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Arrington v. Warden, GDCP

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

September 14, 2017

WARDEN, GDCP, Respondent.



         Presently 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 proceed.

         I. Background

         In May 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 corpus.

         II. Discussion

         Under 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 proceedings.

         The 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 proceeding.

         A. Habeas Corpus Rule 2(c)

         Under 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).

         The 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.

         Petition 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.") .

         The 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 claim.").

         Second, 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)).

         To 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 Cir. 1994).

         Because 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 standard:

[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.

         The 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 following claims:

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, ...

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