Brewer v. Ward

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BRIAN K. EM'S UNITED STATES MAGISTRATE JUDGE.

         Petitioner, 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.

         I. BACKGROUND

         This 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).

         Lyndsey 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.

         Petitioner 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.

         Petitioner 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 attached.

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.

(Id.)

         Petitioner 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 lesser sentences.

(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 Petitioner ...