Spencer v. Williams

         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. ...