United States District Court, N.D. Georgia, Atlanta Division
MOTION
TO VACATE 28 U.S.C. § 2254
FINAL REPORT AND RECOMMENDATION
JOHN
K. LARKINS III UNITED STATES MAGISTRATE JUDGE
Petitioner
is a state prisoner who, pro se, seeks a writ of
habeas corpus under 28 U.S.C. § 2254. [Doc. 1.]
Petitioner challenges his judgment of conviction entered in
Fulton County, Georgia. [Id.] For the reasons that
follow, the undersigned RECOMMENDS that the
petition be DENIED.
I.
BACKGROUND
A
Fulton County jury convicted Petitioner of felony murder and
other crimes in 2007. [Doc. 1.] At trial, the evidence showed
that Petitioner and the victim, Kenneth Morrell,
sold drugs on opposite corners of an intersection in downtown
Atlanta. There had been previous altercations between
[Petitioner] and Morrell, and shortly before midnight on
August 30, 2006, Morrell crossed the street and initiated a
conversation with [Petitioner]. The two men began to argue,
and [Petitioner] pulled out a gun and fired multiple shots at
Morrell before fleeing on foot. Morrell died from multiple
gunshot wounds. Several witnesses to the shooting testified
at trial.
A police officer found a large wad of cash in small bills and
a cell phone in Morrell's pocket. He did not find a gun
by the body, but a witness testified that after he heard
gunfire, he saw someone approach Morrell's body, empty
his pockets of some cash and drugs, pick up a gun that was
lying on the ground at his fingertips, and give the gun to an
associate of Morrell's across the street.
[Petitioner] was arrested nearby. When taken back to the
crime scene, he told officers that he had swallowed a large
amount of crack cocaine and wanted to die. [Petitioner] later
wrote letters to Monique Boyer asking her not to testify or
tell the police anything about his involvement in the
shooting.
Spencer v. State, 287 Ga. 434, 435 (2010). The trial
court sentenced Petitioner to “life in prison plus five
years consecutive.” Id. at 434 n.1. Through
new counsel, Petitioner appealed and raised the following
claims:
(1) the trial court erred by not holding a pre-trial
Chandler hearing pursuant to Chandler v.
State, 261 Ga. 402 (1991);
(2) the trial court erred by not asking Petitioner on the
record if he wanted to testify; and
(3) his trial counsel was ineffective because:
(a) they gave conflicting advice about whether Petitioner
should testify, and
(b) they failed to object and move for a mistrial based on a
portion of the prosecutor's closing argument.
Id. at 434, 439. The Supreme Court of Georgia
affirmed Petitioner's conviction and sentence on June 28,
2010. Id. Petitioner did not move for rehearing or
seek further appellate review.
On
November 23, 2011, Petitioner filed in the Superior Court of
Baldwin County a petition for writ of habeas corpus. [Doc.
10-2.] Petitioner raised nine challenges to his conviction.
He claimed that appellate counsel rendered ineffective
assistance of counsel for his failure to raise on direct
appeal: (1) trial counsel's failure to apprise himself of
the law regarding a Chandler motion, (2) trial
counsel's failure to object to the trial court's
decision not to apply Chandler, (3) trial
counsel's failure to properly apprise himself of the law
regarding manslaughter, (4) trial counsel's failure to
object to the admission of the Boyer letters, (5) trial
counsel's failure to investigate facts and prepare a
viable defense, (6) trial counsel's failure to object to
the prosecutor's appealing to community outrage in his
closing argument, (7) trial counsel's failure to raise
the prosecutor's tendering of the Boyer letters into
evidence, (8) trial counsel's failure to raise the
prosecutor's tendering of a false criminal history report
into evidence, and (9) trial counsel's failure to raise
the trial court's failure to give a manslaughter charge
to the jury. Following a hearing, the state habeas court
denied relief in an order filed November 4, 2015. [Doc.
10-3.] The Supreme Court of Georgia denied Petitioner's
application for a certificate of probable cause to appeal on
April 26, 2016, [Doc. 10-4], and issued the remittitur on May
18, 2016, [Doc. 10-5].
Petitioner
filed his federal habeas corpus petition in this Court on May
13, 2016, raising the following ten grounds: (1) trial
counsel rendered ineffective assistance of counsel for
failing to object and move for a mistrial when the prosecutor
vouched for a government witness in his closing argument; (2)
trial counsel rendered ineffective assistance of counsel for
failing to object to the prosecutor's rehashing testimony
during closing arguments; (3) the trial court erred in
failing to hold a pre-trial Chandler hearing; (4)
the trial court erred in failing to ascertain on the record
whether Petitioner wanted to testify; (5) the trial court
erred in charging the jury on “grave suspicion”;
(6) trial counsel rendered ineffective assistance of counsel
by failing to present Petitioner's testimony at trial;
(7) trial counsel rendered ineffective assistance for counsel
for failing to object to the prosecutor stating in closing
arguments that Petitioner sold drugs to homeless people; (8)
trial counsel rendered ineffective assistance of counsel for
failing to state “forcible felony” in his closing
argument; (9) trial counsel rendered ineffective assistance
of counsel for failing to object to the Boyer letters going
into evidence; and (10) appellate counsel rendered
ineffective assistance of counsel for failing to raise on
direct appeal the prosecutor's “This is your
community” speech during closing arguments. [Doc. 1 at
8-11.]
Respondent
filed an answer, as well as a motion to dismiss the petition
as untimely on August 18, 2016, to which Petitioner did not
respond. [Docs. 8, 9.] The undersigned recommended granting
the motion to dismiss by Final Report and Recommendation
(“R&R”) dated September 29, 2016, but
withdrew the R&R upon Petitioner's objections. [Docs.
13, 15.] Respondent filed an amended answer-response on
November 10, 2016. [Doc. 16.] Petitioner filed a brief in
support of his petition on December 27, 2016. [Doc. 26.]
II.
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