, even a pro se petitioner, is
therefore put on ample notice that facts must be used to
support his petition. See Borden v. Allen, 646 F.3d
785, 810 (11th Cir. 2011)("If, for example, Rule 2(c)(1)
and (2) of the § 2254 Rules should cause a petitioner
(or his counsel) to doubt what the words 'specify all
grounds' and 'state the facts supporting each
ground' mean, the CAUTION
contained in paragraph (9) of the "Instructions'
should remove such doubt.") .
purpose of fact pleading is two-fold. First, unlike civil
plaintiffs, "the habeas petitioner ordinarily possesses
or has access to, the evidence necessary to establish the
facts supporting his collateral claim; he necessarily became
aware of them during the course of the criminal prosecution
or sometime afterward." Hittson, 759 F.3d at
1265 n.63 (quoting Borden, 646 F.3d at 810). Thus,
unlike a civil plaintiff, a habeas petitioner should be able
to state the facts supporting his claim with relative
precision and without any need for discovery. See
Borden, 646 F.3d at 810 n.31 ("[A] habeas case is
not a vehicle for a so-called fishing expedition via
discovery, an effort to find evidence to support a
fact pleading helps the district court to comply with Rule
4's command that it determine whether the petitioner is
not entitled to relief. Mayle, 545 U.S. at 656. If a
petitioner fails to allege facts, the district court cannot
determine if "it plainly appears from the petition . . .
that the petitioner is not entitled to relief from the
district court." Id. at 656 (quoting Habeas
Corpus Rule 4) (internal quotation marks omitted) . Thus,
"the petition is expected to state facts that point to a
'real possibility of constitutional error.'"
Advisory Committee's Notes on Habeas Corpus Rule 4
(citing Aubut v. State of Maine, 431 F.2d 688, 689
(1st Cir. 1970)).
properly fact plead, "a petitioner must state specific,
particularized facts which entitle him or her to habeas
corpus relief for each ground specified. These facts must
consist of sufficient detail to enable the court to
determine, from the face of the petition alone, whether the
petition merits further habeas corpus review." Adams
v. Armontrout, 897 F.2d 332, 334 (8th Cir. 1990).
"Conclusory allegations which are not supported by a
statement of specific facts do not warrant habeas
relief." James v. Borg, 24 F.3d 20, 26 (9th
such academic standards are often difficult to decipher,
however, the Court examines two pleadings from actual cases -
one deficient and one sufficient. The deficient example comes
from Hittson v. GDCP. In Hittson, the
Eleventh Circuit cited the following ineffective assistance
of counsel claims as falling below the fact-pleading
[S]tate habeas counsel failed to pursue obvious avenues of
investigation, resulting in a failure to raise meritorious
and potentially meritorious claims. Ineffective Assistance
claims which Mr. Hittson believes are "substantial"
and which have "some merit" were available to be
litigated in state habeas proceedings but postconviction
counsel unreasonable [sic] failed to raise them.
Undersigned counsel represents, upon information and belief,
that Mr. Hittson!s original habeas attorneys performed no
investigation beyond the limited investigation performed by
Mr. Hittsonfs trial attorneys into Mr. Hittson1s background.
In fact, original habeas counsel appear to have raised only
claims which were apparent from a review of the trial
transcript, failing to look beyond the record in order to
determine whether Mr. Hittson1s trial attorneys failed to
discover, for instance, available and compelling mitigation
evidence. Further, original habeas counsel failed, absent any
reasonable explanation, to bring a claim which was apparent
from the record.
Mr. Hittson was Deprived of the Effective Assistance of
Counsel Due at Motion For New Trial and Direct Appeal.
Mr. Hittson Was Deprived of the Effective Assistance Of
Counsel by His Counsel's Failure to Independently
Discover Exculpatory Material Suppressed by the State.
In his motion for new trial proceeding and direct appeal . .
. [c]ounsel failed to fully research, raise, brief and
support with evidence the meritorious claims that could and
should have been raised based on the errors that occurred
during Mr. Hittson's capital trial.
759 F.3d at 1264-72. In rejecting these claims, the Eleventh
Circuit declared that: "such generalized allegations are
insufficient in habeas cases, " id. at 1265;
"[n]owhere in these generalized claims does Hittson
allege any facts that would allow a court to find xthat there
is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different, '" id. at 1271; and
the claims "did not allege any facts to support
[Petitioner's] allegations that his state habeas counsel
were incompetent . . . ." Id. at 1265.
sufficient example comes from Taylor v. Culliver,
No. 4:09-cv-00251-KOB-TMP, 2012 WL 4479151 (N.D. Ala. Sept.
26, 2012) . In Taylor, the district court concluded
the petitioner "satisfied Rule 2(c)'s threshold
requirement." Id. The petition included the
Ground III: The prosecutor engaged in racial
discrimination in jury selection in violation of Batson
v. Kentucky, 476 U.S. 79 (1986).
Supporting Facts: The prosecutor used his peremptory
challenges to strike three of the five available
African-American jurors (TR765) . In defense of his
disproportionate pattern of strikes, the prosecutor offered
pretextual reasons. As to Jeremiah Turner, the prosecutor
claimed that the venire member stated that he would not go
along with the death penalty (TR768) . As to Beverly
Brewster, the prosecutor claimed that she stated that she was
not for the death penalty and stared out the window,
appearing "flat out bored'" (TR769) . These
reasons are contradicted by the record (Turner: TR658,
679-680; Brewster: TR240, 250, 259, 280). Moreover, the
prosecutor disparately applied his stated concern regarding
hesitancy to impose the death penalty to white and
African-American venire members (see TR393-394, 398, 413,
465, 562-563, 566-567, 573-574, 580-581, 659-660, 680-683,
769-771). For example, the prosecutor declined to strike a
white venire member, whose responses actually indicated
greater reluctance to impose the death penalty, and other
white venire members whose responses were similar to the
challenged African-Americans' (TR398, 413, 562, 566-567,
580-581, 573-574, 680-683).
Ground IV: The trial court's restrictions on
voir dire examination of prospective jurors denied Mr. Taylor
a fair trial by an impartial jury and a reliable sentencing
determination in violation of the Fifth, ...