United States District Court, S.D. Georgia, Augusta Division
MAGISTRATE JUDGE'S REPORT AND
K. EM'S UNITED STATES MAGISTRATE JUDGE.
an inmate at Calhoun State Prison in Morgan, Georgia, brings
the above-captioned petition pursuant to 28 U.S.C. §
2254. The Court REPORTS and
RECOMMENDS Petitioner's § 2254
petition be DENIED, this civil action be
CLOSED, and a final judgment be
ENTERED in favor of Respondent.
case challenges the validity of Petitioner's 2013
conviction at trial in the Superior Court of Richmond County
on two counts of committing an act of child exploitation
through use of a computer or electronic device, for which the
Court sentenced Petitioner to forty years of imprisonment.
Brewer v. State, 762 S.E.2d 622, 623 (Ga.App. 2014).
A. Hix and Penelope A. Donkar represented Petitioner at
trial. (Doc. no. 15-11, p. 250.) After denial of his motion
for new trial, Petitioner, represented by James C. Bonner,
Jr. and Michael W. Tarleton, filed a direct appeal.
Brewer, 762 S.E.2d at 623.
raised a sole enumeration of error “that his
court-appointed defense counsel provided ineffective
assistance by filing a general demurrer to the State's
original indictment” because it “alert[ed] the
prosecution to [the indictment's] problems of proof
before jeopardy attached, and induc[ed] it to retreat to
charges better tailored to its proof, easier to establish,
and carrying greater sentences.” Id. at 623.
On August 6, 2014, the Georgia Court of Appeals rejected
Petitioner's contention and affirmed his convictions.
See id. at 625-26.
then filed a state habeas corpus petition on February 26,
2015, in Coffee County. (Doc. no. 15-2.) The state petition
raised five grounds:
(1) The Richmond County Grand Jury that rendered the
indictment in Petitioner's case was unconstitutionally
sworn and impaneled.
(2) Petitioner's conviction violated double jeopardy
because the first indictment against him was dismissed.
(3) Trial counsel was ineffective for failing to file a
motion to quash the second indictment.
(4) Appellate counsel was ineffective because he:
a) Did not raise the issue that trial counsel failed to
demand discharge of Petitioner after double jeopardy
b) Did not raise the issue that trial counsel failed to file
a motion to quash the second indictment.
c) Abandoned Petitioner's inappropriate application of
statutory law issue.
d) Raised only one enumeration of error.
(5) Appellate counsel was ineffective for failing to
challenge Petitioner's recidivist sentence.
subsequently amended his petition five times, adding five
additional grounds for a total of ten:
(6) Richmond County Superior Court violated Petitioner's
constitutional rights by suddenly transferring him to the
custody of the Georgia Department of Corrections.
(7) Petitioner's sentence violated equal protection
because several other child molestation defendants received
(8) Appellate counsel was ineffective for failing to raise on
appeal trial counsel's failure to request a jury charge
for the lesser included offense of electronically furnishing
obscene material to minors.
(9) Trial and appellate counsel were ineffective for failing
to challenge the trial court's “non-existent”
charge on computer child exploitation.
(10) Richmond County Superior Court did not have subject
matter jurisdiction to hold a trial and conviction of